BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 1334 (Swanson) 4
As Introduced February 23, 2007
Hearing date: July 3, 2007
Penal Code
SM:mc
CONDOM DISTRIBUTION TO STATE AND LOCAL PRISONERS
HISTORY
Source: Conference of Delegates of California Bar Associations;
AIDS Project Los Angeles; Southern California HIV
Advocacy Coalition
Prior Legislation: AB 1677 (Koretz) - vetoed, 2006
Support: AIDS Services Foundation Orange County; AIDS Healthcare
Foundation; AltaMed Health Services; American Academy
of HIV Medicine; American Civil Liberties Union;
American College of Obstetricians and Gynecologists,
District IX (California); BIENESTAR Human Services,
Inc.; California Commission on the Status of Women;
California State Conference of the National Association
for the Advancement of Colored People; City of Los
Angeles; Friends Committee on Legislation; Health
Officers Association of California; Lambda Letters
Project; Los Angeles County HIV Drug and Alcohol Task
Force; Planned Parenthood Shasta-Diablo; Planned
Parenthood Affiliates of California; San Francisco AIDS
Foundation; Sheriff of San Francisco; Alameda County
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Board of Supervisors; California Medical Association
Opposition:California Correctional Supervisors Organization;
California Family Council
Assembly Floor Vote: Ayes 41 - Noes 34
KEY ISSUE
SHOULD THE DIRECTOR OF CORRECTIONS BE REQUIRED TO ALLOW ANY
NONPROFIT OR PUBLIC HEALTH CARE AGENCY TO DISTRIBUTE SEXUAL BARRIER
PROTECTION DEVICES SUCH AS CONDOMS AND DENTAL DAMS TO INMATES, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to require that the Director of the
Department of Corrections and Rehabilitation allow any nonprofit
or public health care agency to distribute sexual barrier
protection devices such as condoms and dental dams to inmates,
as specified.
Under existing law , the Secretary of the Department of
Corrections and Rehabilitation ("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:
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 7500.)
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Prohibits all sex acts, illegal and consensual, between
inmates. (Title 15 California Code of Regulations 3007.)
Requires CDCR, contingent on the availability of
funding, to provide HIV/AIDS health and prevention
information to inmates. (Penal Code 5008.1(a).)
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 does the following:
Requires CDCR to allow any non-profit or public health
agency to distribute sexual barrier devices such as condoms
and dental dams to inmates.
Establishes that the distribution of those devices is
not a crime and does not encourage sexual acts between
inmates.
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Provides that any agency that distributes those devices
shall be subject to all relevant laws and regulations
regarding visitors to correctional facilities.
Provides that possession of those devices cannot be used
as evidence of illegal activity for purposes of
administrative sanctions.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
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inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill does not appear to aggravate the prison and jail
overcrowding crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
<5> Primer, supra, fn. 4.
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This bill seeks to mitigate the spread of HIV/AIDS in
the community at large by halting it at one of its
most common sources: prisons and jails. The Inmate
and Community Public Health and Safety Act will allow
for non-profit or health agencies to distribute sexual
barrier devices and distribution of those devices
shall not be a crime. This bill would also state that
possession of those devices shall not be used as
evidence of illegal activity for the purposes of
administrative sanctions.
In 2006, California African-Americans accounted for 18
percent of all HIV/AIDS cases, yet they constituted
less than 7 percent of the population. While Latinos
in California make up 23 percent of all HIV/AIDS
reported cases, they make up less than 33 percent of
the population. The impact is felt greater by
African-American and Latino women, who combined for 62
percent 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 69 percent of
all AIDS cases and 72 percent of all HIV cases in
California. These figures can be attributed to a high
number of parolees entering the aforementioned
counties. According to the California Department of
Corrections and Rehabilitation, Los Angeles and San
Diego make up 37 percent of parolee destinations.
2. Background - AIDS in Minority Communities
Background provided by the author states:
According to the National Institute of Justice, HIV
infection rates in California's prison system are 8-10
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times higher that the state's population.
According to the California Department of Corrections
and Rehabilitation (CDCR), African-Americans and
Latinos make up 87 percent of the total prison
population in California.
