Legal Challenge to Packages
Submitted by UNION to Mr. Rick Grentz in advance of the March 5, deadline
NOTICE OF CHANGE TO DIRECTOR'S RULES ("NCDR"--NO. 03/06) CALIFORNIA CODE OF REGULATIONS, TITLE 15, §§ 3044, 3092,
3138, 3190, AND DEPARTMENT OPERATIONS MANUAL ("DOM"), § 54030 ET SEQ. (ARTICLE 43) REGARDING INMATE PROPERTY AND MANDATORY VENDOR QUARTERLY PACKAGE PROGRAM
A. General Allegations:
This action challenges implementation of Notice of Change of Director's Rules No. 03/06 (hereinafter "NCDR"), regarding California Code of Regulations ("CCR"), Title 15, §§ 3044, 3092, 3138, 3190 (Exhibit A, attached and incorporated); and Department Operations Manual ("DOM'°), § 54030 [draft--now believed signed and approved] Article 43-Inmate Property (Exhibit B, attached and incorporated)--without compliance with the full requirements of the Administration Procedures Act ('°APA"). With the limited exceptions not applicable here, the APA provides that every proposed adoption or change in the rules and regulations of, inter alia, the CDC, must provide for public input to its enactment, by the Director, California Department of Corrections ("CDC"). Withholding vital information, practices, procedures, and DOM Article 42 from the public through this less than forthright NCDR will create "under-ground-rules."
Various procedures, including public notice of and hearings on the proposed rule change, are mandated by the APA to this end. However, through the Government Code, §§ 11370 f; and Penal Code, 5058(1), states:
"Regulations adopted by the director or the director's designee applying to any legislatively mandated or authorized . . . program or a departmentally authorized . . , program, provided that an estimate of fiscal impact is completed pursuant to § 6055. . .''
Absolutely no effort was made to comply with the APA and Government Code, § 11370 et seq. which requires a survey to be conducted or a fiscal impact report in regards to the regulations and procedures mentioned above.
The NCDR states: "Cost Impacts on Representative Private Persons or Businesses: The Department is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action." This statement is dubious, at best, and at worst, it is an outright falsehood. Obviously the CDC is too aware of the cost impacts a representative private person or business will incur in reasonable compliance with the proposed action. The CDC has chosen to turn a blind eye to the numerous private persons and businesses who will undoubtedly incur a slight cost impact if they are forced to comply with the proposed action.
If the CDC is not "aware" of any cost impacts, then a thorough detailed Economic and Fiscal Impact Report is a necessity because the CDC and the public need to be made "aware" before implementing these actions. To anybody who is even mildly familiar with the way in which the many thousands of inmate quarterly packages were filled with merchandise purchased from thousands of private businesses throughout California, owned by private persons, then they are aware these proposed regulations would have a direct cost impact on those same businesses and persons if they were barred from selling their merchandise as they have in the past.
CCR, Title 1, Division 1--Office of Administrative Law--Determination of Effect on Small Business; Article 2--Criteria Applied in the Review of Proposed Regulations; and § 4 -- Determination of Effect on Small Business: (a) The notice of proposed adoption or amendment of a regulation shall include a determination as to whether or not the adoption or amendment affects small business. For purposes of this §, an adoption or amendment affects small business if a small business within the meaning of Government Code, § 11342.610:
(1) Is legally required to comply with the regulation;
(b) If an agency determines
With the limited exceptions not applicable here, the APA provides that
every proposed adoption or change in the rules and regulations of, inter
alia, the CDC, must provide for public input to its enactment, by the Director,
California Department of Corrections ("CDC"). Withholding vital information,
practices, procedures, and DOM Article 42 from the public through this
less than forthright NCDR will create "under-ground-rules."
Various procedures, including public notice of and hearings on the proposed rule change, are mandated by the APA to this end. However, through the Government Code, §§ 11370 f; and Penal Code, 5058(1), states:
"Regulations adopted by the director or the director's designee
Absolutely no effort was made to comply with the APA and Government Code, § 11370 et seq. which requires a survey to be conducted or a fiscal impact report in regards to the regulations and procedures mentioned above.
The NCDR states: "Significant Statewide Adverse Economic Impact Business: The Department has initially determined the proposed regulations will not have a significant adverse economic impact directly affecting businesses, including the ability to California businesses to complete with businesses in other states." (Emphasis added.)
This statement is counterfactual. There will be a highly significant adverse economic impact directly affecting many California businesses due to their sales of merchandise being diverted to a small number of exclusive vendors used by the CDC. Furthermore, out of state businesses are not required to pay state taxes, and these businesses profit and, prosper more than California based businesses by virtue of their location outside the state. Moreover, it creates a hardship on California based businesses trying to compete for the lucrative business of vendor packages.
What yardstick or gauge is being used to quantify the term "significant" in this passage of the NCDR? Is the CDC qualified to make fiscal impact determinations when its own budget is deeply in the red every year? Maybe the CDC does not attribute a significant adverse impact on business unless it reaches into the billions. For the CDC to even remotely assert it has initially determined these regulations will not have a significant adverse economic impact is contrary to reasoning, . .
