BILL ANALYSIS Ó
AB 966
Page 1
Date of Hearing: January 14, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 966 (Bonta) - As Amended: January 6, 2014
SUMMARY : Requires that the Department of Corrections and
Rehabilitation (CDCR) shall develop a five-year plan to expand
the availability of condoms in all California prisons.
EXISTING LAW :
1)Proscribes that any person who participates in an act of
sodomy with any person of any age while confined in any state
prison or local detention facility shall be punished by
imprisonment in the state prison or in a county jail for not
more than one year. (Pen. Code, § 286, subd. (e).)
2)Provides that persons participating in an act of oral
copulation while confined in any state prison or local
detention facility shall be punished by imprisonment in the
state prison or in a county jail for a period of not more than
one year. (Pen. Code, § 288a, subd. (e).)
3)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. (Pen. Code, §
7500.)
4)Prohibits all sex acts, illegal and consensual, between
inmates. (15 California Code of Regulations 3007.)
5)Requires CDCR, contingent on the availability of funding, to
provide HIV/AIDS health and prevention information to inmates.
(Pen. Code, § 5008.1(a).)
6)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; the
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chief medical officer will make the determination whether to
require the testing. (Pen. Code, § 7512.)
7)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. (Pen. Code, § 7512.5.)
8)Requires probation and parole officers be notified when an
inmate being released from incarceration is infected with
AIDS, and permits these officers to notify certain persons who
will come into contact with the parolee or probationer if
authorized by law. (Pen. Code, § 7501, subd. (c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "Sexually transmitted disease is a tragic
reality of life in prison. The HIV/AIDS infection rate in
prison is estimated to be at least 8 to 10 times higher than
among the general population.
"AB 966 requires CDCR to develop a five-year plan to offer
condoms in all California prisons, giving the department wide
discretion in program development within its existing
authority.
"The bill is based on the successful findings of a Solano
State Prison condom pilot project conducted in 2008. The
purpose of that pilot project was to determine the
practicality and safety of condom distribution in a state
prison. The program was an indisputable success. My office
carefully drafted last year's AB 999 and this year's AB 966
based on the findings from that pilot project. Once we had the
data, the next logical step going forward was program
expansion.
"The data speaks for itself. AB 966 is a simple and sound
preventative public health policy that is evidence -based,
cost effective, informed by a highly successful pilot project,
and will save lives. Our Legislature has attempted three times
in the past to mandate condom distribution in our state
prisons and was disappointed with vetoes. AB 966 refines and
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retools those other efforts and brings all stakeholders
together, including CDCR, to stand up for the vulnerable
communities who are being affected by this devastating
disease."
2)HIV/AIDS in CDCR : According to CDCR's data, an average of
1,240 inmates are infected with HIV/AIDS in California's
prisons. CDCR estimates the cost of care for these inmates at
over $18 million. Because CDCR 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 sexual activity
is the leading cause for HIV infection in prison.
3)Evaluation of a Prisoner Condom Access Pilot Program Conducted
in One California Prison Facility : In his veto message of AB
1334 (Swanson), of the 2007-08 Legislative Session, the
Governor called for a study of the risk and viability of such
a program by identifying one state prison facility for the
purpose of allowing non-profit and health agencies to
distribute sexual barrier devices.
According to a report issued in 2011, "Although prohibited in
prisons, sexual activity occurs during incarceration. Custody
staff cannot be expected to prevent all sex among prisoners.
Outbreaks of sexually transmitted diseases (STDs) in
correctional settings, including syphilis, gonorrhea, and
hepatitis B, and in-custody transmission of HIV are well
documented. The use of condoms prevents the spread of STDs.
Condoms are defined internationally as the 'single, most
efficient, available technology to reduce the sexual
transmission of HIV and other sexually transmitted diseases'
(14). In 1993, the World Health Organization (WHO) and the
United Nations Programs on HIV/AIDS (UNAIDS) recommended that
condoms be made available to prisoners throughout their
incarceration and prior to release (15). In 2007, the United
Nations Office on Drugs and Crime joined WHO and UNAIDS in
recommending a range of risk-reduction measures, including
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confidential condom access for all male and female prisoners.
