BILL ANALYSIS
AB 382
Page 1
Date of Hearing: March 31, 2009
Consultant: Larry Yee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 382 (Ammiano) - As Introduced: February 23, 2009
SUMMARY : Requires the California Department of Corrections and
Rehabilitation (CDCR) to consider sexual orientation and gender
identity when classifying inmates in order to prevent sexual
violence.
EXISTING LAW :
1)Establishes the Prison Rape Elimination Act to establish a
zero-tolerance standard for the incidence of prison rape in
prisons in the United States; develop and implement national
standards for the detection, prevention, reduction, and
punishment of prison rape; increase the available data and
information on the incidence of prison rape; increase the
accountability of prison officials who fail to detect,
prevent, reduce, and punish prison rape; protect the Eighth
Amendment rights of federal, state, and local prisoners;
increase the efficiency and effectiveness of Federal
expenditures; and reduce the costs that prison rape imposes on
interstate commerce. [42 USC 15601.]
2)Provides that the California Department of Corrections and
Rehabilitation (CDCR) and the California Division of Juvenile
Justice shall provide training for current and future
corrections staff members regarding sexual abuse of inmates
and wards. This includes a handbook describing policies
related to sexual conduct. [Penal Code Section 2635.]
3)Provides the CDCR inmate classification and housing assignment
procedures shall take into account risk factors that can lead
to inmates and wards becoming the target of sexual
victimization or of being sexually aggressive toward others.
Relevant considerations include: age, whether the offender is
a violent or non-violent offender, and whether the inmate has
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a history of mental illness. [Penal Code Section
2636(a)-(b).]
4)Provides that CDCR must ensure its protocols for responding to
sexual abuse include specified requirements regarding
protecting the inmate or ward making the allegation of sexual
abuse. [Penal Code Section 2637(a)-(f).]
5)Thoughtful, confidential standards of physical and mental
health care shall be implemented to reduce the impact of
sexual abuse on inmates and wards in the CDCR. [Penal Code
Section 2638.]
6)Confidential mental health counseling intended to help the
victim to cope with the aftermath of abuse shall be offered to
those who report sexual abuse. Victims shall be monitored for
suicidal impulses, posttraumatic stress disorder, depression,
and other mental health consequences. Any adult inmate in
mental health counseling for any reason shall be entitled to
speak confidentially about sexual abuse. [Penal Code Section
2638(d)-(e).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Recent
attention has focused on the mounting crisis of overcrowding
and violence in California prisons. The condition of these
facilities has been the subject of both litigation and special
hearings of the California Legislature, including a December
2008 informational meeting on issues facing lesbian, gay,
bisexual, or transgender (LGBT) inmates in California prisons.
"The landmark case of Farrell v. Allen, which was brought under
state law as a taxpayer action to stop inhumane and illegal
conditions of confinement, spurred a comprehensive plan to
improve California's prison system. Pursuant to a consent
decree approved by a judge in November 2004, state officials
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have agreed to remedy serious ongoing problems in the state's
correctional facilities, including developing a system to
separate vulnerable prisoners from dangerous ones and a plan
to reduce violence.
"Sexual violence against prisoners who are LGBT is a recurring
problem that must be addressed by any reforms. According to a
recent study from the CDCR, 67% of LGBT inmates report being
sexually assaulted by another inmate, a rate 15 times higher
than the overall prison population.
"One of the most important tools available to corrections
officials to prevent sexual assault is the use of appropriate
prisoner classification and housing protocols. While anyone
can be a victim of sexual violence behind bars, typical
victims are young, non-violent, or first time offenders. LGBT
prisoners or those perceived to be LGBT are also exceptionally
vulnerable to violence."
2)Background : According to the background submitted by the
author: "Existing law provides no protection for LGBT inmates
housed in the prison system. Further, the CDCR has no
specific policy to ensure the safety of those inmates. As a
result, LGBT people in the prison system are routinely made
victims of sexual violence. "
3)Prison Rape Elimination Act of 2003 : In 2003, Congress
enacted the Prison Rape Elimination Act. [42 USC 15601.] The
Act makes the following findings:
a) Insufficient research has been conducted and
insufficient data reported on the extent of prison rape.