The CDC has, by virtue of its own false assertions in this NCDR, made it woefully clear that a fiscal impact statement is necessary to fully outline the incredible fiscal impacts which are sure to hurt businesses statewide if adopted. The CDC has apparently chosen to overlook the significant adverse economic impacts these regulations will have on California businesses when the CDC is already allowing out of state businesses to settle in first and dominate the monopoly marketplace.
The NCDR states- "Effect on Small Business: The Department has determined that the proposed regulations may not affect small businesses. It is determined that this action has no adverse economic impact on small business, because they are not affected by the internal management of state prisons."
How has the CDC determined the proposed regulations may not affect small business in California? Where is the economic impact study and who conducted this study? In fact, the implementation of these regulations would cause a "ripple effect" within the small business arena due to the loss of business to those businesses fortunate enough to be exclusively used by the CDC. The CDC hinges their assertions of there being no adverse economic impact on small business upon the flimsy excuse that small businesses are not affected by the internal management of state prisons. That is patently false, because it is blatantly obvious to anyone that if you take millions of dollar is business and you cut it off there is going to be tremendous adverse is economic impact experienced by the small businesses who previously prospered from the business.
The CDC must employ some highly creative writers to generate these types
19 of statements which are contrary to reality and tantamount to fraud
and 20 deception. For the CDC's knowledgeable staff to concoct such outlandish
21 replies to legitimate to questions about a proposed regulations effect
on 22 numerable small businesses statewide is highly suspicious. Asserting
there 23 proposed changes to the inmate quarterly package program won't
adversely 24 affect small businesses is like saying the Prison Industry
Authority (PIA) 25 would not be adversely affected if state and federal
agencies stopped 26 purchasing their furniture and supplies from the PIA.
It's obviously untrue. 2'] Internal management of prisons does impact thousands
of people's lives and 2$ businesses when the prison management adopts changes
in regulations which
The fiscal stability of the California economy is very unstable during these tough economic times where small businesses are struggling to survive. Creating a situation where these businesses would potentially lose revenue is not a sound fiscal decision by the State. Recently, the Governor has gone on record emphasizing the need to take whatever measures are needed to strengthen the overall California economy.
The NCDR states: "Assessments of Effects on Job and/or Business Creation Elimination, or Expansion: The Department has determined that the proposed regulations will have no affect on the creation of new or elimination of existing jobs or businesses within California, or affect the expansion of business currently doing business in California."
This statement is fallacious. Again, how can the CDC make such statements
without providing any proof whatsoever that there will be. no adverse affects
to California businesses? The term "assessments of effects" reasonably
indicates that an assessment of any positive or negative effects resulting
from a proposed regulation have been done. The CDC determined that the
proposed regulations would have no affect on the creation of new jobs or
elimination of existing jobs or businesses within California. Did the CDC
consider what happens when a 'business loses sales and their profits diminish?
Jobs are cut and any plans for expansion/growth are quashed.
The CDC has failed to mention it put forth the proposed 16% Personnel Reductions in the first place and all the reductions adversely affect programming inmates. These changes will adversely affect business expansions because it will not be spent in' local communities statewide. This statement can be further quantified given one major departmentally approved vendor being used by institutions to provide vendor inmate packages is Access Catalog Services located in Reno, Nevada and St. Louis, Missouri. (Exhibit D, attached and incorporated.)
Prior to the implementation of the NCDR inmates' families, mothers, fathers, husbands, wives, brothers, sisters, aunts, uncles, children, and friends were personally able to go to their local grocery stores, clothing stores, jewelry stores, etc., purchase the items for their incarcerated loved ones quarterly packages, a couple of items at a time, over a couple of month span of time, if not the whole quarter. Personalizing the quarterly package to the personal tastes of their incarcerated loved ones. After they had purchased a11 the items for the package, the family would personally pack all those items into the appropriate sized box, specified on the package form, tape the package form to the outside of the box and then mail the quarterly package to the appropriate institution, where the box would be opened, screened and searched for unauthorized and/or illegal items- by correctional officials prior to the items being issued to the inmate.
Now under this NCDR the quarterly packages the inmates` families, mothers, father, etc., would be forced to pay the full amount for the package all at one time to a "State Approved" mail order vendor creating an undue financial burden on the inmates family members and friends. The average money spent on a single thirty (30) pound quarterly package, containing coffee, cigarettes, cookies, crackers, candy, and clothing items is $400.00 and could go as high as $700.00 if the quarterly package contains sunglasses, religious medallion with chain, and a watch.
There are an estimated one hundred and sixty thousand (160,000+) plus inmates in the CDC. This policy creates an illegal state sponsored monopoly of the resources of not only the 160,000 plus captive and unwilling customers in the CDC, but also the 1.5 million captive and unwilling tax paying, law abiding California State citizens who are being forced to spend their hard earned money at "State Approved" mail order vendors. Approval/Adoption of this NCDR will directly impact the small businesses of California in an estimated sum of sixty million (60,000,000) dollars in lost sales revenue per quarter. An estimated two hundred and forty million (240,000,000) dollars annually.
Under the proposed NCDR the CDC would receive a ten-percent (10%) surcharge on the over-all price of the order as "administrative fee", further subjecting the families of California state prison inmates to the degradation of being unfairly and illegally singled out to pay more than their fare share towards the California State budget crisis, simply because they are family members of California State prison inmates. The implementation of the policy in question creates a form of "State approved /sponsored" price gouging/fixing. Families will no longer be able to compare prices, seek out sales, and/or use coupons to purchase the items for their incarcerated loved ones quarterly packages.
