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