BILL ANALYSIS
AB 384
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Date of Hearing: January 13, 2004
Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 384 (Leslie) - As Amended: March 24, 2003
FOR VOTE ONLY
SUMMARY : Eliminates tobacco products from the list of items that
may be sold at Department of Corrections (CDC) and California
Youth Authority (CYA) facilities. Specifically, this bill :
1)Removes the provision that allows the CDC Director to sell or
supply tobacco and tobacco products, including cigarettes and
cigarette papers, to any person confined in any institution or
facility under his or her jurisdiction who has attained the
age of 16 years, if the parent or guardian of the person
consents thereto; may permit smoking by the person in any
institution or facility; and provides that no officer or
employee of CDC shall be considered to have violated this
section by any act authorized by that subdivision.
2)Removes tobacco from the list of items the CDC is authorized
to sell at inmate commissaries and canteens.
3)Requires the directors of CDC and CYA to adopt regulations
prohibiting the possession of tobacco products by inmates in
state prison and CYA facilities.
EXISTING LAW :
1)Allows the Director of the CDC to prescribe and amend rules
and regulations for the administration of state prison
facilities. (Penal Code Section 5058.)
2)Provides that the Director of the CDC may maintain a canteen
at any prison under its jurisdiction for the sale of various
items to inmates, including tobacco. (Penal Code Section
5005.)
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3)Gives the Director of the CDC the authority to specify what
commodities will be sold at inmate canteens. (Penal Code
Section 5005.)
4)Provides that each facility shall establish an inmate canteen
pursuant to Penal Code Section 5005 enabling inmate purchases
of approved merchandise. Facility staff shall consult with
representatives of the inmate population when determining
items to be stocked in the canteen for resale to the inmates.
[15 CCR 3090(a).]
5)Specifies that inmates shall only be allowed to smoke in the
prison yard, as well as in areas designated by each
institution head for the purpose of religious ceremonies as
specified. [15 CCR 3188(b)(2), (e).]
6)Provides that no inmate shall possess tobacco products at any
reception center, the California Rehabilitation Center, or any
institution/facility that has voluntarily become tobacco
product free, except that the use of tobacco products may be
departmentally approved in inmate religious ceremonies. [15
CCR 3189(c).]
7)Allows cigarettes in an inmate's possession at the time the
inmate is placed in disciplinary detention as the only
exception to the prohibition against personal sundry and
entertainment items while serving detention. [15 CCR
3331(c).]
8)Allows the Director of the CYA to make and enforce all rules
appropriate to the proper accomplishment of the functions of
the CYA. [Welfare and Institutions Code Section 1712(b);
Penal Code Section 6001.]
9)Provides that wards/inmates, housed in CYA facilities, shall
not possess or use tobacco products. [15 CCR 4698(a).]
10)Provides that the Director of the CDC may sell or supply
tobacco and tobacco products, including cigarettes and
cigarette papers, to any person confined in any institution or
facility under the Director's jurisdiction who has attained
the age of 16 years, if the parent or guardian of the person
consents thereto; and may permit smoking by that person in any
institution or facility. [Penal Code Section 308(f).]
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11)Provides that the Department of the California Institution
for Women is authorized to establish a canteen for various
sundries, including tobacco products. (Penal Code Section
3326.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "A recent study
released by the Department of Health Services reported that it
costs an average of $3,500 each year in health care costs per
smoker in California. With approximately 160,000 inmates in
state prisons - roughly one-half of them smokers - it is
expected this will help drastically reduce the state's health
care expenses for inmates. The state spends approximately
$266 million in smoking-related health care costs for inmates.
"According to state corrections officials, banning tobacco in
prisons is not a new idea. Reception areas and virtually all
county and local jails have been tobacco free for some
time - a prisoner can spend up to one year and one-half in the
local jail and the Reception Center before being sent to his
or her final state prison. This means that prisoners are in a
tobacco free environment for quite some time before being
transferred to a state prison, where smoking is allowed.
Three state institutions - Wasco State Prison, the California
Men's Colony in San Luis Obispo, and the California Medical
Facility in Vacaville - have all gone tobacco free in recent
years. No residual behavioral problems have been noted as a
result of the ban.
