BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 384 (Leslie)
As Amended March 24, 2003
Hearing date: June 1, 2004
Penal Code and Welfare and Institutions Code
SH:br
PROHIBITION ON TOBACCO PRODUCTS
ADULT AND YOUTH STATE CORRECTIONAL FACILITIES.
HISTORY
Source: Author
Prior Legislation: AB 506 (Aguiar) - 1997-98; heard in the
Senate Committee on Public Safety Subcommittee on
Prison Construction and Operations and not referred
to the full committee
Support: California Medical Association; Medical Staff,
California Men's Colony (San Luis Obispo); Los Angeles
County Board of Supervisors; California Correctional
Supervisors Organization, Inc.; Californians for
Common Sense Laws; individual letters from inmates and
others
Opposition:Friends Committee on Legislation of California
Assembly Floor Vote: Ayes 66 - Noes 4
KEY ISSUES
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SHOULD THE DIRECTORS OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS
AND THE CALIFORNIA YOUTH AUTHORITY BE REQUIRED TO ADOPT
REGULATIONS PROHIBITING THE POSSESSION OF TOBACCO PRODUCTS IN
ALL OF THE CDC AND CYA INSTITUTIONS, AS SPECIFIED?
SHOULD RELATED CHANGES IN LAW BE ENACTED?
PURPOSE
The purpose of this bill is to require that the Directors of the
California Department of Corrections and the California Youth
Authority adopt regulations prohibiting the possession of
tobacco products in all of the CDC and CYA institutions and to
make related changes in law.
Existing law provides that:
The Director of the Department of Corrections is vested with
the supervision, management and control of the state prisons
and is responsible for the care, custody, treatment, training,
discipline and employment of a person confined in those
prisons. The Director may prescribe rules and regulations for
the administration of the prisons. (Penal Code 5054 and
5058.)
Generally provides that state prisoners may, during
confinement, be deprived of only such rights as is reasonably
related to legitimate penological interests. (Penal Code
2600.)
Prohibits any person from supplying tobacco products to a
minor (under 18 years of age) but contains an exception for
the Director of Corrections which may sell or supply tobacco
and tobacco products, including cigarettes and cigarette
papers, to any person confined in any institution or facility
under its jurisdiction who has attained the age of 16 years,
if the parent or guardian of the person consents, and may
permit smoking by any such person in any such institution or
facility. No officer or employee of the Department of
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Corrections shall be considered to have violated the general
prohibition if he or she provides tobacco products pursuant to
this exception. (Penal Code 308.)
Provides that all powers, duties, and functions pertaining to
the care and treatment of wards provided by any provision of
law and not specifically and expressly assigned to the
Youthful Offender Parole Board shall be exercised and
performed by the Director of the Youth Authority. (Welfare
and Institutions Code 1712.)
Provides that no public employee or member of the public shall
smoke any tobacco product inside a public building, or in an
outdoor area within 20 feet of a main exit, entrance, or
operable window of a public building, or in a passenger
vehicle, owned by the State. (Government Code 7597(a).)
Provides that this section shall not preempt the authority of
any county, city, city and county, California Community
College campus, campus of the California State University, or
campus of the University of California to adopt and enforce
additional smoking and tobacco control ordinances,
regulations, or policies that are more restrictive than the
applicable standards required by this chapter. (Government
Code 7597(b).)
States that, except as provided in Government Code Section
7597, a public employee or other person may smoke in any
outdoor area of a public building unless otherwise prohibited
by state law or local ordinance and a sign describing the
prohibition is posted by the state, county, or city agency or
other appropriate entity. (Government Code 7598.)
Provides that not later than January 31, 1994, and thereafter
upon initial employment, each state agency shall inform its
employees about the smoking prohibition contained in
Government Code Section 7597, areas where smoking is
permitted, and the availability of tobacco smoking control
programs. (Government Code 19994.33(c).)