The NCDR states: "Consideration of Alternatives: The Department must determine that no reasonable alternative considered by the Department, or that has otherwise been identified and brought to the attention of the Department, would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed regulatory action."
This is entire proposed regulation change does not indicate what alternatives were explored or even considered by the CDC before proposing such a radical departure from the current regulations.
C. NCDR Initial Statement of Reasoning (ISOR :
The first paragraph (NCDR--Page 1 of the ISOR) contains an error with
a word when it
The 1SOR should clearly specify this regulation change is to comply with budget cut by eliminating CDC personnel positions; some of which are currently assigned to directly deal with inmate packages. However, the language is ambiguous and misleading at best. The CDC also, once again, fails to acknowledge the CDC put forth the various personnel cuts.
In the second paragraph, (NCDR--Page 1 of the ISOR) the language is problematic as it starts to encroach on other areas regarding inmate personal property, which has no association with implementing a mandatory statewide vendor package program. The language contained throughout the ISOR makes it abundantly clear the intent is to completely eliminate/restrict personal property overall. These changes will have a detrimental affect on the inmate population and will be a radical departure from current procedures and practices which have been in place for years throughout the CDC.
It is preposterous to say these regulation changes are being promulgated to aid in the security of the public. How is the public safety being compromised in any way if this proposed regulation change was not adopted? Again, it is irresponsible for the CDC to make such counterfactual statements as this purposely misleads the general public by way of the language in this entire NCDR on the real reasons for attempting to adopt these regulation changes.
In the third paragraph, (NCDR - Page 1 of the ISOR) it states the CDC weighed institutional concerns against the concern of inmates in order to determine reasonable personal property standards. In point of fact, these proposed regulations are being sought for the sole interest of the CDC to implement standardization and the dramatic reduction of inmate personal property statewide. For the CDC to make statements they are taking the concerns of the inmate population into consideration during this process is farcical. This petitioner is well aware of the considerable amount of time the CDC is spending "behind the scenes" developing draft proposals on how to reduce inmate personal property. (Exhibit B, attached.)
Numerous inquiries submitted to the CDC regarding these proposals on inmate personal property have yielded vague and misleading answers. Basically, the CDC has no desire to discuss these changes with anyone until the changes are adopted. This is quite understandable, because the CDC is also working hard to implement DOM changes to Article 42 which will drastically impact inmates' personal property statewide.
It is interesting that the CDC has made absolutely no mention of the corresponding DOM changes which will be implemented and bestowed upon the inmate population once these proposed regulation changes are adopted. Why has the CDC failed to include its intents to take away most all inmate personal property, and go so far as to limit an inmate to 2 bars of soap in their possession, within the ISOR?
The CDC also contends it will ensure fair and competitive pricing from departmentally approved vendors. This statement is deceiving to a11 inmates and their correspondents who are familiar with the CDC's history when it comes to securing obtaining fair prices. For example, the most popular television purchased by inmates costs between $175.00 dollars to as high as $225.00 dollars. This same model is offered in most big electronic outlets for $55.00 dollars to as high as $75.00 dollars. This is known to be factual based on vendor companies dropping prices on products no longer allowed in California to meet civilian prices.
The CDC has allowed vendors to create monopolies for ages and allowing the same "departmentally approved vendors" to mercilessly overcharge inmates for appliances and other personal property items. The CDC has not supervised any type of monitoring when it comes to these vendors and the same holds true for the inmate collect call telephones!
"These provisions expand the special purchase procedure.
The NCDR states: and allow inmates vendors." This statement is incorrect as these provisions achieve the exact opposite of what is being cited in the above statement. Special purchase (as it is known today) will be dramatically reduced by requiring many personal property items originally obtained through the special purchase program must now be obtained via these departmentally approved personal property package vendors and delivered within the inmate's 30 pound maximum personal property package.
It should be noted most CDC approved vendors currently being used by institutions as part of the vendor package program do not have near the selection of items, if offered at all, originally purchased by inmates to utilizing the special purchase program and its vendors. Most of these vendors being used for the vendor package program are geared towards providing mainly generic off-brand foods and personal care products (consumables).
For example, an inmate wishing to purchase music cassette tapes or compact discs typically would utilize a institutionally approved special purchase vendor which exclusively offered such desired items. These special purchase vendors typically have an extensive selection of those desired items at fairly reasonable prices. Requiring an inmate to obtain these products from a departmentally approved vendor via their inmate personal' property packages will not afford the inmate a fair and equitable selection because the vendors selling personal property packages do not deal in music.
Furthermore, requiring inmates to now obtain products (such as clothing, shoes, etc.) normally obtained via the current special purchase program in their personal property package will create undo hardship for those who are relying on quarterly packages which mainly consist of food and personal care items to carry them through at least 90-day period. It forces the inmate to make a Hobson's Choice.
