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