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Executive Order W-180-98 (signed June 24, 1998) provides that:
Effective on or before September 1, 1998, the CDC
shall prepare all necessary policies and regulations,
in accordance with Administrative Procedures Act, to
implement the total ban of tobacco product for inmates
in the buildings and the grounds of any CDC Reception
Center and CRC [California Rehabilitation Center at
Norco], except for departmentally approved inmate
religious ceremonies; defines tobacco products
expansively; indicates that steps will be evaluated
for a system-wide ban on tobacco products, including
in visiting areas; and provides that the CDC is to
consider voluntary smoke free facilities for staff and
inmates at selected institutions.
This bill does the following:
Requires that the Director of Corrections adopt regulations
prohibiting the possession of tobacco products by inmates in
all institutions and prison facilities under the jurisdiction
of the Department of Corrections and provides that a violation
of this prohibition is a serious rule violation, as specified.
Requires that the Director of the Youth Authority adopt
regulations prohibiting the possession of tobacco products by
inmates in all institutions and camps under the jurisdiction
of the Department of the Youth Authority.
Deletes the existing authority for the CDC and the CYA to sell
tobacco at a commissary or canteen.
Deletes the existing authority of the Department of
Corrections to provide tobacco products to an inmate who is 16
years of age or older, if the parent or guardian consents, in
all Department institutions.
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COMMENTS
1. Need for This Bill
The author's background includes:
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 our
state prisons - roughly 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.
At Wasco State Prison, prior to banning smoking, the
institution had numerous cases of asthma each year.
Two years ago, after the ban went in place, the prison
had only one.
Indeed, 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. 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 our prison population healthier.
We're not looking to further punish prisoners. We
see this as 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.
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2. Current State of Tobacco in the CDC
The Department of Corrections and CYA - both staff, inmates, and
wards - are subject to the same general restrictions on smoking
as any other state agencies, which prohibit smoking - not the
use of smokeless tobacco products - in state buildings and
within prescribed distances of entrances, exits, and operable
windows of state agencies. [See Comment #9, below, for specific
comments about the CYA.]
In addition, 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 5005; 15 CCR 3188(b)(2), (e).)
Possession and use of tobacco is prohibited in CYA facilities,
with the exception that the director may, 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 4698(a); Penal Code
308(f).)
Information provided by the CDC at the request of Committee
staff includes the following:
Pursuant to Executive Order W-180-98, the CDC banned inmates
from possessing tobacco products in all of the Reception
Centers and at the California Rehabilitation Center. Since
that time, the following six institutions have also banned
inmates from possessing tobacco products:
March 1, 2002 Pelican Bay State Prison
April 1, 2002 California State Prison, Sacramento
May 1, 2002 Wasco State Prison (RC ban extended to
entire prison)
July 1, 2002 California Men's Colony
September 1, 2002 California Medical Facility
January 1, 2003 Deuel Vocational Institution (RC ban
extended to entire prison)
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Based in part on the following information received from those
institutions that have banned tobacco, the transition seems to
have been successful.
Participating institutions provided advance notice in writing
to all inmates, staff, and visitors. Canteen sales of tobacco
products were stopped several months before the date of the
ban, allowing inmates to exhaust existing personal supplies of
tobacco.
A pronounced reduction in asthma-related complaints and in
respiratory complications in general is reported at two
prisons. No discernible negative impact on medical services
has been noted.
There has been a slight increase in the total number of rules
violation reports concerning tobacco. However, the total
effect of these rules violation reports is so negligible that
no significant impact has resulted.
The number of tobacco related inmate appeals continues to
steadily decline.
Since the enactment of the tobacco ban, there have been no
lawsuits or habeas corpus matters filed. The American Civil
Liberties Union (ACLU) has provided information concerning
court decisions in other venues which indicate that there is
no constitutional right to smoke in prison and that a ban on
smoking is not "cruel and unusual punishment."
In order to assist the inmate population during the transition
to a tobacco-free environment, smoking cessation groups or
videos were made available to the inmate population at Pelican
Bay State Prison, California Men's Colony, and California
State Prison, Sacramento.
An overall reduction in maintenance and repair to housing
units was reported by California Men's Colony and California
State Prison, Sacramento. This decline is attributed to a
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decrease in damages to electrical switches, outlets, and
devices associated with inmates attempting to light their
cigarettes.