This demonstrates how this entire proposed regulation change is more destructive, especially to those inmates which fall under Privilege Group A and B which predominantly are required to have good work and behavior history which should be rewarded with less restrictions as the incentive to continue their privilege status. The CDC is proposing to strip away some of the very last behavioral incentives it has. It makes no sense to implement drastic cuts which will severely impact the two main groups of non-problematic privileged inmates unless the CDC has some ulterior motive for creating tremendous dissension, animosity, and anxiety amongst the inmate population, as a whole.
The NCDR states: "The Department will ensure that the vendor process will be fair and equitable to all inmates and their correspondents by requiring the vendors charge no more than' ten _percent above the standard retail price of an item as determined in major markets." This statement is problematic, the CDC does not indicate what they are considering a "major market". Retail prices for products greatly vary depending upon what retail markets are used as a reference.
For example, some institutions recently conducted their own price comparison on commonly purchased food and personal care items by inmates by comparing the proposed vendor prices against the institutions' canteen prices and those of "Von's Supermarkets." This particular price comparison did not exhibit a fair price comparison, as this common retailer is considered to be on the "high end" of the price median for grocers. Typically, most inmates' correspondents utilize retailers who offer the lowest possible prices when purchasing items for the inmates' quarterly packages.
The CDC asserts it will ensure departmentally approved vendors will provide reasonable prices and superior merchandise, but the CDC is very unlikely to conduct any legitimate price comparisons, nor is it likely the CDC will force vendors to maintain fair pricing because the CDC has shown it has no concern for the inmate population and their correspondents being price gouged.
The NCDR states: "The Department is also encouraging. competitive prices
Vendors have been allowed to reap huge profits for their inferior products purchased by inmates and their correspondents as no relief has been provided by the CDC to rectify this situation. The CDC has done nothing to create a "very competitive market" which in turn forces these vendors to provide superior merchandise at lower prices. In fact, the exact opposite has occurred and no relief has been offered by the CDC despite inmates and their correspondents complaints for many years. Clearly, this NCDR will severely impact the 160,000+ plus inmates of the California State Prison system, their 1.5 million family members and friends, the small businesses of the State of California, and the California State economy will suffer the risk of irreparable harm with the adoption of these new CCR, Title 15 regulations.
D. The NCDR Fails to Disclose the Existence of DOM Article 42 and Its
Negative Impact on the Inmate Population as a Whole, in Addition to the
Likelihood of Creating Underground Rules:
DOM, g 54030.16,1-Personal Clothing for Male Inmates: the following items listed are eliminated from our personal property via the proposed DOM Article: Ace Bandages, allowed 2; Athletic Supporter, allowed 3; Belt, allowed 1; Belt Buckle, allowed 1; Gloves/Sport, allowed 1 pair; Jacket, allowed 1; Jeans, allowed 3; Robe, allowed l; Socks, allowed 10 pair; Sweat Pants, allowed 2; Sweat Shirts, allowed 2; Undershirts (T-shirts), allowed 10; Wash Cloths, allowed 4; Wave Caps, allowed 1.
The following personal clothing item amounts have been reduced via the APPS: Tennis shoes, allowed 2 pair; APPS reduced this number to 1; Sandals/Slippers/Shower Shoes, allowed 1 pair of shower shoes and 1 pair of slippers; APPS totally omits sandals and combined shower shoes with slippers.
The draft DOM Article 42 and APPS significantly eliminates many personal items or clothing and greatly reduces the number of clothing items which are approved. It should be noted, if these changes were implemented, many items of personal clothing and supplies would be deemed "contraband" or "disallowed property" after a six-month attrition period beginning the date the new rules were signed into effect.
Inmates tend to wear personal clothing items versus state issued clothing, when permitted, due to the better quality of and overall comfort. Inmates also tend to purchase and wear tennis shoes which are far more durable and comfortable than the state issued shoes which have no arch support or padding.
Personal clothing items are typically more durable and tend to wear out less often than stare issued clothing.' The recent issuance of the new state issued shirts and pants which are made of a cheaper quality fabric wear out faster and would tend to support the argument allowing inmates to possess personal clothing items.
The CDC claims there was a cost savings involved with the switch to this new clothing. This claim is not supported when the clothing wears out faster, as do the PIA tennis shoes, which results in the inmate having to obtain replacement state issued clothing through the laundry exchange on a more frequent basis. Obviously the CDC is going to increase their costs for clothing inmates if these new rules are implemented.
DOM § 54030.16.3-Personal Care/Hygiene for all Inmates: the proposed APPS the following personal hygiene items have been eliminated for inmate personal property via the proposed DOM Article: Baby Powder, allowed 1; allowed 2; Foot Ointment, allowed 2; Foot Powder, allowed 1; Nail and/or Toe Nail Clippers, allowed 1 each, APPS allows nail clippers but eliminates toe nail clippers; Pain Medication, allowed 2; Hair Rollers, allowed l; Shaving Brush, allowed 1; Baby Oil/Sunscreens /Vaseline /Chapstick, allowed 4, in addition to 3 Chapsticks; Tweezers, allowed 1,
The proposed DOM APPS, the following items amounts have been reduced: Cotton swabs, allowed 250 count, APPS reduced amount to 40; Deodorants, allowed 4, APPS reduces amount to 2; Hair Conditioner, allowed 3, APPS reduces amount to 2; Body Lotion, allowed 4, APPS reduces amount to 2; Mouthwash, allowed 3, APPS reduces amount to 2; Disposable Razors, allowed 30, APPS reduces amount to 10; Shampoo, allowed 3, APPS reduces amount to 2; Shaving Cream, allowed 5, APPS reduces amount to 2; Soap Bar, allowed 12, APPS reduces amount to 2; Toothpaste, allowed 4, APPS reduces amount to 2.