"This bill is both a great way to save the state money, and it
will help make the prison population healthier. The intent is
not to punish prisoners further. This is a way of helping
them, that if they can survive their quitting this habit, then
maybe they can reform their lives in other ways, too."
2)Is this Law Necessary ? Existing law and regulations authorize
the implementation of a no-smoking policy. Directors have
broad authority in supervising correctional facilities and
discretionary control over the existence of canteens and their
inventory. [Penal Code Section 5005; 15 CCR Section
3188(b)(2), (e).] Possession and use of tobacco is prohibited
in CYA facilities, with the exception that the director may,
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but is not required to, permit smoking by an inmate 16 year
old or older with his or her parent's written consent. [15
CCR Section 4698(a); Penal Code Section 308(f).]
3)Case Law : A Massachusetts state court has observed that a ban
on tobacco products resulting in severe nicotine withdrawal
where no medical treatment had been provided could possibly
amount to an Eighth Amendment cruel and unusual punishment
violation. In LeMay v. DuBois, No. Civ.A.96-5153-A, 1996 WL
914061 (Mass. Super. August 18, 1997), the court dismissed all
but one of the nine lawsuits that alleged the smoking ban
violated constitutional rights, interfered with interstate
commerce by restricting tobacco sales, and amounted to
intentional infliction of emotional distress. Other than the
noted exception with regard to severe nicotine withdrawal
without medical treatment, the court held that a smoking ban
does not violate the Eighth Amendment. The court also found
medical treatment had been provided in the prison at issue.
4)Possible Negative Side Effects : The Associated Press reported
that critics of the no-smoking policy being implemented in New
York City prisons caution that the ban will have negative side
effects, including increased tension among inmates as smoking
is one of the inmates' remaining pleasures, is a pastime that
relieves stress, and cigarettes are a form of currency among
inmates.
A ban on tobacco may have a punitive effect. According to
current regulations, cigarettes in the inmate's possession are
the only personal sundry or entertainment item allowed while
an inmate is serving detention. [15 CCR 3331(c).]
Moreover, privileges that can be revoked, such as smoking, are
used as an incentive to encourage appropriate behavior by
inmates.
News articles have reported that other institutions have
experienced rioting and protests in response to a ban on
smoking, such as in Canada. Fights in Dallas, Texas, jails
were reported to have tripled in the three months after a
smoking ban was instituted without nicotine substitutes, and
Maryland prisons have also implemented a no smoking policy
without nicotine substitutes.
5)Other Approaches : The State of Kansas gave inmates one-year's
notice, enforced a ban on prisoners' tobacco use in March, and
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will offer quit-smoking classes and methods to ease the
transition. The ban in New York City's correctional
facilities went into effect over an 18-month period beginning
in 1999 - limits on smoking were gradually extended from
general areas to sleeping areas and eventually to entire
facilities.
6)Possible First Amendment Violation : This bill does not
provide an exemption for religious purposes. Current
regulations allow for use of tobacco as approved by the CDC in
religious ceremonies. [15 CCR 3188 (e), 3188 (b)(2), 3189.]
7)Statement in Support : According to the California
Correctional Supervisors Organization (CCSO), "banning tobacco
from the California correctional facilities will save the
California taxpayer hundreds of millions of dollars each year
in health care costs for state prison inmates and help to
provide a healthier and more productive environment for the
employees and inmates.
"By eliminating tobacco in prisons, the state will reduce
workers compensation claims and second hand smoke litigation,
help the inmates' families by making more money available for
other needs instead of having to purchase tobacco for addicted
inmates, and benefits inmates by helping them lead non-smoking
life styles well after they finish their prison term and
become active members of society.
8)Related Legislation : SB 206 (Brulte) of the 2003 Legislative
Session allows for the inmate canteen program to be extended
to institutions that discontinue the inmate quarterly package
program and establishes a pilot program at Pelican Bay State
Prison. SB 206 failed passage in the Senate Public Safety
Committee and was granted reconsideration.
REGISTERED SUPPORT / OPPOSITION :
Support
California Correctional Supervisors Organization
California Medical Association
Opposition
AB 384
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Friends Committee on Legislation
Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744