However, experts have conservatively estimated that at
least 13% of the inmates in the United States have been
sexually assaulted in prison. Many inmates have suffered
repeated assaults. Under this estimate, nearly 200,000
inmates now incarcerated have been or will be the victims
of prison rape. The total number of inmates who have been
sexually assaulted in the past 20 years likely exceeds one
million.
b) Young, first-time offenders are at increased risk of
sexual victimization. Juveniles are five times more likely
to be sexually assaulted in adult rather than juvenile
facilities - often within the first 48 hours of
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incarceration.
c) Most prison staff are not adequately trained or prepared
to prevent, report, or treat inmate sexual assaults.
d) Prison rape often goes unreported, and inmate victims
often receive inadequate treatment for the severe physical
and psychological effects of sexual assault - if they
receive treatment at all.
e) HIV and AIDS are major public health problems within
America's correctional facilities. In 2000, 25,088 inmates
in federal and state prisons were known to be infected with
HIV/AIDS. In 2000, HIV/AIDS accounted for more than 6% of
all deaths in federal and state prisons. Infection rates
for other STDs, tuberculosis, and Hepatitis B and C are
also far greater for prisoners than for the American
population as a whole. Prison rape undermines the public
health by contributing to the spread of these diseases and
often giving a potential death sentence to its victims.
f) Prison rape endangers the public safety by making
brutalized inmates more likely to commit crimes when they
are released - as 600,000 inmates are each year.
g) The frequently interracial character of prison sexual
assaults significantly exacerbates interracial tensions,
both within prison and, upon release of perpetrators and
victims from prison, in the community at large.
h) Prison rape increases the level of homicides and other
violence against inmates and staff and the risk of
insurrections and riots.
i) Victims of prison rape suffer severe physical and
psychological effects that hinder their ability to
integrate into the community and maintain stable employment
upon their release from prison. Thus, they are more likely
to become homeless and/or require government assistance.
j) Members of the public and government officials are
largely unaware of the epidemic character of prison rape
and the day-to-day horror experienced by victimized
inmates.
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aa) The high incidence of sexual assault within prisons
involves actual and potential violations of the United
States Constitution. In Farmer v. Brennan, 511 U.S. 825
[128 L. Ed. 2d 811] (1994), the Supreme Court ruled that
deliberate indifference to the substantial risk of sexual
assault violates prisoners' rights under the Cruel and
Unusual Punishments Clause of the Eighth Amendment. The
Eighth Amendment rights of state and local prisoners are
protected through the Due Process Clause of the Fourteenth
Amendment. Pursuant to the power of Congress under Section
Five of the Fourteenth Amendment, Congress may take action
to enforce those rights in states where officials have
demonstrated such indifference. States that do not take
basic steps to abate prison rape by adopting standards that
do not generate significant additional expenditures
demonstrate such indifference. Therefore, such states are
not entitled to the same level of federal benefits as other
states.
4)Arguments in Support :
a) According to Equality California (the sponsor of this
bill), " . . . One of the most important tools available to
corrections officials to prevent sexual assault is the use
of appropriate prisoner classification and housing
protocols. While anyone can be a victim of sexual violence
behind bars, typical victims are young, non-violent,
first-time offenders. LGBT prisoners or those perceived to
be LGBT are also exceptionally vulnerable to violence."
b) According to the American Federation of State, County,
and Municipal Employees (AFSCME) , "The goal of AB 382 is to
decrease the amount of sexual violence occurring in our
prisons. AFSCME supports the equal treatment of wards and
inmates within our state regardless of sexual orientation
or gender identity. The CDCR inmate classification and
housing assignment procedures should take into account risk
factors that can lead to inmates and wards becoming the
target of sexual victimization or of being sexually
aggressive toward others."
c) According to Justice Now , "AB 382 would promote safety
for LGBT people in the prison system by adding sexual
orientation and gender identity to the current list of
factors that should be considered when classifying and
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housing people in prison. The bill would promote a feeling
of safety for LGBT persons, a goal my organization strongly
supports."
5)Prior Legislation : AB 550 (Goldberg), Chapter 303, Statutes
of 2005, established the Sexual Abuse in Detention Elimination
Act, requiring the CDCR to adopt policies, practices, and
protocols to protect inmates from sexual abuse .
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (Sponsor)
All of Us or None
American Federation of State, County
and Municipal Employees
Asian and Pacific Islander Wellness Center
Asian Communities for Reproductive Justice
California Coalition for Women Prisoners
California Communities United Institute
Justice Now
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Transgender, Gender Variant and Intersex
Justice Project
Transgender Law Center
Youth Law Center
One private individual
Opposition
None received
Analysis Prepared by : Larry Yee / PUB. S. / (916) 319-3744