With the proposed APPS restrictions, several items are severely impacted without any rational basis for doing so. Many personal hygiene items used everyday by civilized human beings are deleted entirely. Many other items are significantly reduced in allowable numbers to make it all but necessary go to the canteen each month, for those inmates fortunate enough to do so, or risk being without the items in question. The APPS does not factor in a multitude of inmates who previously relied on their quarterly packages for their supplies of personal hygiene items.
The APPS also makes no allowances for unforeseen lock downs and program
disruptions which would prevent an inmate from acquiring their allotment
of the personal hygiene items needed. With the state budget crises in effect,
the inmate population has already noticed that state issued hygiene products
are being severely reduced. Taken as a whole, the APPS changes accompanied
with the reduction of state issued hygienic supplies will have a impact
on compliance with the inmate grooming standards mandated by California
Code of Regulations (CCR), Title 15, § 3062 et seq.
The language further fails to address the issue with these items which are being sold from the prison canteens which do not meet the restrictive criteria outlined. It should also be noted, most personal hygiene items that are transparent are generally generic, low quality and disliked by the inmate population in every instance.
The deletion of many personal hygiene items allowed is unreasonable and unwarranted, and the appearance of these proposed restrictions is more punitive in nature than geared towards any legitimate penalogical interests. DOM, 5 54030.16.5-Food: The proposed APPS, the following food items have been eliminated for inmate personal property via the proposed DOM Article: A7.1 food items which come in a can or metal containers; Dry cereal which comes in large containers (bulk); All powder forms of protein, vitamins, and mineral supplements; Sodas; Seasonings; Pastries; Artificial Sweeteners. There are a myriad of problems with these food selections being deleted for inmate purchase and consumption. It is common knowledge, most food manufacturers are typically not packaging their food products with the prison population in mind. This equates to many food items being unavailable given the proposed elimination of canned items or metal containers. The retail consumers dictate what the' retail market provides as far as food packaging, and consumers have yet to embrace food products packaged in pouches and clear containers, as a whole.
Generally speaking, most pouched food items are more expensive for an amount of food less than canned items, and the inmate population cannot afford the increased prices. The elimination of canned items will undoubtedly preclude many inmates from obtaining food products they desire due to their cultural /dietary reasoning. Additionally, it further negatively impacts those inmates who rely on certain canned foods to meet with their dietary and medical needs, which the CDC may not provide for in their daily diet.
The elimination of all bulk protein powders, minerals and vitamin supplements will severely impact the large number of inmates who frequently purchase these items in an effort to promote better health and well-being. Tablet or pill form of these products cost more, and in some instances, it would be impossible to purchase enough product in the pill form, at a reasonable cost, to equal that which can be obtained in the bulk form.
The rationale of. eliminating other food products such as, sodas, pastries, artificial sweeteners, and seasonings is very difficult to comprehend. Most of these products are already available in the canteens, and they are very popular with the inmate population. Again, the elimination of these products could serve no legitimate penalogical interest.
DOM § 54030.16.6-Miscellaneous: The proposed APPS, the following miscellaneous items have been eliminated for inmate personal property via the proposed DOM Article: Handball, allowed 1 can; Drink Bottle, allowed 1; Can Opener; allowed 1; Chewing Tobacco, allowed 50 cans or pouches; Cigarette Case, allowed 1; Cigarette Papers, allowed; Cigarette Roller, allowed l; Cigarettes, allowed 5 cartons; Cigarette or Pipe Tobacco, allowed 5 cans or 12 pouches; Cigars, allowed 100; Ear Plugs, allowed 1 set; Eyeglass Case, allowed 2; Footlockers, allowed l; Laundry Soap, allowed up to 48 ounces; Pipe, allowed 2; Pipe Cleaners /Filters, allowed 2; Sewing Kits, allowed 2; Shoe Polish, allowed 2; Spoon, allowed 1; Tape/CD Holder, allowed 1; Tobacco Holders (pouch), allowed 2; Hot Pot, allowed 1.
The following miscellaneous item amounts have been reduced via the APPS: Audio Cassettes/CD's, allowed 12, APPS reduces to 7.0; Ball Point Pens, allowed 10, APPS reduces to 4; Batteries, allowed 12, APPS reduces to 8; Envelopes, allowed 100;,APPS reduces to 40; Legal Pads/Tablets/Notebooks, allowed 5, APPS reduces to 4; Stamps, allowed 100, APPS reduces to 40.
This section is very troublesome, as it eliminates a large portion of personal property inmates utilize on a daily basis. Furthermore, most of the items proposed for elimination are not offered via the canteen for those fortunate enough to access the canteen.
All tobacco and products associated with tobacco are totally eliminated which gives the appearance a decision is being made to ban all tobacco products statewide at the same time this Article and APPS is implemented.
