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AB-2709 Prison visitation.(2023-2024)

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Date Published: 07/03/2024 09:00 PM
AB2709:v96#DOCUMENT

Amended  IN  Senate  July 03, 2024
Amended  IN  Senate  June 19, 2024
Amended  IN  Assembly  May 16, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 2709

Introduced by Assembly Member Bonta

February 14, 2024

An act to amend Section 6400 of, and to add Sections 2601.1, 6400.1, 6401.3, and 6402.5 to, the Penal Code, relating to corrections.


LEGISLATIVE COUNSEL'S DIGEST


AB 2709, as amended, Bonta. Prison visitation.
Under existing law, a person sentenced to imprisonment in a state prison or in a county jail for a felony offense, as specified, may, during that period of confinement, be deprived of only those rights as is reasonably related to legitimate penological interests.
This bill would prohibit a person sentenced to imprisonment in a state prison from being prevented from receiving personal visits, including, but not limited to, noncontact and family visits, unless necessary and narrowly tailored to further legitimate security and safety interests. The bill would specify conduct that could be deemed necessary and for legitimate security and safety interests if the conduct occurs within visiting areas during visiting hours or the conduct poses a clear and imminent risk of physical violence within visiting areas and during visiting hours.
Existing law authorizes the Secretary of the Department of Corrections and Rehabilitation to prescribe and amend rules and regulations for the administration of prisons. Existing law requires these regulations to recognize and consider the value of inmate visitation as a means of increasing safety in prisons, maintaining family and community connections, and preparing inmates for successful release and rehabilitation. Existing regulations create the framework for establishing a visitation process in prisons that is conducted in as accommodating a manner as possible, subject to the need to maintain order, the safety of persons, the security of institutions and facilities, and required prison activities and operations.
This bill would prohibit the department from denying or restricting in-person contact and noncontact visits, except as specified. The bill would require the department to inform both the visitor and the incarcerated person of the specific reason for any denial of a visit, as specified. The bill would require the department to provide at least 3 days of in-person visiting per week. The bill would require all infrastructure and areas initially erected for the purposes of providing family visits for incarcerated persons to be used only for the purpose of family visits, except as provided.
Existing law requires the department to develop policies related to its contraband interdiction efforts for individuals entering department detention facilities, including, but not limited to, the establishment of unpredictable, random search efforts and methods, as specified.
This bill would prohibit the department from using strip searches, visual body cavity searches, and physical body searches of visitors under 18 years of age. The bill would prohibit the department from requiring an adult visitor to consent to a strip search as a condition for entering the visiting area unless, after conducting specified searches and screenings, probable cause exists to believe contraband is present and concealed on the visitor’s person or in their body cavities. The bill would require the department, before performing a strip search of a visitor, to obtain written consent from the visitor and to inform the visitor that they may decline the search and forgo the visit for that day. The bill would require the department to maintain multiple methods by which to search visitors, including, but not limited to, metal detectors, body scanners, and other contactless screening methods. The bill would authorize the department to conduct a strip search of minors if the department has probable cause and obtains a warrant to search. The bill would require the department, when there is probable cause that a minor visitor is attempting to introduce contraband, unauthorized substances, or other unauthorized items into the institution, to notify the individual and their parent or guardian in writing, and would require the department to obtain consent from the minor and their guardian before conducting a search. The bill would permit the department to offer a noncontact visit, if feasible, or deny the visit if the minor and their parent or guardian do not consent to the minor being searched. The bill would require the department to issue a written notice detailing the reason for denial or restriction, as specified, if a visitor is denied vitiation visitation or has visitation restricted.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) In 2009, the Legislature passed Senate Concurrent Resolution No. 20 (Res. Ch. 88, Stats. 2009) which encouraged the Department of Corrections and Rehabilitation to use the bill of rights created by the San Francisco Children of Incarcerated Parents Partnership as a framework for analysis and determination of procedures when making decisions about services for the children of incarcerated parents.
(2) The bill of rights created by the San Francisco Children of Incarcerated Parents Partnership includes all of the following:
(A) A child has the right to speak with, see, and touch their parents. Actions to realize this right include, but are not limited to, providing access to visiting rooms that are child-centered, nonintimidating, and conducive to bonding, considering proximity to family when locating prisons and assigning incarcerated persons, and encouraging child welfare departments to facilitate contact.
(B) A child has the right to support as that child faces a parent’s incarceration. Actions to realize this right include, but are not limited to, training adults who work with young people to recognize the needs and concerns of children whose parents are incarcerated, providing access to specially trained therapists, counselors, and mentors, and allocating 5 percent of the corrections-related budget to support the families of incarcerated persons.
