BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

                                                                     9
                                                                     6
                                                                     6
          AB 966 (Bonta)                                              
          As Amended January 6, 2014 
          Hearing date:  May 13, 2014
          Penal Code
          AL/JRD:mc 

                                   CONDOMS IN PRISON  

                                       HISTORY

          Source:   AIDS Healthcare Foundation

          Prior Legislation: AB 999 (Bonta) - 2013, vetoed
                       AB 1334 (Swanson) - 2008, vetoed
                       AB 1677 (Koretz) - 2006, vetoed

          Support: Health Officers Association of California; California  
                   Medical Association; American Civil Liberties Union of  
                   California; California State Conference of the NAACP;  
                   Beyond AIDS; Alameda County Board of Supervisors; Women  
                   Organized to Respond to Life-threatening Diseases;  
                   Alameda-Contra Costa Medical Association; Friends  
                   Committee on Legislation of California; Taxpayers for  
                   Improving Public Safety; Legal Services for Prisoners  
                   with Children; Harm Reduction in Prison Coalition; HIV  
                   Education and Prevention Project of Alameda County;  
                   California Academy of Preventative Medicine; Planned  
                   Parenthood; Los Angeles County Board of Supervisors;  
                   California Communities United Institute; Alameda County  
                   Board of Supervisors; National Association of Social  
                   Workers-California Chapter; California Public Defenders  
                   Association; numerous individuals 

          Opposition:One individual  



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          Assembly Floor Vote:  Ayes  48 - Noes  26



                                         KEY ISSUE
           
          SHOULD THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION  
          BE REQUIRED TO DEVELOP A PLAN TO EXPAND THE AVAILABILITY OF CONDOMS  
          IN CALIFORNIA PRISONS?



                                       PURPOSE

          The purpose of this bill is to require the California Department  
          of Corrections and Rehabilitation (CDCR) to develop a five-year  
          plan to expand the availability of condoms in all California  
          prisons. 

           Under existing law  , the Secretary of the CDCR is vested with the  
          supervision, management, and control of the state prisons and is  
          responsible for the care, custody, treatment, training,  
          discipline and employment of a person confined in those prisons.  
           The Director may prescribe rules and regulations for the  
          administration of the prisons.  (Penal Code §§ 5054 and 5058.)

           Existing law  does the following:

                 Provides 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.  (Penal Code § 286(e).)


                 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.  (Penal Code § 288a(e).)



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                 Requires CDCR, contingent on the availability of  
               funding, to provide HIV/AIDS health and prevention  
               information to inmates.  (Penal Code § 5008.1(a).)


                 Declares that 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.  (Penal  
               Code § 7500.)


                 Provides that a law enforcement employee, custodial  
               staff, or 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.   
               Provides that the chief medical officer will make the  
               determination whether to require the testing.  (Penal Code  
               §§ 7500 et seq.)


                 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.  (Penal Code § 7512.5.)


                 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.  (Penal Code § 7501(c).)


                 Requires CDCR to pay for medical costs, including those  
               associated with HIV/AIDS infections.

           This bill  would require the CDCR, based on the recommendations  



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          contained in the Report of the California Department of Health,  
          "Evaluation of a Prisoner Condom Access Pilot Program Conducted  
          in One California State Prison Facility," to develop a five-year  
          plan to expand the availability of condoms in all California  
          prisons.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  



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          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.


                                      COMMENTS

           1.Need for This Bill  



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          According to the author:

                Sexually transmitted disease is a tragic reality of  
                life in prison and using condoms is a low-cost,  
                highly effective method of reducing the spread of  
                sexually transmitted diseases.  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 would require CDCR to develop a five-year plan  
                to offer condoms in all California prisons, based on  
                the recommendations from the Solano Prison pilot  
                project. This 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.

                The long term benefits to vulnerable communities, and  
                to the budget, are well-worth the modest investment  
                of providing condoms in our prisons.  The Solano  
                pilot cost approximately $1.39 per prisoner to  
                implement; and the report concluded that the program  
                would pay for itself if the program averted just 2.7  
                to 5.5 infections per year.  According to the  
                California Department of Health Services, the average  
                cost per patient with HIV in the Medi-Cal system is  
                $23,964 per year.  Over the life of a patient, a  
                single infection can cost the state hundreds of  
                thousands of dollars. 

                AB 966 is a simple and sound preventative public  
                health policy that is data-driven, cost effective,  
                informed by a highly-successful pilot project, and  
                will save lives. 