Tobacco use cessation assistance is offered to the inmate
population in the form of tobacco use cessation classes,
support groups, videotapes, and the distribution of printed
tobacco cessation materials. These are the same materials
that are recommended by, and available (often at no cost) to
the general public, by the American Cancer Society, the
American Lung Association, the American Heart Association, the
U.S. Department of Health and Human Services, and the Center
for Disease Control.
Concerns have been raised regarding whether the CDC should be
required to offer nicotine replacement cessation materials to
help inmates cope with the withdrawal from nicotine. Over the
counter nicotine replacement materials include nicotine gum
(i.e. Nicorette), nicotine lozenges (i.e. Commit), and
nicotine patches (i.e. Nicoderm). Additionally, prescription
nicotine replacement materials include a nicotine nasal spray
and a nicotine inhaler (i.e. Nicotrol).
It should be noted that the issue of offering nicotine
replacement cessation materials to the inmate population was
reviewed and considered by the CDC; however, for a variety of
reasons, it was determined that nicotine replacement cessation
materials would not be offered to the inmate population.
Nicotine is an addictive and potentially dangerous drug. Each
of the nicotine replacement materials listed above contains
anywhere from 2 mg of nicotine (lozenge and gum) to 21 mg of
nicotine (patch), and each carries its own significant
negative side effects, including headaches, dizziness, upset
stomach, weakness, blurred vision, itching and burning of the
skin, diarrhea, coughing, and throat irritation.
Additionally, nicotine replacement materials must be used
exactly as directed, as the minimum acute lethal dose for
nicotine in adults is reported to be 40 to 60 mg.
Because of the potential for personal misuse of nicotine
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replacement cessation materials, or of their possible use as
barter material within the inmate population, these materials
would have to be dispensed in the same manner as medication.
CDC's health care staff would have to dispense and monitor
this kind of treatment, which would require significant
additional staffing. Additionally, the U.S. Surgeon General
reported that nicotine withdrawal symptoms peak within the
first few days and subside within a few weeks. Withdrawal
symptoms can include irritability, craving, cognitive and
attention deficits, sleeping disturbance and increased
appetite; however, if an inmate were to experiences withdrawal
symptoms so severe that it creates a medical situation,
medical treatment would be provided.
3. Other States' Experience
The CDC additionally provided at Committee staff's request the
following information pertaining to other states:
------------------------------------------------------------------
|State |Inmates |Staff |
|-----------+--------------------------+---------------------------|
| | | |
|-----------+--------------------------+---------------------------|
|Colorado |Complete ban |Complete ban |
|-----------+--------------------------+---------------------------|
|Delaware |Complete ban |Complete ban |
|-----------+--------------------------+---------------------------|
|Idaho |Complete ban |Complete ban |
|-----------+--------------------------+---------------------------|
|Indiana |Complete ban |Complete ban |
|-----------+--------------------------+---------------------------|
|Maine |Complete ban |Complete ban |
|-----------+--------------------------+---------------------------|
|Minnesota |Complete ban |Complete ban |
|-----------+--------------------------+---------------------------|
|Nebraska |Complete ban |Complete ban |
|-----------+--------------------------+---------------------------|
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|Maryland |Complete ban since 2001 |Outside, designated areas |
| | |only, away from people (to |
| | |avoid secondhand smoke |
| | |possibility) |
|-----------+--------------------------+---------------------------|
|Texas |Complete ban |Banned in buildings, can |
| | |smoke outside |
|-----------+--------------------------+---------------------------|
|Michigan |Banned in buildings, can |Banned in buildings, can |
| |smoke outside |smoke outside |
|-----------+--------------------------+---------------------------|
|South |Banned in buildings, can |Banned in buildings, can |
|Carolina |smoke outside |smoke outside |
|-----------+--------------------------+---------------------------|
|Missouri |Smoking allowed in cells, |Can smoke in outside areas |
| |smokers housed with other |designated for "smoking" |
| |smokers | |
------------------------------------------------------------------
4. Economic Effect of This Bill
Also at Committee staff's request, the CDC provided the
following evaluation of the economic impact of this bill on CDC
tobacco sales:
Based on 2003 tobacco-related sales at CDC of about
$5.4 million, which generated about $1 million in
tobacco taxes and about $370,000 in sales tax, the
State would potentially lose a corresponding amount of
tax revenue. The potential sales tax loss could be
offset to a significant degree, by a tendency for
inmates to spend their money on other canteen options
when tobacco is not an option. Loss of tobacco tax
proceeds would not be offset and based on these
figures, would lead to a General Fund reduction of
about $100,000, a reduction to the California Children
and Families First Trust Fund of about $500,000, a
reduction of about $250,000 to the Cigarette and
Tobacco Products Surcharge Fund, and a minor reduction
to the Breast Cancer Fund.