In 2003, the average length of stay in California's
prison was 25.1 months.
California's prison recidivism rate is approximately
70 percent, with many inmates returning to prison for
short periods of time (averaging 5.5 months) before
they are returned to vulnerable communities. Most
inmates have sex within the first 24 hours after their
release.
The California Department of Health Services states
that 46 percent of California women are infected with
HIV/AIDS through sex with an HIV-infected male.
African-American women were over 3 times and Latino
women were 1.3 times more likely to test positive for
HIV, than white women.
* * * * * * * *
In California, San Francisco and Los Angeles Counties
have already instituted a form of sexual barrier
distribution in their jail systems. In addition,
prison systems in Vermont and Mississippi have also
adopted policies to make sexual barrier devices
available.
In Canada and Washington, D.C. (where sexual barrier
devices are already being distributed), 80-90 percent
of correctional officers who were surveyed reported no
public safety or behavioral problems with sexual
barrier devices in prison. Those who did cite
problems reported issues not related to safety and
security. The California Correctional and Peace
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Officers Association (CCPOA) have taken a neutral
position on AB 1334.
Strong support also exists among the public. In 2005,
the California Department of Health Services and UC
Berkeley conducted an opinion survey that found that
68 percent of Californians support sexual barrier
devices in prisons and jails.
3. What Do Other Countries Do?
In 2001, the World Health Organization published a comprehensive
collection of articles by public health experts entitled, "HIV
in Prison," which includes the following information on how
condom distribution has become almost universal in European
prisons to combat the spread of AIDS and this policy is being
adopted by many countries around the world:
Recognizing the fact that sexual activity does occur
and cannot be stopped in penal institutions, and given
the high risk of disease transmission that it carries,
many prison authorities in western Europe made
condoms, together with lubricant, readily available to
prisoners. In a number of surveys undertaken in
Europe, the proportion of prison systems that reported
that they had made condoms available rose from 53% in
1989 to 75% in 1992 and 81% in 1997. The most recent
survey showed that condoms were available in all but
four penal systems. 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. For
example: in Australia, the New South Wales government
has decided to make condoms available, and they have
also been made available in other Australian systems.
In most of Canada's penal institutions condoms have
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been available since 1992. After some initial
opposition, the decision to make them available has
been well accepted and has not created any problems.
In most prisons, condoms, dental dams and water-based
lubricant are easily and discreetly available at
various places in the institution, and without inmates
having to ask for them.
Studies have shown that if prisoners have to ask the
health care services for condoms, few will do so
because they do not want to disclose that they engage
in same-sex sexual activity. Making condoms available
is therefore not enough; they need to be easily and
discreetly accessible.
The Joint United Nations Programme on HIV/AIDS
(UNAIDS) also "believes it vital that condoms,
together with lubricant, should be readily available
to prisoners." UNAIDS concludes:
Unfortunately, there still exists a strong
current of denial in many places about
male-to-male sex (especially in prison) and
a corresponding refusal to do anything which
might be seen as condoning it. These
attitudes will have to change if societies
want to see the rate of HIV infection -
inside prison and outside of it - decrease.
(HIV in Prison, pages 55, 56, World Health Organization, 2005.
http://www.euro.who.int/document/e77016.pdf )
4.Article by San Francisco Sheriff
An article published in the San Francisco Chronicle on Tuesday,
April 19, 2005, by San Francisco Sheriff Michael Hennessey
includes the following:
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The San Francisco Sheriff's Department has sponsored
AIDS prevention education, including condom
distribution, for 18 years. Over that time,
public-health workers have distributed an average of
10,000 condoms a year to prisoners who request them
after participating in an AIDS awareness program. We
are among a handful of county jails and prison systems
in America to have such a program. Our experience, and
that of the other significant correctional systems that
have such programs, should serve as a model for
recalcitrant jail and prison administrators, but it has
not.