Under this section, the APPS eliminates hot pots. Hot pots are widely
used by the inmate population to heat food' items purchased via the canteen
or received via their quarterly packages. Although the APPS does facilitate
allowing the inmate to possess a immersable heater, this product was not
designed to immerse within the food items, and would pose more of a safety
hazard by inmates trying to use the product for something it was not designed
for in the first place.
Instead of totally eliminating the hot pots because' of these concerns, disciplinary procedures are already established via CCR, Title 15, which specifically addresses dangerous contraband and punitive measures for those inmates who wish to participate in such activities. Elimination of this item would be viewed by the inmate population as nothing more than a extreme punitive action against everyone, rather than just addressing the few via the disciplinary process.
I'. Law Re NCDR and DOM Changes:
The CDC's failure to adhere to the Administrative Procedures Act and other existing laws creates an illegal "underground" regulation/ rule. Government Code § 11347.5(a) is also clear and binding authority on any state agency in California. "No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule which is a regulation as defined in subdivision (b) of § 11342 unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter."
These requirements include written and published notice of the proposed action and public hearing on the adoption of the proposed regulation, receipt, and consideration of comments of interested persons, and filing of the adopted regulation with the Secretary of State as well as with the rules committee's of each house of the Legislature. (Government Code §§ 11370. et seq.)
The CDC's failure/refusal to disclose DOM Article 42 changes and enactment, anywhere in the NCDR makes the "public-notice" in this matter quite dubious and. in contravention of the rights of the citizens of the State of California.
"Where the Legislature has delegated to an administrative agency the
responsibility to implement a statutory scheme through rules and regulations,
the courts will interfere only where the agency has clearly overstepped
its statutory authority or violated a constitutional mandate." Ford
Dealers Assn. v. Department of Motor Vehicles (1982) 32 Ca1.3d
347, 355-356 [185 Ca1.Rptr. 453), fn. omitted_; Stoneham v. Rushen
(1984) 156 Cal:App.3d 302, 308 [203, Ca1.Rptr. 20). The only question here,
therefore, is whether "the challenged provisions are consistent and not
in conflict with the enabling statute and reasonably necessary to effectuate
its purpose," Fox v. San Francisco Residential Rent Bd. (1985)
169 Cal.App.3d 651, 655 [215 Ca1.Rptr. 565}
The term "regulation" is defined in the Government Code to mean "every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern the procedure, except one that relates only to the internal management of the state agency," Government Code, 11342, subd. (g) (emphasis added); Caldo Oil Company v. State Water Resources Control Board (1996) 44 Cal.App.4th 1821, 1827. There is no dispute here that the subject amendments meet this definition of a "regulation".
In the NCDR and DOM changes addressed in this case, the Director has refused to exercise sound discretion and has not been forthright in seeking The changes, which shows that "the agency has clearly overstepped its statutory authority and violated a constitutional mandate." Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 355-356.
G. Law Re Inmate Personal Property Clothing:
According to In re Rodney Acala (1990) 222 Cal.App.3d
345 (on Habeas Corpus): Prisoners have a due process liberty interest in
wearing clothing of their choice. The right to choose clothing and overall
appearance is an aspect of liberty under due process clause and is entitled
to protection against arbitrary state action prisoner's right to wear clothing
of his choice was within rights protected by statute permitting prisoners
to be deprived of rights only if necessary for reasonable security of prison
and reasonable protection of the public. Accordingly, as Acala makes
clear, prisoners possess specific colorable rights to own/possess clothing
H. Existing -Law Re Family Quarterly Packages:
CCR, Title 15, § 3044(c) "Inmate Work and Training Incentive Groups,"
states in pertinent part:
CCR, Title 15, § 3044 (e)(3)(G) "Privilege Group B," states: "The receipt of four special packages, 30 pounds maximum weight each, per year, exclusive of special canteen purchases." CCR, Title 15, § 3138 (d)(1) "General Mail Regulations/Packages," states:
"Facilities will establish and make available to a11 inmates procedures for the receipt of packages from their correspondents in accordance with limits set for their assigned inmate work/training incentive group. Such procedures may require an inmate to obtain prior approval to receive a package. Facilities may refuse to accept packages addressed to an inmate if prior approval has not been obtained, or if a package is received at a facility, the facility may dispose of the package as provided for in § 3147(a)(6) without the need to hold the package pending appeal as provided in § 3147(a)(5)(B)."
CCR, Title 15, § 3138,(d)(1) is clear and binding authority as applied to the CDC. "Facilities will establish and make available to a11 inmates procedures for the recepit of packages from their correspondents in accordance with the limits set for their assigned work/training incentive group." This regulation is clear and binding authority. Any change in this regulation must be promulgated pursuant to the Administrative Procedures Act, Government Code § 11370 which means necessary changes to this section which is not addressed in the NGDR.
DOM § 53130.7.2 "Privileges for Group A," states in pertinent part:
"The receipt of four special packages, 30 pounds maximum weight each;- per year, exclusive of special canteen purchases." DOM § 53130.6 "Personal Property Packages," states:
"Items of personal property may be received from correspondents of the inmate. Items of authorized personal clothing or food may be acquired by utilization of this package procedure. The determining factor in the amount of packages an inmate may receive per year is the privilege group in which the inmate is placed in accordance with the work/training program."