(C) A child has a right to a lifelong relationship with their parent. Actions to realize this right include, but are not limited to, reexamining the federal Adoption and Safe Families Act of 1997, designating a family services coordinator at prisons and jails, supporting incarcerated parents on reentry, and focusing on rehabilitation and alternatives to incarceration.
(3) The principles announced in the bill of rights created by the San Francisco Children of Incarcerated Parents Partnership additionally apply to close family members and loved ones of incarcerated people, including individuals with family-like relationships who are often excluded under unduly narrow legal definitions of family members.
(4) In resolution A/RES/70/175 (December 2015), the General Assembly of the United Nations adopted the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the “Mandela Rules.” The Mandela Rules require that incarcerated persons be permitted to maintain regular communication with family and friends by visits, telephone, electronic or digital communications, and mail (Rule 58). Further, the Mandela Rules provide that “disciplinary sanctions or restrictive measures shall not include the prohibition of family contact” (Rule 43).
(5) Article 16(3) of the Universal Declaration of Human Rights and Article 23(1) of the International Covenant on Civil and Political Rights establish the family as “the natural and fundamental group unit of society and is entitled to protection by society and the State.”
(6) Family bonds extend through prison gates and must be protected during periods of incarceration by promoting in-person contact and regular communication between incarcerated persons and their families.
(7) The American Bar Association established the Criminal Justice Standards on the Treatment of Prisoners (February 2010), which requires correctional authorities to provide incarcerated people with “conditions conducive to maintaining healthy relationships with their families” (Standard 23-1.2(a)(vi)).
(A) Standard 23-8.5(b) directs correctional authorities to implement visiting policies that support maintaining healthy family relationships by providing sufficient visiting space, convenient visiting times, and family-friendly environments.
(B) Standard 23-8.5(c) directs that visitors not be unreasonably excluded on the basis of past criminal convictions.
(C) Standard 23-8.5(e) directs that contact visits be provided to persons incarcerated for more than 30 days absent an individual determination that a contact visit between a particular incarcerated person and a particular visitor poses a specified danger. Prison officials should develop other forms of communication, including video visits, “provided that such options are not a replacement for opportunities for in-person contact.”
(8) Family support and connections can help promote an incarcerated person’s reentry and reduce recidivism. Protecting and promoting in-person family contact for an incarcerated person and their family can help to maintain those connections and that support.
(A) As early as January 1972, a study by the then-California Department of Corrections Research Division identified its “central finding” as “the discovery of a strong and consistently positive relationship between parole success and the maintenance of strong family ties while in prison. . . . evidence suggests that the inmate’s family should be viewed as the prime treatment agent and family contacts as a major correctional technique.” (Research Report No. 46, Explorations in Inmate-Family Relationships, in collaboration with the Research Division of the California Department of Corrections at 111–113).
(B) A review of 50 years of empirical research by the Prison Policy Initiative (December 2021) found that researchers in multiple states consistently concluded that visitation, mail, phone, and other forms of contact between incarcerated people and their families have positive impacts for both the incarcerated person and their family, including better health, reduced recidivism, and improvement in children’s school performance. In particular, the review affirmed “In-person visitation is incredibly beneficial, reducing recidivism and improving health and behavior.”
(C) Research shows that visits and family programming reduce disciplinary infractions, increase the chances of successful parole, and decrease recidivism rates upon release and reentry into the community. Many incarcerated people rely on their families immediately after release to overcome reentry obstacles, including unemployment, debt, and homelessness.
(9) Research confirms that incarceration imposes heavy burdens on the families of incarcerated people, including trauma for the children of incarcerated parents, as recognized on the adverse childhood experience index, in addition to the high costs of maintaining contact by telephone and visits. Consistent visits also have the potential for reducing the likelihood of intergenerational cycles of criminality and incarceration.
(10) Isolation from lack of visits and limited phone communications adversely affects the mental health of incarcerated people and contributes to mental suffering and conflict within prisons.
(11) The COVID-19 pandemic has exacerbated these burdens for families and adverse effects of isolation for incarcerated persons. From March 2020 to April 2021, in-person visits were canceled. In-person visits were severely restricted thereafter and were canceled intermittently due to periodic COVID-19 outbreaks. In September 2022, COVID-19 restrictions for in-person visits were lifted.
(b) Therefore, it is the intent of the Legislature to strengthen and protect the ability of incarcerated persons to receive personal visits to support the emotional health of Californians and their incarcerated loved ones, to improve in-custody conduct, and to reduce recidivism.
(c) It is the Legislature’s further intent to strictly limit the circumstances under which in-person visitation between an incarcerated person and their family can be denied, restricted, terminated, or suspended.

