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,
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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.)
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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.
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"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
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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.
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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