Everyone in the jail business has been fully educated
about AIDS, how it is transmitted and what steps should
be taken to prevent exposure. Jails and prisons are a
natural place to provide AIDS prevention programs. The
majority of prisoners are at extremely high risk of
contracting AIDS. They are or have been drug users,
including a high percentage of intravenous users; many
have engaged in sex for money; most are from
lower-income and minority communities where AIDS
transmission remains high. And, of course, no one
really likes to talk about it, but sex happens in jails
and prisons. After all, these are prisoners, criminals
-- so why should we care?
The government has a legal obligation to protect the
prisoners it incarcerates from harm and to prevent
unhealthy conditions. More compelling still is that 90
percent of all prisoners ultimately get out of jail.
They return to our communities, resume relations with
spouses and lovers, and use taxpayer-funded
public-health services to treat catastrophic health
conditions such as AIDS.
The California Department of Health Services reports
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that 87 percent of Californians believe giving condoms
to prisoners is effective at preventing AIDS. Why,
then, are prison and jail officials so reluctant to
make condoms available as part of a comprehensive AIDS
education program? Let's examine the usual arguments:
-- "Condoms will encourage or appear to sanction sex in
prison." Come on -- it already happens; we all know
it. As corrections administrators, we should do
everything we can to prevent sex in custody, but we
shouldn't turn a blind eye to the reality that it
occurs.
-- "Condoms will lead to rape in jail." I have yet to
meet a prison rapist who is courteous enough to worry
about safe sex.
-- "Condoms will be used to smuggle drugs." The prison
and jail systems -- including such diverse systems as
San Francisco, New York City, the states of Vermont and
Mississippi, Canada and most of the European Union --
that have allowed condoms for decades have not
experienced this security problem. The smuggling risk
with condoms is far less than with visits where
physical touch is permitted, which occurs in almost
every jail and prison system, or conjugal visiting, or
any number of programs that invite community volunteers
into the facilities.
-- "If we don't acknowledge it, we bear no
responsibility for its existence or its consequences."
Too many jail and prison systems exhibit a general bias
against homosexual conduct and fear any suggestion that
prisoners are having sex behind bars. But turning a
blind eye to the significant public-health risk
presented by unprotected sex has tragic consequences,
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on both sides of the bars.
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("Health-positive Bill for Prisoners (And Those Who Love Them),
San Francisco Chronicle, April 18, 2005. ")
5. Argument in Support
The American College of Obstetricians and Gynecologists states:
AB 1334 allows sexual barrier devices such as condoms
to be distributed in prisons, and states possession of
a condom in prison will not be evidence of illegal
activity. This is particularly important due to the
health impact on women. Women are being infected when
their partners return from incarceration infected.
Particularly hard hit amongst women are
African-Americans and Latinas.
We need to acknowledge the reality of sexual activity
in prison and act to prevent HIV infections that are
spread through the activity. ACOG-IX (California)
supports the recognition that this means condoms
should be available to incarcerated individuals.
AIDS Healthcare Foundation states:
As the largest HIV specialized primary care provider
in the nation with the largest prevention and testing
program in California and an HIV testing program in
L.A. County jails, AHF recognizes correctional
facilities as one of many fronts in the battle against
HIV and AIDS. This measure authorizing the director
of the state department of Corrections and
Rehabilitation to allow county health departments and
health care organizations to distribute prophylactics
and dental dams to the incarcerated is a major step in
the fight against HIV transmission not just among
prison inmates but the communities to which they are
paroled. As everyone is aware statistics show that
the percentage of new cases of HIV among Latinas and
African-American women exceed their percentage in the
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general population. Disproportionate representation
of communities of color in the inmate population and
the higher rates of HIV infection make this proposal
an essential tool in implementing a good public health
policy regarding HIV and other sexually transmitted
diseases.
6. Arguments in Opposition
The California Correctional Supervisors Organization states:
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
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.
The California Family Council states:
If existing laws have been created for the purposes of
protecting inmates, such as identifying sodomy as a
crime, then distributing condoms to inmates is a
precise contradiction! Stating within the bill that
the distribution of condoms shall not "be deemed to
encourage sexual acts" is ridiculous! Sexual activity
between inmates is prevalent - and oftentimes not
consensual. On principle, existing laws must be
enforced, rather than turning a blind eye by
supporting sexual barrier protection devices!
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