SEC. 2.

 Section 2601.1 is added to the Penal Code, to read:

2601.1.
 (a) A person sentenced to imprisonment in a state prison shall not be prevented from receiving personal visits, including, but not limited to, noncontact, contact, and family visits, unless such deprivation is necessary and narrowly tailored to further legitimate security and safety interests.
(b) Any restriction or deprivation of access to personal visiting, including family visits, shall be deemed necessary and for legitimate security and safety interests only if it arises from conduct described in paragraph (1) through (5), inclusive, of subdivision (d) of Section 6400.1 occurring within visiting areas during visiting hours or conduct that poses a clear and imminent risk of physical violence within visiting areas during visiting hours.

SEC. 3.

 Section 6400 of the Penal Code is amended to read:

6400.
 Amendments to existing regulations and any future regulations adopted by the Department of Corrections and Rehabilitation that may impact the visitation of incarcerated persons shall do all of the following:
(a) Recognize and consider the value of visiting as a means to improve the safety of prisons for both staff and incarcerated people.
(b) Recognize and consider the important role of visitation in establishing and maintaining a meaningful connection between incarcerated people and their family and community.
(c) Recognize and consider the important role of visitation in preparing an incarcerated person for successful release and reintegration into society with prosocial skills.

SEC. 4.

 Section 6400.1 is added to the Penal Code, to read:

