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).]
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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
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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
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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
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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.
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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
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1 private citizen
Analysis Prepared by : Nate Cameron / PUB. S. / (916) 319-3744