Similar to most other correctional systems, both California
Penal Code section 286, subdivision (e) and the California
Code of Regulations, Title 15, § 3007 prohibit sexual activity
in California prisons and jails, and concerns about safety and
security operations pose barriers to initiating condom
distribution programs. Based on the experiences of those
advocating for or implementing condom distribution in a
variety of correctional settings, many California Department
of Corrections and Rehabilitation (CDCR) correctional officers
and other personnel are concerned that condoms could be used
by inmates to conceal and transport contraband or controlled
substances or could be used as a weapon (e.g., 'gassing') in
assaults on staff or inmates. Staff and inmates also express
concern that improperly disposed used condoms may pose a
health risk. Custody staff may also view providing condoms as
condoning or even promoting illegal sexual activity among
inmates and that it could lead to increased sexual activity
among inmates. Despite these concerns, condom program
evaluation studies from jails and prison systems have found
that: following implementation, condom distribution is
accepted by a majority of inmates and correctional officers;
inmates approve of dispensing machines in discreetly
accessible locations; dispensing machines increase access
compared with distribution in group health education classes;
there were no serious incidents involving condoms; inmates
used condoms for sex; and self-reported sexual activity did
not increase. The New South Wales, Australia prison system
condom program evaluation, with a 90 percent survey
participation rate among inmates, found a statistically
significant decrease in self-reported sexual activity
following the introduction of condoms, possibly due to a newly
introduced HIV/STD and hepatitis education program or
increased awareness and reinforcement of prevention messages
due to the presence of the condom dispensers. In 2007,
WHO/UNAIDS/UNODC reviewed condom programs internationally and
concluded that prison condom programs are feasible, accepted
by a majority of correctional staff and inmates, have resulted
in no reported security problems or serious incidents
resulting in injury, and do not lead to increased sexual
activity or drug use.
"The Centers for Disease Control and Prevention (CDC) has urged
correctional systems to evaluate existing condom programs,
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and, for systems without condom access, to assess relevant
laws, policies, and local circumstances and determine the
risks and benefits of condom distribution. WHO recommends
focusing program evaluation on determining: whether condom
access has unintended negative consequences for safety or
security operations, the feasibility of implementing and
expanding condom access, and conditions that facilitate
acceptance among staff and inmates. In response to the WHO
recommendations, over 80 percent of European Union prison
systems, the Correctional Service of Canada, and prisons in
Australia, South Africa, Brazil, Indonesia, and Iran provide
condoms for inmates. In the United States, condom distribution
programs exist in the Los Angeles, California; San Francisco,
California; New York City, New York; Philadelphia,
Pennsylvania; and Washington, D.C. county jails; and in the
Mississippi and Vermont state prison systems. Condoms have
been available to jail inmates in San Francisco since 1989,
and to inmates in the Los Angeles jails since 2001. However,
the 165,000 state prisoners in California have not had access
to condoms, and a pilot program evaluating the risks, as
recommended by CDC, had not been conducted. Consistent with
CDC and WHO guidance, Governor Arnold Schwarzenegger, in his
October 14, 2007 veto message of Assembly Bill 1334, directed
CDCR to determine the 'risk and viability' of allowing
non-profit or healthcare agencies to distribute sexual barrier
protection devices (e.g., condoms) to inmates in one state
prison facility, noting that, while sexual activity in prisons
is against the law, providing condoms to inmates is
'consistent with the need to improve our prison healthcare
system and overall public health.'"
(http://www.cdph.ca.gov/programs/std/Documents/SBD%20Pilot_
Final%20Report_122210-CDPH-CCHCS_September2011.pdf.)
4)Problems with Condom Distribution : A major concern regarding
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 prisons and jails;
there are no reported incidents of such abuse.
5)Moral Objection to Condom Distribution : One complaint among
inmates and correctional officers for condom distribution in
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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 inmates risk infecting
their families upon release. Does the moral and fiscal
responsibility to protect the health of inmates and the public
at large outweigh the moral objections of condom distribution?