"Group A": Inmates in privilege group A shall be allowed four packages per year (one per quarter) not to exceed 30 pounds each. The packages shall consist of clothing and/or food stuffs.
"Group B": Inmates in privilege group B shall be allowed four packages per year (one per quarter) not to exceed 30 pounds each. The packages shall consist of clothing and/or food stuffs.
DOM, § 54030.6 "Acquisition of Personal Property," states in pertinent part: . . ." Inmates may receive personal property from approved correspondents in requested packages as described in DOM, § 54030.6."
I. Discussion of Memorandum from the Director of the CDC:
A memorandum authored by the Director of CDC, Cal. Terhune, dated February 9, 1998, indicates the CDC knew six (6) years ago that they needed to make changes to the CCR, Title 15 regulations via NCDR in order to implement a mandatory vendor quarterly package program. The memorandum states:
"The Department is proposing new regulations regarding the purchase of quarterly packages for inmates. As you are aware, family and friends of inmates have been able to purchase items and other sundries such as toiletries or small items of clothing which can be sent to them on a quarterly basis. To minimize the introduction of contraband into the prison setting, CDG will require that all quarterly packages be purchased from a state-approved vendor that will ship directly to the prisons. Quarterly packages will be limited to food items only." (Exhibit E, attached and incorporated.)
S. Discussion of Senate Bill (SB) 206:
Senate Bill No. 206 was introduced by Senator Brulte on February 13, 2003, to establish a pilot program at Pelican Bay State Prison to replace the inmate quarterly package program with an expanded canteen program. On March 25, 2003, SB-206 failed passage in the Senate Public Safety Committee (2-2); however, reconsideration was granted.
Since the Senate refused to pass SB-206, the CDC decided to take their next best route and make and "end run" around the California State Legislature by publishing a less than forthright NCDR that fails to once mention changes being made the DOM Article 42. A polite way of making an underground rule.
B. The NCDR and DOM Article 42 Fail to Address/ Acknowledge e Law Re Storage of Inmate Legal Property:
Commonly there are no readily available and accessible storage areas
for prisoners' legal property. The following synopsis is submitted for
your consideration upon the subject-matter.
"One question which an inmate must decide in determining if he should represent himself is whether in view of his own competency and general prison regulations he can do.so adequately. He must make this decision in light of the circumstances eaistinp," (Emphasis added); and this was cited with approval in the most restrictive of the decision in Lewi.s v. Casey (1996) 518 U,S. 343. Based upon the foregoing premise, prisoners could take and assume a good faith belief that they would be allowed to keep their active legal case files in their possession, in their cells. Forcing the removal of said active legal case files from these prisoners at this exceptionally late stage of the game would interfere and impair said prisoners' access to the courts, and their ability to litigate effectively (see- e.g., Lewis v. Casey, supra, 518 U.S. 343). Although, Title 15, § 3161 connotes that "law books and papers" will remain within the six cubic feet limitations of Title 15, § 3190(b), through custom, trait and habit of the institution(s) have been exempt for said limitations.
After review of new CCR, Title 15, regulations being proposed, Respondent
asserts the majority of said regulations are invalid under Government
Code, §§ 11340 et. seq. [Administrative Regulations and
Rulemaking], for alia, it violates, conflicts with or supersedes other
After review of the new NCDR (CCR, 'T7.tle 15) and DON Article 42 regulations being proposed, Petitioner asserts the majority of said regulations are invalid under Government Code §§ 11340 et. seq. [Administrative Regulations and Rulemaking], for inter alia, it violates Government Code, § 7.1370 et. seq., Penal Code 5058, 6055 et. seq. regarding obtaining a economic and fiscal impact survey/report/study before attempting to make a serious changes in regulations that impact every citizen in California, in addition to conflicting with or superseding other section of CCR, Title 75, regulations. Enactment of this NCDR without a financial economic impact report is unlawful/illegal per Penal Code 5058(d)(1).
The Governor has went on record and issued an Executive Order 5-2-03
which specifically pertains to these types of agency regulation changes,
being enacted without fully assessing the potential for economic impacts
on California businesses, enterprise and individuals. Obviously the CDC
has ignored and disregarded the Executive Order making it apparent CDC
feels they are exempt, but more importantly, it has asserted a multitude
of falsehoods and deceptive responses to the questions which are part of
the Administrative Procedures Act and is against the law.
The CDC has failed to inform the public of the many other financial problems which face prisoners statewide which will only be exacerbated by the implementation of these regulations. Most prisoners and their support networks of family and friends are already being subjected to paying the ,33% (soon to be 55%) fine/restitutions deduction on any and all deposits knade to the inmate's trust account. Inmates have woefully few wage-earning opportunities within the prison system. The so-called "approved vendors" already in use by the CDC for years have engaged in extreme price gouging and reaped huge profits from the virtual monopolies they have been given by the CDC, and the CDC officials have done nothing to ameliorate these problems due to callousness and/or complacency.
Inmates' families and friends, most of which are already struggling financially, can not afford further financial burden and exploitation by the vendors who will most certainly charge outrageously high prices for the items they sell in the quarterly packages. Furthermore, inmates' families and friends can not afford to outlay a lump-sum payment such as what would be necessary to buy a vendor quarterly package. Instead, they have always been allowed to buy the items they would send a little at a time, as their finances permitted, and often bought items on-sale or in bulk to fill the quarterly packages.
