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  








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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.









                                                                  AB 1677
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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








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          1 private citizen


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