6)Governor's Veto Message on AB 999 (Bonta) : "I am returning
Assembly Bill 999 without my signature. This bill would
require the California Department of Corrections and
Rehabilitation to develop a plan to expand the availability of
condoms to all California prisons. The Department currently
allows family visitors to bring condoms for the purpose of the
family overnight visitation program. While expansion of the
program may be warranted, the Department should evaluate and
implement this expansion carefully and within its existing
authority."
7)Governor's Veto Message on AB 1334 (Swanson) : AB 1334
(Swanson), of the 2007-08 Legislative Session, was similar to
this bill and vetoed. In his veto message, the Governor
stated, "I am returning Assembly Bill 1334 without my
signature. This bill would enact the Inmate and Community
Public Health and Safety Act, which would allow any nonprofit
or health care agency to distribute sexual barrier protection
devices to inmates in state prisons. As stated in my veto of
AB 1677 last year, the provisions of this bill conflict with
Penal Code Sections 286 (e) and 288 (e), which make sexual
activity in prison unlawful. However, condom distribution in
prisons is not an unreasonable public policy and it is
consistent with the need to improve our prison healthcare
system and overall public health. Local jail systems in both
Los Angeles and San Francisco have already implemented condom
distribution programs. Therefore, I am directing the
California Department of Corrections and Rehabilitation to
determine the risk and viability of such a program by
identifying one state prison facility for the purpose of
allowing non-profit and health agencies to distribute sexual
barrier devices."
8)Governor's Veto Message on AB 1677 (Koretz) : AB 1677
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(Koretz), of the 2005-06 Legislative Session, was similar to
this bill and vetoed. In his veto message, the Governor
stated, "I am returning Assembly Bill 1677 without my
signature. The provisions of . . . [AB 1677] would conflict
with Penal Code Section 286(e) and 288(e). For this reason, I
am unable to sign this bill."
9)Prior Legislation :
a) AB 999 (Bonta), of the 2013-2014 Legislative Session,
would have required that the California Department of
Corrections and Rehabilitation (CDCR) develop a five-year
plan to extend the availability of condoms in all
California prisons; commencing on January 1, 2015, that no
less than five prisons be incorporated into the program
each year; and develop comprehensive plan including every
California prison by the final year. AB 999 was vetoed.
b) AB 1334 (Swanson), of the 2007-08 Legislative Session,
would have enacted the Inmate and Community Public Health
and Safety Act, which would have required the CDCR
Secretary to allow any non-profit or health care agency to
distribute sexual barrier protection devices. AB 1334 was
vetoed.
c) AB 1677 (Koretz), of the 2005-06 Legislative Session,
provided prison inmates with access to condoms for the
purpose of reducing the spread of HIV/AIDS. AB 1677 was
vetoed.
10)Argument in Support : According to the Friends Committee on
Legislation , "The Friends Committee on Legislation of
California (FCLCA), a Quaker-based lobby that advocates for
state legislation that is compassionate and respectful of the
inherent worth of every person. We support the right of
communities to strive for optimal public health, and we are
pleased to support AB 966. This bill directs the California
Department of Corrections and Rehabilitation (CDCR) to develop
a five-year plan to expand the availability of condoms within
the state prison system in order to reduce the spread of
HIV/AIDS and other sexually transmitted diseases.
"Despite the prohibition of sexual activities among prisoners,
there is a much higher prevalence of HIV/AIDS and other
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sexually transmitted diseases in correctional facilities than
in the general population. It is unreasonable to expect that
CDCR could prevent prisoners from being sexually active. In
addition, 95 percent of prisoners will return to their
communities, which means that slowing and reducing the
prevalence of HIV/AIDS in prisons is a vital public health
concern for the incarcerated, prison staff, and the broader
community.
"An evaluation of a recent pilot program conducted at
California State Prison, Solano, found no evidence of
increased security risks as a result of providing condoms in
vending machines. Using condoms is a low-cost, highly
effective method of reducing the spread of sexually
transmitted diseases."
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Healthcare Foundation
Alameda County Board of Supervisors
California Medical Association
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744