           2.HIV/AIDS in California's Prison Population  




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          In 2013, CDCR treated 1,055 inmates for HIV/AIDS at a cost of  
          nearly $30,000 per year per inmate as estimated by California  
          Health Care Services.<1>  Because CDCR does not require HIV  
          testing for all inmates, the true number of infected inmates is  
          unknown.<2>  However, research shows that incarcerated  
          populations have disproportionately higher rates of infectious  
          diseases, including HIV/AIDS and other sexually transmitted  
          infections (STIs).  In fact, 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.<3>  Nationally, the Center for Disease Control (CDC)  
          estimates that the rate of confirmed AIDS cases among state and  
          federal prisons to be about 2.4 times the rate in the general  
          population.<4>  While research suggests most HIV-positive  
          inmates acquire HIV out of prison, transmission once in prison  
          through unprotected sex or contaminated syringes is  
          well-documented and presents an increased risk of transmitting  
          HIV to individuals out in the community once inmates are  
          released. 

          Despite laws or policies expressly prohibiting sexual activity  
          while in state custody, studies show that both consensual and  
          ---------------------------
          ---------------------------
          <1> CDC. (2013).  "$30,000/Year to Treat 1 California Prisoner  
          with HIV/AIDS."  
          
          <2> Under current law, inmates may be required to undergo HIV  
          testing if: (1) the inmate shows clinical signs of AIDS; (2) a  
          law enforcement employee is exposed; (3) testing is requested by  
          another inmate; or (4) a court order is issued.  High-risk  
          behaviors, such as unprotected sex, drug use, and tattooing,  
          among inmates both inside and outside of prison drastically  
          increases the likelihood of contracting HIV.
          <3> Hammett, TM.  (2006).  HIV/AIDS and Other Infectious  
          Diseases Among Correctional Inmates: Transmission Burden, and an  
          Appropriate Response.  American Journal of Public Health: 96(pp.  
          974-76).
          <4> CDC. (2012).  "HIV in Correctional Settings."  
          


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          non-consensual sex occurs in prisons with regularity.<5>   
          According to an article from the Columbia Journal of Gender and  
          Law:

              By prisoners' own direct reports and empirical studies  
              based on interviews or surveys of prisoners, many  
              inmates choose to engage in sexual activity for  
              reasons other than fear of immediate or possible  
              violence.  They have sex-again, this is by their own  
              reports-for money, drugs, food, comfort, physical  
              gratification, and love.<6>  

          3.What this Bill Would Do 

           Since 2006, the Legislature has passed three bills relating to  
          the availability of condoms in state prisons - all of which were  
          vetoed.  AB 1334 (Swanson) of 2008 and AB 1677 (Koretz) of 2006  
          would have required the CDCR to allow any nonprofit or public  
          health agency to distribute condoms to inmates.  The Governor  
          cited conflicts with Sections 286 (e) and 288 (e), which  
          prohibit sexual activity in prison, as the reason for vetoing  
          the legislation, but, in his veto message for AB 1334, he  
          authorized the CDCR to pilot a condom distribution program,  
          which is discussed in further detail in Comment 4. 

          Last year, AB 999 (Bonta) would have required the CDCR to  
          develop a five-year plan to extend the availability of condoms  
          in all California prisons.  According to the Governor's veto  
          message, "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." 

          The bill before the Committee, AB 966, would require the CDCR to  
          ---------------------------
          <5> See Footnote #3. 
          <6> Ristoph, A. (2006). Sexual Punishments. Columbia Journal of  
          Gender & Law: 15(pp139-148). 


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          develop a five-year plan to expand the availability of condoms  
          in all California prisons based on recommendations from the  
          Solano State pilot project.  Unlike last year's bill, AB 966  
          does not require plan implementation or that specific timetables  
          be met.  According to the author, this bill would provide CDCR  
          greater discretion and flexibility over program development  
          within its existing authority. 

           4.Evaluation of a Prisoner Condom Access Pilot Program Conducted  
            in One California Prison Facility  

          In his veto message of AB 1334 (Swanson of 2007), the Governor  
          directed CDCR to carry out a pilot program in one state prison  
          to assess the "risk and viability" of condom distribution.   
          Since then, a pilot program was implemented and an evaluation of  
          that program has been conducted by public health officials.  

