BILL ANALYSIS
AB 382
Page 1
GOVERNOR'S VETO
AB 382 (Ammiano)
As Amended August 17, 2009
2/3 vote
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|ASSEMBLY: |65-9 |(May 11, 2009) |SENATE: |24-14|(September 3, |
| | | | | |2009) |
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|ASSEMBLY: |65-9 |(September 9, | | | |
| | |2009) | | | |
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Original Committee Reference: PUB. S.
SUMMARY : Requires the California Department of Corrections and
Rehabilitation (CDCR) to consider specified risk factors,
including the sexual orientation and gender identity of the
inmate or ward as specified, when classifying inmates in order
to prevent sexual violence.
The Senate amendments :
1)Add legislative findings and declarations that CDCR inmates
and wards may be at heightened risk of sexual violence and
abuse based on certain risk factors, including being young,
lesbian, gay, bisexual, or transgender; not having served a
prior term of commitment; or having a history of mental
illness.
2)State that it is the intent of the Legislature to ensure that
CDCR recognizes that wards or inmates may be at increased risk
based upon these factors; and provides vulnerable inmates or
wards who are determined to be at risk with heightened
protection in classification and housing decisions, without
automatically subjecting them to highly restrictive or
isolated settings or denying them access to programs and
services.
AB 382
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3)Add to the list of relevant considerations in inmate housing
and classification procedures self-reported safety concerns
related to sexual orientation and gender identity of the
inmate or ward.
4)Provide that CDCR shall not require any inmate or ward to
disclose his or her sexual orientation or gender identity at
any time, and state that a disclosure or report shall not be
discredited solely because it was not provided at an earlier
point in time.
5)Prohibit CDCR from disciplining or otherwise punishing an
inmate or ward for failing to disclose or report his or her
sexual orientation or gender identity during all or part of
his or her term of commitment.
6)State that nothing in this section shall be construed to
require or justify expansion or construction of CDCR
facilities.
7)Make non-substantive, technical changes.
EXISTING LAW :
1)Establishes the Prison Rape Elimination Act to establish a
zero-tolerance standard for the incidence of prison rape in
prisons in the United States; develops and implements national
standards for the detection, prevention, reduction, and
punishment of prison rape; increases the available data and
information on the incidence of prison rape; increases the
accountability of prison officials who fail to detect,
prevent, reduce, and punish prison rape; protects the Eighth
Amendment rights of federal, state, and local prisoners;
increases the efficiency and effectiveness of Federal
expenditures; and, reduces the costs that prison rape imposes
on interstate commerce.
2)Provides the CDCR inmate classification and housing assignment
procedures shall take into account risk factors that can lead
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to inmates and wards becoming the target of sexual
victimization or of being sexually aggressive toward others.
Relevant considerations include: age, whether the offender is
a violent or non-violent offender, and whether the inmate has
a history of mental illness.
AS PASSED BY THE ASSEMBLY , this bill required CDCR to consider
sexual orientation and gender identity when classifying inmates
in order to prevent sexual violence.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, "Recent attention has
focused on the mounting crisis of overcrowding and violence in
California prisons. The condition of these facilities has been
the subject of both litigation and special hearings of the
California Legislature, including a December 2008 informational
meeting on issues facing lesbian, gay, bisexual, or transgender
(LGBT) inmates in California prisons.
"The landmark case of Farrell v. Allen, which was brought under
state law as a taxpayer action to stop inhumane and illegal
conditions of confinement, spurred a comprehensive plan to
improve California's prison system. Pursuant to a consent
decree approved by a judge in November 2004, state officials
have agreed to remedy serious ongoing problems in the state's
correctional facilities, including developing a system to
separate vulnerable prisoners from dangerous ones and a plan to
reduce violence.
"Sexual violence against prisoners who are LGBT is a recurring
problem that must be addressed by any reforms. According to a
recent study from the CDCR, 67% of LGBT inmates report being
sexually assaulted by another inmate, a rate 15 times higher
than the overall prison population.
"One of the most important tools available to corrections
officials to prevent sexual assault is the use of appropriate
prisoner classification and housing protocols. While anyone can
be a victim of sexual violence behind bars, typical victims are
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young, non-violent, or first time offenders. LGBT prisoners or
those perceived to be LGBT are also exceptionally vulnerable to
violence."
Please see the policy committee for a full discussion of this
bill.
GOVERNOR'S VETO MESSAGE :
"This bill would add, among other provisions, the sexual
orientation and gender identity of an inmate or ward to the list
of risk factors considered as part of CDCR's inmate and ward
classification and housing assignment procedures. This bill is
unnecessary because CDCR already considers these factors when
determining where to house inmates."
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744
FN: 0003353