BILL ANALYSIS AB 1677 Page 1 Date of Hearing: April 19, 2005 Consultant: Nate Cameron ASSEMBLY COMMITTEE ON PUBLIC SAFETY Mark Leno, Chair AB 1677 (Koretz) - As Introduced: February 22, 2005 SUMMARY : Provides prison inmates with access to condoms for the purpose of reducing the spread of HIV/AIDS. Specifically, this bill : 1) Requires the California Department of Corrections (CDC) to allow any non-profit and public health agency to distribute sexual barrier devices such as condoms and dental dams to inmates. 2) Establishes that the distribution of those devices is not a crime and does not encourage sexual acts between inmates. 3) Provides that possession of those devices cannot be used as evidence of illegal activity for purposes of administrative sanctions. 4) Requires CDC to develop a plan for the disposal of used condoms that protects the anonymity of inmates and the health of correctional officers. EXISTING LAW : 1)Declares that the spread of HIV/AIDS within prison and jail populations presents a grave danger to inmates within those populations, law enforcement personnel, and other persons in contact with a prisoner infected with the AIDS virus, both during and after the prisoner's confinement. (Penal Code Section 7500.) 2)Prohibits all sex acts, illegal and consensual, between inmates. (15 California Code of Regulations 3007.) 3)Requires CDC, contingent on the availability of funding, to provide HIV/AIDS health and prevention information to inmates. [Penal Code Section 5008.1(a).] AB 1677 Page 2 4)Provides that an inmate may request HIV testing of another inmate if he or she reasonably believes that he or she has come into contact with the other inmate's bodily fluids. Provides that the chief medical officer will make the determination whether to require the testing. (Penal Code Section 7512.) 5)Authorizes the chief medical officer to order a test of an inmate if he or she concludes there are clinical symptoms of HIV/AIDS, as recognized by the Centers for Disease Control and Prevention. (Penal Code Section 7512.5.) 6)Requires probation and parole officers be notified when an inmate being released from incarceration is infected with AIDS, and permit these officers to notify certain persons who will come into contact with the parolee or probationer, if authorized by law. [Penal Code Section 7501(c).] 7)Requires CDC to pay for medical costs associated with HIV/AIDS infections. FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "The incidence of HIV infection in prisons is significantly higher than in the general population. This bill would permit non-profit or public health care agencies to distribute condoms in state prisons to prevent the spread of HIV and other sexually transmitted infections." 2)Background : According to information provided by the author, "Not distributing condoms in our prisons is costing us a fortune in HIV treatment costs. Sex in prison is a fact of life and so is HIV/AIDS. The HIV infection rate in prison is documented to be five times higher than in the general population. Most experts believe the actual infection rate to be far higher than what is documented. "With the average duration of incarceration at just two years, most inmates who become HIV positive while in prison will not develop symptoms until long after they have been released. While CDC may be off the hook for the treatment of most inmate AB 1677 Page 3 HIV infections, the taxpayers are not. Since former inmates are often poor they will rely on government-subsidized healthcare whether they are inside or outside of prison. "So what does it cost to treat the average HIV positive patient in the state Medi-Cal system? According the California Department of Health Services the average cost per patient with HIV is $23,964 per year. Over the life of the patient, a single infection can cost the state hundreds of thousands of dollars. "A majority of inmates have sex within the first 24 hours of their release. With the average duration of incarceration in California prisons at just over two years, it is clear that HIV transmission in prison quickly becomes HIV transmission in the general population. Most impacted are our minority communities where released inmates often reside and where a disproportionate number of new HIV infections are concentrated. "The typical prisoner begins incarceration being more likely to be HIV positive than a person in the general population. Placed in a single sex environment without access to sexual barrier protection, heterosexual prisoners may engage in consensual unprotected sex for variety of reasons including bartering for goods, personal protection, or the need for human intimacy. "Few studies have been done on the frequency of sex in prison. Older estimates range from 30% to 60% of inmates engage in homosexual behavior. In a 2002 article in The Prison Journal, inmates said 44% of people they knew had sex in prison. Not even prison officials dispute that sex between inmates happens or that preventing it is virtually impossible in our increasingly crowded prisons. Acknowledging the inevitability of sex in prison and taking steps to mitigate HIV transmission and the resulting toll in human suffering and treatment costs is a common sense approach most Californians support. "Most of the industrialized world has distributed condoms in prisons for years including virtually all of the European Union, Canada, Brazil, South Africa, and parts of Australia. The Canadian federal prison system is a model for HIV prevention where condoms were first made available to prisoners in 1992. After a brief period of one-by-one condom AB 1677 Page 4 distribution, Correctional Service Canada now places condoms in areas where prisoners can pick them up without being seen by correctional officers or other inmates. "Fears that condoms would somehow be used as a weapon or to smuggle drugs or