But one of the proposed changes in the regulation includes language that suggests correctional officers could have more discretion to perform a strip search. That change would lower the threshold for an officer to request a search from “probable cause” to “reasonable suspicion.”
Advocates are worried it could lead to unnecessarily invasive interactions between prisoners’ loved ones and correctional officers.
“People who run the visits already have a lot of discretion,” said Sharon Dolovich, a law professor who directs the UCLA Prison Law and Policy Program. “All this does is expand the scope of discretion to make it easier to justify … I suspect they are already strip-searching anyone they want.”
Attorney Eric Sapp of Legal Services for Prisoners with Children, an Oakland-based organization, met with families last week ahead of a scheduled public comment hearing on the regulation. He called the proposed change unlawful, inconsistent with other regulations, and said it was “concerning” that the department doesn’t explicitly say whether touching is allowed during unclothed searches.
“We do think it’s unreasonable that they want to change and harmonize those regulations by lowering ‘probable cause’ to ‘reasonable suspicion’ rather than doing the exact opposite,” he said, suggesting that the standard should remain at probable cause.
Cruz, the department’s spokesperson, said the proposed regulation is not intended to change the threshold for searches. She said the standards for strip and cavity searches would remain “unchanged” and would continue to be used only after less invasive means.
“Unclothed searches are completely voluntary unless a search warrant is presented. Unclothed searches are used very sparingly, and only when all other contraband interdiction efforts have been exhausted,” said Cruz. “Contraband interdiction efforts to be used before an unclothed search is proposed includes walk-through metal detectors and hand-held metal detectors.”
Declining a search has a consequence for prison visitors. It means they would not get to meet their incarcerated loved ones, which in some cases could waste an hours-long drive to an institution.
Why is the prison search policy coming up now?
California’s corrections agency put forward the proposed policy six months after an Office of Inspector General audit called attention to the flow of contraband into prisons, including during the pandemic when visitor restrictions were in place.
The report found the Department of Corrections had weak contraband prevention efforts in place and ultimately “allowed” the problem to continue. The inspector general urged the department to strengthen oversight of who and what comes into prisons to keep out drugs, including by searching staff more frequently and making more use of narcotic-detecting canines.
California state prisons recorded 1,274 overdoses between March 2019 and February 2020. In the following 12 months — after pandemic restrictions took effect — overdoses declined to 796, according to California Correctional Health Care Services.
Although the number of overdoses went down, the cases revealed that drugs found their way into prisons even when families couldn’t visit. Some avenues included staff, contractors, official visitors and mail.
Between 2021 and 2022, 64 visitors were arrested across all state prisons for attempting to bring in contraband. In the same year, six prison employees and 46 non-visitors were also arrested, according to the department’s Office of Research. The number of visitors arrested are down from 286 in 2018 and 186 in 2019.
Drug delivery methods have gotten more outlandish. Recently two men were charged for using drones to drop drugs, vape pens, MP3 players and phones into prison yards across seven prison facilities, according to the Los Angeles Times.
Asked to comment on the proposed search changes, Shaun Spillane, a spokesperson for the Inspector General’s office, said there is value in the decision to update policies.
“Although drugs still made it into prisons while visitation was suspended during the COVID-19 pandemic, it is important that the department have an effective search process for people who visit prisons,” Spillane said.
California prison visits as a civil right
The request to update search policies comes in the midst of the Newsom administration’s campaign to make prisons friendlier to families. He signed a law last month that allows prisoners to be housed in facilities closer to where their children under 18 live.
The Newsom administration in 2021 added a third day of weekly visitation at all institutions to make family visits more accessible.
Research shows that maintaining close family ties while incarcerated contributes to positive parole outcomes and lowers the likelihood of recidivism.
But families say that with intimidating visitor policies in place, they will feel less inclined to visit. Others say they would refuse a search in protest, even if it means losing their visit.
“Close connections to loved ones on the outside is the single biggest predictor of success for re-entry, so why wouldn’t the CDCR try to enhance the experience and enhance the ability for people to visit rather than increasingly burden it?” Dolovich, the professor from UCLA, said.
Angel Rice, the wife of a prisoner and advocate at Empowering Women Impacted by Incarceration, said that after COVID-19, the department started giving families more freedom during the holidays.
Now, children and mothers are allowed to make Christmas ornaments and picture frames and decorate gingerbread houses.
“That is a small part of them doing something in a positive manner to make us feel like it’s family,” Rice said. “This is the Department of Rehabilitation. And these little events matter. They make a difference as far as preparing them to come home.”
The Legislature also has advanced a few bills this year to make family ties with prisoners more accessible.
One, sponsored by Assemblymember Miguel Santiago of Los Angeles, would make visitation a civil right for prisoners and restrict the Department of Corrections’ power to deny a person from visiting. Newsom vetoed a version of this bill (PDF) in 2021, on the basis that he thought the legislation could lead to costly litigation from individuals denied visitation for what may be valid security concerns.
On Wednesday, the department is scheduled to hold a public comment hearing about the new search regulations. Advocates have already proposed alternatives to the visitor policy, including raising the standard for an officer to request a strip search, or using non-intrusive technologies instead.
“These proposed changes in particular are unnecessary and dangerous, creating grave potential for abuse and causing undue burdens on visitors,” Sapp wrote in a letter to the department days before the public comment period ends. “We urge that significant changes be made before any regulations in this area are adopted.”
If approved, the department will put in a request for good cause, which would enact the policy immediately.