               To accomplish the Governor's directive, we assessed  
               the pilot program that was implemented in Solano State  
               Prison, Facility II, for one year (November 5, 2008  
               through November 4, 2009).  Several agencies covered  
               all costs and volunteered their staff time and  
               expertise.  The Center for Health Justice, a nonprofit  
               organization, purchased the condom dispensing machines  
               and condoms, monitored and re-filled the dispensers  
               throughout the pilot period, and provided education  
               for staff and inmates.  Researchers from the  
               California Correctional Health Care Services (CCHCS),  
               Public Health Unit (PHU); the California Department of  
               Public Health (CDPH), Office of AIDS (OA), and the  
               Sexually Transmitted Disease (STD) Control Branch  
               provided evaluation services.<7>

          The evaluation of the pilot program stated: 

               Research Review
               ----------------------
          <7> Lucas, et al., Evaluation of a Prisoner Condom Access Pilot  
          Program Conducted in One California State Prison Facility,  
          September 2011,  
          


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               The World Health Organization and the United Nations  
               Programs on HIV/AIDS recommend that prisoners have  
               access to condoms during their incarceration and prior  
               to release.  Published evaluation studies found no  
               security problems or serious incidents involving a  
               condom, no increase in sexual activity, and that when  
               condoms are available inmates use them during sex.   
               Condoms are currently available in two prison and five  
               county jail systems in the United States and many  
               prison systems worldwide. 

               Implementation

               During December 2007 and January 2008, CDCR convened a  
               task force of internal and external stakeholders and  
               selected Solano State Prison, Facility II, for the  
               pilot project.  The Center for Health Justice (CHJ)  
               provided the condom dispensing machines, condoms, and  
               staff and inmate education.  Following implementation  
               of an exception to the contraband rule, CHJ made  
               condoms available from wall-mounted dispensers  
               throughout the pilot facility from November 5, 2008  
               through November 4, 2009.

               Evaluation

               The California Correctional Health Care Services  
               (CCHCS), Public Health Unit (PHU), in collaboration  
               with the California Department of Public Health,  
               Office of AIDS (OA), and Sexually Transmitted Diseases  
               (STD) Control Branch, evaluated the risk, feasibility,  
               and cost of providing condoms.  We reviewed Rule  
               Violation Reports for the pre-pilot and pilot periods  
               and compared the numbers and rates of incidents.   
               Program staff routinely monitored the number of  
               condoms dispensed and the operability of each  
               dispenser.  We estimated the cost of condom  
               distribution and the number of HIV infections that  
               would need to be prevented for a cost-neutral program.




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               Conclusions

               We found no evidence that providing condoms posed an  
               increased risk to safety and security or resulted in  
               injuries to staff or inmates in a general population  
               prison setting.  Providing condoms from dispensing  
               machines is feasible and of relatively low cost to  
               implement and maintain.  Providing condoms would  
               likely reduce the transmission of HIV, STDs, and  
               hepatitis in CDCR prisons, thereby reducing medical  
               costs in both CDCR and the community.  Very few HIV  
               infections (2.7 to 5.4) would need to be prevented for  
               a cost-neutral program.

               Recommendations

               A program to provide CDCR inmates access to condoms  
               should be initiated and incrementally expanded while  
               continuing to monitor the safety and acceptability of  
               the program.  Consider conducting similar pilot  
               studies when expanding the program to other prison  
               populations (e.g, with a higher security level or in a  
               mental health treatment housing unit).  Prisons should  
               locate dispensers in discreet areas and consider  
               providing condoms confidentially through medical staff  
               or in a medical clinic.  Inmate peer educators and  
               Men's and Women's Advisory Counsels, and medical,  
               public health, and custody representatives should be  
                                                                                    involved at all stages of program planning and  
               implementation.  Staff and inmates should receive  
               information describing findings from the current study  
               demonstrating that safety and security were not  
               impacted by the distribution of condoms.  

           5.Condom Distribution in Prisons and Jails: Safety, Feasibility,  
            and Moral Objections 



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          In the US, prisons systems in Mississippi and Vermont and urban  
          jail systems in the District of Columbia, Los Angeles, San  
          Francisco, New York City, and Philadelphia permit condom  
          distribution to inmates.  While Mississippi limits condoms to  
          conjugal visits to prevent unwanted pregnancies, Vermont allows  
          inmates to request and receive condoms through its prison health  
          centers to prevent the spread of HIV and other STIs.  Since  
          1989, San Francisco has made condoms available to inmates who  
          voluntarily participate in an HIV/AIDS prevention program.<8> In  
          Los Angeles, county jails partner with a non-profit organization  
          that provides condoms to inmates in a segregated unit that  
          houses inmates self-identifying as gay, bisexual, or  
          transgender.  An analysis of the L.A. Jail condom distribution  
          program estimated that the program averted 25 percent of HIV  
          transmissions among inmates in the segregated unit and yielded  
          low-term cost-savings.<9> 
           
