BILL ANALYSIS
AB 1334
Page 1
Date of Hearing: April 10, 2007
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1334 (Swanson) - As Introduced: February 23, 2007
SUMMARY : Enacts the "Inmate and Community Public Health and
Safety Act", which requires the Secretary of the California
Department of Corrections and Rehabilitation (CDCR) to allow any
non-profit or health care agency to distribute sexual barrier
protection devices. Specifically, this bill :
1)Allows for the distribution of sexual barrier protection
devices despite Penal Code Section 286(e).
2)Allows distribution of sexual barrier protection devices
despite Penal Code Section 288a(e).
3)Allows the Secretary of the CDCR to distribute sexual barrier
protection devices such as condoms and dental dams to inmates.
4)Makes agencies that distribute condoms and dental dams to
inmates subject to all relevant laws and regulations regarding
visitors to correctional facilities.
5)Provides that distribution of condoms and dental dams shall
not be considered a crime nor shall it be deemed to encourage
sexual acts between inmates.
6)States that possession of condoms and dental dams will not be
used as evidence of illegal activity for purposes of
administrative sanctions.
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. [Penal Code Section 286(e).]
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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. [Penal Code Section 288a(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. (Penal Code
Section 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.
[Penal Code Section 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
chief medical officer will make the determination whether to
require the testing. (Penal Code Section 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. (Penal Code Section 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. [Penal Code Section 7501(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "We are facing a
community public health problem of epidemic proportions and we
must do everything that is plausible to solve it. The
alarming rate of HIV in the African-American community among
AB 1334
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women is unacceptable and demands more than lip service. We
need practical solutions and less rhetoric."
2)Background : According to information provided by the author,
"The current law does not have the provision to allow for
distribution of sexual barrier devices in California State
prisons. This bill allows for non-profit and health
organizations to distribute sexual barrier devices in the
state prisons to counteract the high HIV/AIDS infections in
our prisons and communities.
"The purpose of this bill is to help reduce the spread of
HIV/AIDS in the African-American and Latino communities. In
2006, California African-Americans accounted for 18% of all
HIV/AIDS cases; yet, they constituted less than 7% of the
population. While Latinos in California make up 23% of all
HIV/AIDS reported cases, but make up less than 33% of the
population. The impact is felt greater by African-American
and Latino women. They combined for 62% of all HIV/AIDS cases
in California. The proportion of women diagnosed with AIDS has
increased steadily over the last 20 years.
"HIV/AIDS is also having a devastating impact on our cities and
counties. Los Angeles, San Francisco, San Diego, and Alameda
Counties account for 59% of all AIDS cases and 72% of all HIV
cases in California. The reason that these numbers are so
alarming is because these counties are receiving a high number
of parolees from California state prisons. According to CDCR,
Los Angeles and San Diego make up 37% of parolee destinations.
The HIV/AIDS epidemic is having a drastic impact on the future
generations.
"In 2002, HIV/AIDS was the leading cause of death among
African-American women ages 25-34, the third leading cause of
death for African-American women ages 35-44 and the fourth
leading cause of death for African American women ages 45-54
and Latinas ages 35-44. These statistics show that mothers,
aunts, and grandmothers are not around to impart the strength
that our kids need today nor the wisdom that they need for
tomorrow. A whole generation is being affected when 83% of
females diagnosed with AIDS are women of childbearing age.
"The passage of this bill will help reduce the spread of HIV
among the African-American and Latino general and prison
populations."
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3)Governor's Veto Message on AB 1677 (Koretz) : AB 1677
(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."
4)HIV/AIDS in CDCR : According to CDCR's most recent data, there
is an average of 1,240 inmates 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 sexuality activity is the leading cause for HIV infection
in prison.
5)Problems with Condom Distribution : According to the background
information provided by the author, a fear of 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.
6)Moral Objection to Condom Distribution : According to the
background information provided by the author, the chief
complaint among inmates and correctional officers for condom
distribution in 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
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inmates and the public at large outweigh the moral objections
of condom distribution?
7)Arguments in Support : The AIDS Healthcare Foundation states,
"Sex occurs frequently in state prisons and unprotected sexual
activity between inmates substantially raises the risk that
HIV will be spread within the prison population. Moreover, t
his transmission path does not stop at inmates. Most inmates
return to society (the average commitment is 25 months) and
unknowingly expose their wives and partners to HIV.
"In recent years, the AIDS epidemic has begun to explode among
Latino and African American women, where new infection rates
far exceed their percentage of the population. There is no
doubt that HIV+ men returning to their homes after being
paroled from prison is an unguarded path for HIV transmission.
Because the expose occurs without the knowledge of the
partner (and perhaps the paroled inmate), it contributes to
the ever rising epidemic among women of color.
"It has been argued that sex in prisons is illegal so making
condoms available to inmates condones an illegal activity. If
CDCR was successful in keeping sexual activity from occurring,
then that argument might be valid. However, sexual activity
is widespread in prisons. Therefore, public health and inmate
health must trump a law that is not being successfully
enforced anyway.
"Further, security concerns about condoms in prison have been
raised historically to defeat this proposal. However, a
number of studies have been conducted that refute those
assertions. Prison systems in Canada, Vermont and Mississippi
have instituted condom distribution programs and have found
that security has not been compromised. In a Canadian study,
the authors found that there were no security problems with
the federal system's condom availability program."
8)Arguments in Opposition : The California Correctional
Supervisors Organization (CCSO) states that despite the fact
that ". . . this bill states that the distribution of sexual
barrier protection devices shall not be deemed to encourage
sexual acts between inmates, a prudent person would believe
the opposite. However, CCSO's main concern is the security
problems that these devices will enhance. A popular way to
smuggle illegal drugs from one place to another in the
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institutions are in balloons that are secreted in the rectums
of inmates. Fortunately, balloons are hard to get, but to
supply these devices would solve the drug smugglers problems
and create security problems for the prisons. If the inmates
would abstain from illegal sex within the prisons, there would
be no health concerns."
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Project Los Angeles (Co-Sponsor)
Conference of Delegates of California Bar Associates
(Co-Sponsor)
Southern California HIV Advocacy Coalition (Co-Sponsor)
AIDS Healthcare Foundation
AIDS Services Foundation, Orange County
Altamed Health Services
American College of Obstetricians and Gynecologists, District IX
American Federation of State, County, and Municipal
Employees, AFL-CIO
Bienestar Human Services, Inc.
California Commission on the Status of Women
California Medical Association
Center for Health Justice
Drug Policy Alliance Project
Friends Committee on Legislation
Forensic AIDS Project
National Association for the Advancement of Colored People
Planned Parenthood Affiliates of California
San Francisco AIDS Foundation
Taxpayers for Improving Public Safety
Opposition
California Correctional Supervisors Organization
California Family Council
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744