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5. Support for This Bill
The California Correctional Supervisor Organization (CCSO)
letter in support of this bill includes:
We truly believe that this measure will save the
California taxpayers 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 you will also:
Reduce workers' compensation claims and
secondhand smoke litigations;
Help the inmates' families by making more money
available for other needs instead of having to
purchase tobacco for an addicted inmate;
Benefit inmates by helping them lead
non-smoking life styles well after they finish
their prison term and become active members of
society.
CCSO representatives stated in person that since tobacco is an
addiction, it is unrealistic to place those smoking tobacco in a
position where they can smoke outside of buildings when they are
routinely confined for 2/3's of the day inside where they cannot
legally smoke and that that leads to smoking in cells, where
creative ways must be found to light cigarettes, since lighting
materials are not allowed in cells (prison yards routinely have
electronic cigarette lighters). Further, they indicated that
inmates in county jails are not allowed to smoke as is the case
in the CDC's reception centers, so that inmates routinely are in
a non-smoking situation for months before being returned to a
smoking environment at other CDC facilities that are not
tobacco-free.
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In addition, the author's office also indicates that:
It is inconsistent to ban prisoners from smoking at
local jails and at CDC Reception Centers only to give
them the opportunity to get addicted once again at the
state prison. There are also many inmates who do not
smoke. They become victims of secondhand smoke and
all the residual illnesses caused by breathing tobacco
fumes. AB 384 is a great opportunity to foster a
healthier state prison system as well as save
taxpayers money in health-related costs.
6. Opposition to This Bill
The Friends Committee on Legislation letter in opposition to
this bill includes:
. . . While we very much appreciate the goal to reduce
tobacco use and improve the health of prisoners, and
we fully recognize the dangers posed to nonsmokers by
second-hand smoke, we disagree with the punitive means
employed by this legislation.
Because nicotine is highly addictive, more than 90
percent of smokers who try to quit smoking on their
own will fail, and most will be smoking again within a
few days of attempting to quit (National Institute of
Drug Abuse). Because tobacco can be purchased cheaply
on the outside and sold at huge markups inside the
prison walls, it appears that tobacco is becoming the
number one contraband item in some prisons where
tobacco has been banned.
Contrarily, employing a public health approach is more
likely to reduce tobacco use. Pharmacological
treatments can double the rate of successful
cessation. Nicotine replacement therapies, such as
the nicotine patch, nasal spray and inhaler and
nicotine lozenges have little potential for abuse
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since they do not produce the pleasurable effects of
tobacco products. When combined with behavioral
modification programs, the success rates are even
higher (National Institute of Drug Abuse). Australia
has taken a therapeutic approach to reduce tobacco use
in prisons. It is our hope that the Legislature will
consider doing the same, and we would be happy to work
with you towards this important goal.
Lastly, please consider this proposal in terms of
recent changes made at CDC. Visiting days have been
scaled back from three or four to two. Prisoners will
no longer be allowed to receive quarterly packages
directly from family members, and the governor has
proposed reducing meals on weekends. The totality of
these restrictions will result in more tension and
increases the possibility of violence in our prisons.
7. Possible Drafting Issues Raised by This Bill
This bill would enact into statute the penalty to be applicable
to violations of the proposed tobacco products ban as "a serious
rule violation pursuant to Section 3315 of Division 3 of Title
15 of the California Code of Regulations." The existing penalty
applicable in existing tobacco-free CDC institutions is an
administrative rule violation pursuant to Section 3314 of Title
15. Section 3315(a)(3)(M) does provide that "A repeated pattern
of administrative rule violations for the same offense" may be
charged as a serious rule violation. Serious rule violations do
require a hearing at the senior hearings officer or higher level
while administrative rules violations involve hearings by a
lower level hearing officer.