           Concerns over the safety risks, practicality, and moral  
          implications of condom provision in prisons often surround this  
          discussion.  A major objection stems from the potential misuse  
          of condoms as weapons or to conceal narcotics which may  
          consequently threaten the safety of correctional officers and  
          inmates or result in increased drug use.  Possibly causing  
          significant disruptions to the prison routine, condom  
          distribution may also be infeasible, and the distribution method  
          would need to be carefully and thoughtfully developed and  
          implemented for successful distribution.  Fears that condoms  
          will encourage or appear to sanction sex in prison, rape, or  
          homosexuality have also been expressed. 

          A 2007 World Health Organization (WHO) report entitled  
          Effectiveness of Interventions to Manage HIV in Prisons provides  
          a comprehensive review of condom provision in prisons and offers  
          insights into the feasibility, safety risks, and moral  
          implications through prison studies. The report stated: 
          ---------------------------
          <8> Harm Reduction in Prison Coalition.<  
          http://aidschicago.org/correctional%20condom%20distribution.pdf>
          <9> Leibowitz, et al. (2013). Condom Distribution in Jail to  
          Prevent HIV Infection. AIDS Behavior: 17(pp.2695-2702), <  
          http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3786088/>


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               Feasibility and acceptability
               
               Research has consistently found that it is feasible to  
               make condoms available in prison, that condom  
               distribution programmes are unobtrusive to the prison  
               routine, and that existing models of condom  
               distribution could easily be replicated in other  
               prisons in which condoms are not yet made available.   
               Studies in Australia and the United States have found  
               that condom distribution is acceptable to prisoners,  
               showing that the majority of prisoners support the  
               provision of condoms.  Studies in Australia, Canada,  
               and the United States also found that a majority of  
               prison staff accept condom distribution, with support  
               being higher among senior correctional staff than  
               among correctional officers. 

               Absence of negative consequences
               
               No prison system allowing condoms has reversed their  
               policies, and none has reported security problems or  
               other serious negative consequences.  A study  
               undertaken in the United States found condom access to  
               "constitute no threat to security or operations."  In  
               Australia, two studies - including an evaluation of  
               the long-term effects of provision of condoms - found  
               no evidence of serious adverse consequences of  
               distributing condoms and dental dams to prisoners. 


               Minor incidents of misuse such as using condoms for  
               water balloons, water fights and littering were  
               recorded but these did not compromise prison safety or  
               security.  One study reported that no incidents of  
               drug concealment were recorded.  The other study  
               reported that 29% of male prisoners said that they  
               were aware of condoms or condom bags being used to  
               store drugs.  However, data from the New South Wales  
               prison service showed that there was no increase in  
               the proportion of prisoners using illegal drugs after  



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               condoms were made available.  The researchers  
               highlighted that "prisoners would undoubtedly find any  
               means of storing contraband even if condoms were  
               unavailable" and emphasized that "in a controlled and  
               resource-poor setting, inmates display great  
               inventiveness in employing any new resources for a  
               variety of purposes, and safe sex kits are no  
               exception."

               Fears about the provision of condoms leading to more  
               consensual and non-consensual sex were not realised.   
               Studies in both Australia and the United States found  
               that access to condoms has not resulted in an increase  
               in sexual activity.  Indeed, Yap et al. (2007) found a  
               statistically significant fall in the percentage of  
               men reporting both consensual and non-consensual sex  
               with other prisoners in the five years since condom  
               distribution started.  While this decline may have  
               been due to other factors, the presence of condoms and  
               dispensing machines may have raised awareness and  
               continued to reinforce HIV prevention messages for  
               prisoners.<10> 

          Furthermore, according to the WHO, "Significantly, no system  
          where a policy of making condoms available in penal institutions  
          has been adopted has reversed the policy, and the number of  
          systems where condoms are being made available has continued to  
          grow every year."<11>   

          WILL EXPANDING CONDOM AVAILABILITY TO ALL CALIFORNIA PRISONS  
          BE FEASIBLE OR POSE SAFETY ISSUES?

          DOES NOT PROVIDING ACCESS TO CONDOMS IN PRISONS UNNECESSARILY  
          EXPOSE INMATES TO A SERIOUS HEALTH RISK? 


                                   ***************

          ---------------------------
          <10>  (some  
          citations omitted, emphasis added). 
          <11> WHO. (2001). HIV in Prisons. 










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