6400.1.
 (a) For the purposes of this section, the following definitions apply:
(1) A visit is “denied or restricted” when it is disapproved, suspended, revoked, or terminated early, except to equitably accommodate visiting room overcrowding, or and when a visitor is excluded or any other administrative action that reduces a specified incarcerated person’s or visitor’s access to visiting.
(2) A “family visit” is an in-person contact visit that occurs overnight in a private, apartment-like facility on prison grounds in which only eligible incarcerated people and eligible immediate family members, as both are defined in regulations by the Department of Corrections and Rehabilitation, may participate.
(3) A “disciplinary sanction” is any consequence of a sustained finding of a serious rule violation pursuant to a disciplinary hearing, including a change in privilege group, except that incarcerated people may be limited to noncontact visits when placed in administrative segregation or Security Housing Units (SHU).
(b) Denials of or restrictions on visits or visiting access pursuant this section shall not exceed what was permissible under department regulations as of January 1, 2025.
(c) An in-person noncontact and contact visit, including a family visit for eligible persons, shall not be denied or restricted by the Department of Corrections and Rehabilitation for any of the following reasons:
(1) As a disciplinary sanction against an incarcerated person except as discipline for an offense listed in subdivision (d) that occurred during a visit.
(2) Because of a visitor’s criminal, juvenile delinquency, or other history of involvement with law enforcement or the criminal justice system, whether or not it resulted in a criminal conviction, other than a conviction for an offense listed in subdivision (d).
(3) Because of a visitor’s current status of being under supervision, including, but not limited to, parole, postrelease community supervision, probation, or informal probation supervision.
(4) Because of a visitor’s previous incarceration, including incarceration in the facility where the visit will take place.
(5) Because of a visitor’s pending criminal charges other than for an offense listed in subdivision (d).
(6) Because of a visitor’s outstanding unpaid fines, fees, or restitution.
(7) Because of an incarcerated person’s criminal, juvenile delinquency, or other history of involvement with law enforcement or the criminal justice system, regardless of whether it resulted in a criminal conviction, other than a conviction for an offense set forth under subdivision (d), except when required by Section 1202.05 or required or permitted by regulation in existence as of January 1, 2025, based on convictions or arrests for sex crimes against minors. However, family visits with a specific visitor may be denied or restricted because of an incarcerated person’s convictions for registerable sex offenses or violence against a specific visitor, a family member, or against a minor in the person’s care or custody if there is a substantial risk of violence or sexual abuse against that specific visitor.
(d) A visitor or incarcerated person may have visits denied or restricted only based on the following conduct during a visit:
(1) Possession of contraband while in or exiting the visiting area.
(2) Engaging in any sexual conduct with a minor.
(3) Engaging in sexual conduct with adults outside of a family visit.
(4) Committing physical violence during a visit or the visitor screening process.
(5) Escaping or aiding an escape or attempting to commit these acts.
(6) Visitors may be denied visiting access pursuant to reasonable uniformly enforced departmentwide regulations, communicated to the public with adequate and timely notice, related to identification, dress, intoxication, search procedures, and authorization for visits by minors that are consistent with this section and Section 2601.5.
(e) The department may require applicants for approval as visitors to provide sufficient information to enable it to obtain the applicant’s criminal history records from the Department of Justice. The department shall not require applicants to itemize their own criminal history, dates, or dispositions and shall not consider such voluntarily submitted information in determining whether to approve or deny the application.
(f) When incarcerated persons are limited to in-person, noncontact visits, the length and frequency of their in-person, noncontact visits and video calls shall equal the length of in-person contact visits and video calls available to the general population, reasonable space permitting.
(g) (1) In the case of a denial of a request for a visit, both the visitor and the incarcerated person shall receive written notice of the denial within five days of such a decision being made. Due to the indefinite time periods required to complete judicial and administrative proceedings, no applicant shall be restricted from reapplying for visitation for longer than 15 days for any denial of approval to visit for a reason not listed in subdivision (d).
(2) The notice shall include the date or dates of the decision and its effect together with the name, title, and institutional affiliation of the decisionmaking official. Except as specified in paragraph (3), the notice shall also state the reason for the denial.
(3) When the grounds for denial include any criminal record information, alleged personal conduct, or any other personal or private information about either or both parties, only the person to whom that information pertains, or about whom the allegations are made, shall receive a detailed specification of the reasons for the denial.
(4) Notice of denial in all instances shall include written instructions on all procedures for appeals. Nothing in this section shall be interpreted to restrict the legal remedies available to incarcerated persons or to nonincarcerated visitors to dispute or redress denials of visitations.
(h) An incarcerated person shall not be required to withhold consent to a visit as a disciplinary sanction, as a means of avoiding a disciplinary sanction, or as a condition of participating in or enjoying any privilege or program while incarcerated.
(i) The Department of Corrections and Rehabilitation shall reinstate personal visits, including in-person visits and family visits, that were restricted or prohibited contrary to the standards created in this section before January 1, 2025.
(j) To the extent that rules and standards regarding visitation, as prescribed in Title 15 of the California Code of Regulations, Department Operation Manuals, any other facility plan of operation or operational plan, conflict with this section, the Department of Corrections and Rehabilitation shall adopt regulations, policies, and procedures that conform with this section and are readily accessible.

SEC. 5.

