BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 633
                                                                  Page  1

          Date of Hearing:   January 12, 2010
          Chief Counsel:      Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 633 (Ammiano) - As Amended:  January 4, 2010


           SUMMARY  :   Requires the California Department of Corrections and  
          Rehabilitation (CDCR) to consider self-reported safety concerns  
          related to sexual orientation and gender identity when  
          classifying inmates or wards in order to prevent sexual  
          victimization.  Specifically,  this bill  : 

          1)Requires the CDCR to consider self-reported safety concerns  
            related to sexual orientation and gender identity when  
            classifying inmates or wards in order to prevent sexual  
            victimization.

          2)Provides that CDCR shall not require any inmate or ward to  
            disclose or report or disclose his or her sexual orientation  
            or gender at any time, and a disclosure or report shall not be  
            discredited solely because it was not provided at an earlier  
            point in time.

          3)States that the CDCR is prohibited form disciplining or  
            otherwise punishing an inmate or ward if the inmate or ward  
            fails to disclose or report his or her sexual orientation or  
            gender identity during all or part of his or her term or  
            commitment.

          4)Clarifies that nothing in this section shall be construed as  
            to require or justify expansion of CDCR facilities.   

           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,  








                                                                  AB 633
                                                                  Page  2

            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 CDCR shall review informational handbooks  
            regarding sexual abuse in detention by outside organizations,  
            and upon approving the content thereof, handbooks provided by  
            one or more outside organizations shall be made available to  
            inmates and wards.  (Penal Code Section 2635.)


          3)Requires the CDCR inmate classification and housing assignment  
            procedures to 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 a  
            history of mental illness.  [Penal Code Section 2636(a).]


          4)Requires that CDCR ensure that staff members intervene when an  
            inmate or ward appears to be the target of sexual harassment  
            or intimidation.  [Penal Code Section 2636(b).]


          5)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.) 


          6)Requires that 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.) 


          7)Requires the CDCR to ensure that specified procedures are  
            performed in the investigation and prosecution of sexual abuse  
            incidents.  (Penal Code Section 2639.)  










                                                                  AB 633
                                                                  Page  3

          8)Requires the CDCR to keep statistics on the sexual abuse of  
            inmates and wards.  Sexual incidents shall not be classified  
            as "other" not simply included in a broader category of  
            general assaults.  Statistics shall include whether the abuse  
            perpetrated by a staff member or other inmate, the results of  
            the investigation and any resolution of the complaint by CDCR  
            officials and prosecution authorities.  The data shall be made  
            available to the Office of the Sexual Abuse Elimination  
            Ombudsperson.  (Penal Code Section 2640.)


           FISCAL EFFECT  :   Minor administrative costs to add additional  
          factors to classification and housing determination procedures.   
          These costs would be offset by indeterminable future savings to  
          the extent victimization is reduced and leads to decreased  
          litigation and recidivism, as well as medical (HIV and hepatitis  
          in particular) and mental health care savings.

           COMMENTS  :   

           1)Author's Statement  .  According to the author, "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  
            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. 









                                                                  AB 633
                                                                  Page  4

          "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)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  
               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  








                                                                  AB 633
                                                                  Page  5

               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.

             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.








                                                                  AB 633
                                                                  Page  6


           3)Related Legislation  :  AB 382 was identical to this bill in  
            that AB 382 required CDCR to consider self-reported safety  
            concerns related to sexual orientation and gender identity  
            when classifying inmates or wards.  AB 382 was vetoed. 

           4)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 
          
          None

           Opposition 
           
          None
           

          Analysis Prepared by  :    Gregory Pagan / PUB. S. / (916)  
          319-3744