BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 966
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          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