 Section 6401.3 is added to the Penal Code, to read:

6401.3.
 (a) At each facility, the department shall provide at least three days of in-person visiting per week. The department shall make strenuous efforts to maximize visiting space in order to accommodate as many visitors as possible in family-friendly settings. If in-person visiting is impossible due to a public health emergency, natural disaster, or other state of emergency, the in-person visiting hours shall be replaced by an equal number of video calling hours in addition to the regular video calling hours. Once the emergency is over, in-person visiting shall be immediately reinstated.
(b) At each facility, building and strengthening family bonds through in-person visiting shall be a focus of each administration. Therefore, the department shall ensure that a family visiting program is provided for all eligible incarcerated persons, free of unwarranted and unnecessary obstructions, impediments, or infringements.
(c) All infrastructure, resources, and areas initially erected for the purpose of providing and facilitating family visits for incarcerated persons shall only be used for the purpose of family visits.
(d) (1) Except as provided in paragraph (2), staff or other departments outside of visiting departments shall not be allowed to infringe, control, or occupy any resources or structures that were used, built, contracted, or funded for the purpose of facilitating and providing family visits for incarcerated persons.
(2) Facilities that had been repurposed, prior to January 1, 2025, for direct service to incarcerated persons that cannot be provided elsewhere in the institution may continue to be used for that purpose.
(3) Any facility with resources, structures, or spaces being utilized in conflict with the governing standards of this section are contrary to the Legislature’s intent and beliefs that creating and strengthening family bonds are essential to achieving rehabilitation.
(4) To the extent that practices, rules, and standards, as prescribed in Title 15 of the California Code of Regulations, Department Operation Manuals, any other facility plan of operation or operational plan conflict with this section, the Department of Corrections and Rehabilitation shall adopt and institute practices and regulations that conform with this section.

SEC. 6.

 Section 6402.5 is added to the Penal Code, to read:

6402.5.
 (a) For the purposes of this section, “strip search,” “visual body cavity search,” and “physical body cavity search” have the same meaning as defined in Section 4030.
(b) The Except as specified in subdivision (d), the department shall not conduct strip searches, visual body cavity searches, and physical body cavity searches of visitors who are under 18 years of age.

(c)If a visitor is unable to or does not consent to search by a metal detector, body scanner, or similar contactless screening method, or if the visitor requires further screening after undergoing such a search, the department shall, with the written consent of the visitor, conduct a pat down or thorough clothing search of the individual. A thorough clothing search shall not require the removal of any clothing except outerwear such as jackets or coats.

(d)(1)The department shall not require an adult visitor to consent to a strip search as a condition for entering the visiting area unless, after conducting the searches described in subdivision (c), probable cause exists to believe contraband is present and concealed on the visitor’s person or in their body cavities.

(2)The department shall not perform a strip search of a visitor without both obtaining consent in writing and informing the visitor that they may decline the search and forgo the visit for that day. The department shall not require a visitor to undergo a strip search due to the visitor’s failure of a search or refusal to be searched on a previous day. The department shall retain a record of the consent or declination form and a record of the search results, whether positive, negative, or inconclusive, and shall provide a true and complete copy of the record to the person searched or proposed to be searched.

(c) (1) The department shall maintain multiple methods by which to search visitors, including, but not limited to, metal detectors, body scanners, passive canine air scanning teams, or other contactless screening methods. If a visitor is unable to or does not consent to search by a metal detector, body scanner, or similar contactless screening method, or if the visitor requires further screening after undergoing such a search, the department shall, with the written consent of the visitor, conduct a pat down or thorough clothing search of the individual. A thorough clothing search shall not require the removal of any clothing except outerwear such as jackets or coats.
(2) This subdivision does not require the department to have all of the search options described in paragraph (1) available at each institution.
(d) If the department has probable cause and obtains a warrant to search, the department shall have the ability to conduct strip searches of minors. If there is probable cause that the minor is attempting to introduce contraband, unauthorized substances, or other unauthorized items into the institution, the department shall notify the minor and their parent or guardian in writing, and the department shall receive written consent from the minor and their parent or guardian prior to conducting the search. If probable cause exists but the minor and their parent or guardian do not consent to the minor being searched, the department may offer a noncontact visit, if feasible, or deny the visit.
(e) Any visitor who is denied visitation or has visitation restricted due to failing a search or refusing to consent to a search shall, at the time of such denial, be issued a written notice detailing the reason for the denial or restriction, including a list of any contraband items found.