Petitioner contends that implementing these new regulations will significantly decrease the number of inmates who will be fortunate enough to receive a quarterly package because their support networks will not be able to afford them. The CDC has not only failed to consider the financial consequences involved with these regulation changes, but it has also overlooked the humanitarian issues which come into play prior to proposing or implementing these regulations.
Moreover, it is abundantly clear CDC does not recognize inmates and their families in regards to humanitarian needs due to the obvious desires and actions by CDC reducing the status of an inmate and those associated with inmates (i.e., families, friends, loved-ones, etc.) to something less than a human being in today's society.
CDC, has failed to acknowledge or mention the cost factor which will be incurred by inmates and their support network an having to send items of personal property home due in part to the implementation of this regulation change. Inmates who possess such items and' do not have the financial means allowing them to send those personal property items home will ultimately be forced to donate/dispose of those items at the hands of CDC's unwarranted and punitive implementation of these drastic regulation changes. Sentimental and monetary value of such items are totally disregarded, as many of the personal property items which were authorized by CDC, and were previously purchased for the inmate by their support network, is blatantly and totally ignored by CDC with the implementation of these new regulations.
One could only speculate if CDC was mandated by the Legislature to have to pay all costs for an inmate to ship their personal property items home since they were in fact once authorized by the CDC; this regulation change would not even be considered since it would create an obvious significant negative fiscal impact on the CDC and the State of California!
Once again the CDC has chosen to heap the financial burden on the backs of prisoners and their suppport networks. Will it be any surprise if many inmates who are having their personal property taken as a result of these regulation changes decide to take their concerns to the courts for some redress?
Will it be any surprise if some inmates instead resort to acts of violence and disobedience as a result of having their most precious programming incentives stripped away? Petitioner contends the CDC has failed miserably to grasp the totality of adverse affects which will be thrust upon prisoners and their support networks if these proposed regulation changes to the Title 15 and the DOM are adopted and implemented throughout the CDCs
Another aspect of these regulation changes and this particular NCDR which is very troubling is how the CDC has completely omitted the fact that it has been working very hard to implement sweeping changes to the DOM which will obliterate inmate property allowances statewide. This in itself leads Petitioner to surmise the CDC is probably withholding many other relevant facts which the public and Petitioner should be informed about prior to the CCR changes being adopted and/or approved.
The DOM regulation changes hinge upon the CCR Title 15 changes to 3190 in order for them to be implemented without hassles, but the CDC has not allowed for any public commentary or review of the DOM changes being proposed. Take for instance, the new DOM regulations will severely limit an inmate's ability to effectively represent themselves in the courts because the inmate will be further restricted on the amount of legal books and materials they may possess as a result of the DOM changes.
This certainly serves the interests of the CDC by ensuring inmates will
not have an opportunity to appeal their court decisions which will keep
them in prison even if they are completely and totally innocent. The CDC
has chosen to tread on sacred ground when it attempts to implement regulations
that infringe upon a person's unfettered access to the courts. Petitioner
asserts the CDC is doing so for ulterior motives which should be investigated
thoroughly by the Legislature.
Consider the outcomes that may very well result from these highly restrictive regulations being imposed on prisoners statewide who already have very few "privileges" to entice their good behavior. If the CDC implements these restrictions and prisoners decide to strike and create havoc and bloodshed in the prisons when they have nothing left to lose., who will ultimately benefit from this? The answer is clear, the GDC will benefit from the outpouring of public support once the public sees the terrible atrocities prisoners are known for committing when they are oppressed and backed into a corner to the point they can take it no more.
The public will not be told.these types of punitive regulations which serve no legitimate penological interest are probably the spark that ignited the prisoners into revolting. No, instead, the public will be told, the CDC needs more money for more officers to control these animals within the prisons. Clearly, this is an obvious attempt by CDC to incite this type of behavior from inmates to support their own selfish interests. The CDC has shown it has no compunctions when it comes to lying and deliberately misstating the facts, as evidenced by the statements contained within the NCDR, and Petitioner is convinced there are a lot of ulterior motives at work here which need to be brought to light.
The CDC is currently in the public eye for numerous scandals and corruption cases which reach all the way to the CDC Director's office. Lives and careers are being lost already, and now the CDC wants to come forth with a barrage of regulation changes that are destined to be misused and abused by prison authorities. Not to mention, there is every reason to suspect these vendors being approved by various CDC officials have paid some tidy sums for those approvals.
Maybe the CDC is deliberately misstating the facts and omitting others so that nobody will focus on the consequences of adopting the many regulation changes the CDC has put forth in recent months. Petitioner contends the obvious fiscal impacts to California businesses should be focused upon, but there are many other aspects of these regulation changes which deserve much attention and scrutiny prior to their being adopted and -implemented. The public is effected by the internal management of prisons when the management decides to propose sweeping regulation changes that are destined to cost the state and taxpayers millions of dollars.
This concludes my written comments regarding the proposed regulation changes to the CCR, Title 15, and DOM.
Date: February 20, 2004
[50 pages of exhibits accompanied this document which was submitted
to Rick Grentz, Senator Gloria Romero, one editor of the Los Angeles Times
and others via regular mail.]
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