other contraband within prisons have not materialized. A survey of Canadian correctional officers found that 82% reported that making condoms available in prisons had not created any problems in the institution. The 18% that did cite problems reported issues not related to safety and security such as using 'too many' condoms. "In the Los Angeles and San Francisco County jails and in the prisons around the world that have distributed condoms to inmates, there are no cases in which a correctional authority started and later reversed the policy. Distributing condoms in prison is not an untested idea on which we should move slowly, it is a sensible public health measure on which we should act now. "In the California correctional system, prisoners receive HIV prevention education, but are denied the barrier protection that can save their lives and can save taxpayers $23,000 per year for each infection prevented. The Legislature and the Governor should act quickly to pass and implement condom distribution in prisons. Thousands of lives and the financial solvency of our public health safety net are at stake." 3)HIV/AIDS in CDC : According to CDC's most recent data, there is an average of 1,240 inmates infected with HIV/AIDS in California's prisons. CDC estimates the cost of care for these inmates at over $18 million. Because CDC does not require HIV testing, the true number of infected inmates is unknown. According to the University of California, San Francisco, the rate of HIV infection among inmates is eight to ten times higher than among the general population. Various studies provided by the author attribute this high rate to intravenous drug use prior to incarceration. Due to the difficultly in conducting studies and limited availability of information, the rate causes of infection for inmates after incarceration are unknown. However, these studies estimate that sexuality activity is the leading cause for HIV infection in prison. 4)Sexual Activity in CDC : CDC prohibits all sexual activity AB 1677 Page 5 among inmates. However, various studies provided by the author suggest that anywhere from 10% to as many as 45% of prisoners engage in homosexual activity. While some inmates engage in sexual activity for pleasure, others trade sexual favors for commodities and protection and others are forced into sexual activities by duress or violence. According to background information provided by the author, no prison system has lifted a ban on sexual activity among inmates since distributing condoms. 5)Problems with Condom Distribution : According to background information provided by the author, a fear of condom distribution in prisons is their potential misuse as weapons or devices to hide narcotics. However, the European Union nations, Canada, Australia, South Africa, Brazil, Vermont, Mississippi, New York City, Philadelphia, the District of Columbia, Los Angeles, and San Francisco allow condom distribution to inmates in their prison and jails and there are no reported incidents of such abuse. 6)Moral Objection to Condom Distribution : According to the background information provided by the author, the chief complaint among inmates and correctional officers for condom distribution in prison is their moral objection to sexual activity between two men. Despite these objections, homosexuality occurs in California's prisons at a high rate. Denying sexually active inmates access to condoms exposes correctional officers, other inmates, and the community as many inmate risk infecting their families upon release. Do the moral objections to sexual activity in prison outweigh the moral objections and costs of HIV infection? 7)Sexual Assault in Prison : According to background information provided by the author, various studies have determined that anywhere from 1% to 28% of inmates are sexually assaulted while in prison. These figures are difficult to accurately determine because inmates are not likely to report or admit sexual assault. Additionally, what constitutes a sexual assault in prison is difficult to define because inmates will often consent to sexual activities under duress. Providing condoms in prison could protect victims of sexual assault from HIV infection. However, it is not clear whether condoms will be used in these situations or it the availability of these condoms will encourage such assaults. AB 1677 Page 6 8)Arguments in Support : a) The Honorable Henry Waxman states, "Distribution of condoms is not condoning sexual activity among prisoners. Rather, it is a recognition that lives can be saved by simple measures." b) The AIDS Healthcare Foundation states, "To compound the problem, spouses and significant others of inmates are exposed - generally unwittingly - when the inmates (now HIV+) are released from prison, thereby increasing HIV infection rates among certain populations, especially women of color." c) The San Francisco AIDS Foundation states, "Despite its legal status, sex will occur in our prisons. To ignore that fact is to jeopardize lives and assume needless public cost of care and treatment of preventable cases of HIV transmission." REGISTERED SUPPORT / OPPOSITION : Support AIDS Healthcare Foundation (Co-Sponsor) AIDS Project Los Angeles (Co-Sponsor) Southern California HIV Advocacy Coalition (Co-Sponsor) AIDS Legal Referral Panel Bienestar Human Services, Inc. Being Alive South Bay California Attorneys for Criminal Justice Drug Policy Alliance Network Gay and Lesbian Adolescent Social Services, Inc. Health Officers Association of California Honorable Henry Waxman, U.S. Representative, 30th District, California Internet Sexuality Information Systems, Inc. Lambda Letters Project San Francisco AIDS Foundation Stop AIDS Project 2 private citizens Opposition Traditional Values Coalition AB 1677 Page 7 1 private citizen Analysis Prepared by : Nate Cameron / PUB. S. / (916) 319-3744