WOULD IT BE APPROPRIATE FOR THE AUTHOR TO AMEND THIS BILL TO
STATE THAT VIOLATIONS WOULD BE "ADMINISTRATIVE" RATHER THAN
"SERIOUS" OR TO LEAVE THE DETERMINATION OF THE PENALTY UP TO THE
CDC TO DETERMINE ALTOGETHER?
This bill does not contain any exemption for "departmentally
approved religious ceremonies" as is contained in the 1998
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Executive Order.
WOULD IT BE APPROPRIATE TO ADD A RELIGIOUS EXEMPTION IN THIS
BILL?
This bill refers on page 5, line 7, to "inmates" of the CYA.
The CYA houses "wards" not inmates, although some CDC "inmates"
have been housed by the CYA until those inmates attain age 18.
SHOULD THAT REFERENCE BY CHANGED TO "WARDS"?
This bill would take effect on January 1, 2005, if enacted. It
may or may not be appropriate for the author to consider
delaying the operative date of all or some of this bill's
provisions. As noted in the background provided by the CDC,
above, the cessation of the use of tobacco products in state
prisons has been planned and phased in. This bill would on
January 1, 2005, remove the CDC's authority to sell tobacco
products at commissaries and canteens and require the CDC to
adopt regulations which themselves will take some time to
implement (although the CDC does have broad "emergency
regulation" authority).
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8. Existing Provisions of the Bargaining Unit #6 MOU Regarding
the CDC and Smoking
The current MOU for Bargaining Unit #6, Appendix item #14 -
Addendum to Section 16.04 - CDC smoking policy, contains a number
of detailed items, including the following:
1. The State will post "No Smoking" signs in the
outside areas where smoking is prohibited.
2. In the event legislation is introduced to ban
tobacco products for the inmates, the Department
agrees to duly consider supporting such a bill.
3. It is the intent and expectation of the Department
and CCPOA that effective Corrective Action will be
taken prior to any Adverse Personnel Action (APA) for
violation of the Department's smoking policy.
Therefore, as part of the State's process of
progressive discipline, an employee who violates the
Department's AB on smoking policy will be offered the
opportunity to receive medical treatment and/or
counseling for smoking cessation. This offer will be
made prior to any referral for APA for the employee's
first documented violation (i.e., Employee Counseling
Record or LOI). . . .
4. The Department agrees to include smoking cessation
in the IST (In-Service Training) programs. The
Department will ensure that all instructors of the
smoking cessation programs are vendor qualified, e.g.
American Lung Association, Cancer Society.
***
7. The Department agrees that all inmates will only
be allowed to smoke tobacco products on prison yards
and, except for safety and security considerations,
some yards may be designated no smoking, e.g.,
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administrative segregation, security housing units.
8. The Department agrees to develop enforcement
policies and procedures regarding inmate visitors and
members of the public for violation of the
Department's smoking policy.
9. The Department agrees not to punitively job change
smokers into a job assignment where they do not have
the ability to smoke.
9. Impact on the California Youth Authority
This bill adds a statutory prohibition on wards of the
Department of Youth Authority from using tobacco products.
Since at least 1992, the following regulation has been in effect
at the Department of Youth Authority:
Title 15, Section 4698, California Code of
Regulations. Use of Tobacco
(a) Wards/inmates, housed in Youth Authority
facilities, shall not possess or use tobacco products.
IS A STATUTORY CHANGE NEEDED GIVEN THE DEPARTMENT'S EXISTING
REGULATIONS?
10. Current CDC Facts
The CDC "Facts and Figures - Second Quarter 2004" includes the
following:
As of February 2002, the maximum prison capacity was
approximately 170,100. Upon completion of the
administrative segregation housing units and the Delano
II maximum-security institution, the California
Department of Correction's maximum housing capacity
will increase to approximately 176,500.
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About Prisons - Facilities : 32 state prisons ranging
from minimum to maximum custody; 37 camps, minimum
custody facilities located in wilderness areas where
inmates are trained as wildland firefighters; 12
community correctional facilities (CCF's); and 5
prisoner mother facilities. Population : All
Institutions: 162,120.
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