BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
9
9
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AB 999 (Bonta)
As Amended May 24, 2013
Hearing date: June 25, 2013
Penal Code
SM:mc
CONDOMS IN PRISON
HISTORY
Source: Author
Prior Legislation: AB 1334 (Swanson) - 2008, vetoed
AB 1677 (Koretz) - 2006, vetoed
Support: AIDS Healthcare Foundation; AIDS Project Los Angeles;
Allen Temple Health & Social Services Ministries;
American Civil Liberties Union of California;
California Academy of Preventive Medicine; California
Prevention and Education Project; L.A. Gay and Lesbian
Center; Legal Services for Prisoners with Children;
Taxpayers for Improving Public Safety; Women Organized
to Respond to Life Threatening Diseases; California
Public Defenders Association
Opposition:None known
Assembly Floor Vote: Ayes 48 - Noes 27
KEY ISSUES
SHOULD THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND
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REHABILITATION BE REQUIRED TO DEVELOP A FIVE-YEAR PLAN TO EXPAND
THE AVAILABILITY OF CONDOMS IN ALL CALIFORNIA PRISONS, AS
SPECIFIED?
(CONTINUED)
SHOULD, BEGINNING JANUARY 1, 2015, NO LESS THAN FIVE PRISONS, AS
DETERMINED BY THE DEPARTMENT, BE INCORPORATED INTO THE PROGRAM EACH
YEAR, WITH THE FINAL YEAR YIELDING A COMPREHENSIVE PLAN THAT
INCLUDES EVERY PRISON IN THE STATE?
SHOULD ALL NONADMINISTRATIVE COSTS OF THE PROGRAM, INCLUDING THE
DISPENSERS AND CONDOMS, BE PAID FOR THROUGH DONATIONS AND SHOULD THE
IMPLEMENTATION OF THIS PROGRAM BE CONTINGENT UPON THE RECEIPT OF
SUFFICIENT DONATIONS BY THE DEPARTMENT?
PURPOSE
The purpose of this bill is to (1) make specified findings
regarding the use of condoms in prison to prevent the spread of
HIV/AIDS; (2) require the Department of Corrections and
Rehabilitation to develop a five-year plan to expand the
availability of condoms in all California prisons, as specified;
(3) require that, beginning January 1, 2015, no less than five
prisons, as determined by the Department, be incorporated into
the program each year, with the final year yielding a
comprehensive plan that includes every prison in the state; (4)
require that the Department of Corrections and Rehabilitation,
in developing the plan, consider specified recommendations; and
(5) provide that all nonadministrative costs of the program,
including the dispensers and condoms, shall be paid for through
donations and the implementation of this program is contingent
upon the receipt of sufficient donations by the Department.
Under existing law , the Secretary of the Department of
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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.)
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.
Provides that any person who participates in an act of
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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).)
This bill would make the following findings:
AB 1334 of the 2007-08 Regular Session would have
required the Department of Corrections and Rehabilitation
to allow nonprofits and health agencies to enter department
institutions to provide sexual barrier protection devices,
including condoms, to state prisoners.
In his October 14, 2007, veto message for AB 1334,
Governor Arnold Schwarzenegger noted that, although it is
illegal to engage in sexual activity while incarcerated,
providing access to condoms is "consistent with the need to
improve our prison healthcare system and overall public
health."
The veto message directed the department to determine
the risk and viability of such a program by identifying one
state prison facility for the purpose of allowing
nonprofits and health agencies to distribute sexual barrier
devices.
To accomplish the Governor's directive, a pilot program
was implemented in Solano State Prison, Facility II, for
one year, from November 5, 2008, through November 4, 2009.
Several agencies covered all costs for the program and
volunteered their staff time and expertise.
The Center for Health Justice, a nonprofit organization,
purchased the condom dispensing machines and condoms,
monitored and refilled the dispensers throughout the pilot
period, and provided education for staff and inmates.
Researchers from the Division of Correctional Health
Care Services, Public Health Unit, and the State Department
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of Public Health, Office of AIDS, and the Sexually
Transmitted Diseases Control Branch, provided evaluation
services and finalized their conclusions in a September
2011 report entitled: Evaluation of a Prisoner Condom
Access Pilot Program Conducted in One California State
Prison Facility.
The report concluded that there was no evidence that the
availability of condoms created an increased risk of
breaches of safety or security, or resulted in injury to
staff or inmates, in a general population prison facility
setting.
The report also stated that its findings may not be
generalizable to other settings, for example, because of
higher security or in a setting dedicated to inmates with
mental health problems. Additional pilot studies may be
warranted in these other settings.
The report concluded that providing condoms from
dispensing machines similar to those used in the pilot
program is feasible and of relatively low cost to implement
and maintain.
Estimates of the in-prison HIV and STD transmission
rates are not available. However, given the relatively low
cost of providing condoms relative to the cost of treating
HIV, and that very few HIV infections would need to be
prevented to cover the costs of the program, it is likely
that providing condoms could reduce department medical
costs.
This bill would:
Require CDCR, based on the recommendations 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," and in
light of the successful pilot project conducted at
California State Prison, Solano, develop a five-year plan
to expand the availability of condoms in all California
prisons.
Require that, beginning January 1, 2015, no less than
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five prisons, as determined by the department, be
incorporated into the program each year, with the final
year yielding a comprehensive plan that includes every
prison in the state.
Require that CDCR, in developing the plan, consider all
of the following recommendations that were made in the
report:
o Initiate and incrementally expand a program to
provide inmates with access to condoms while
continuing to monitor the safety and acceptability of
the program.
o Consider additional pilot studies in settings
that may pose a serious health or safety risk, for
example, higher security facilities or housing for
inmates with serious mental health problems.
o Mount dispensers in discreet locations to
provide confidential access and increase accessibility
by minimizing inoperability due to vandalism.
Dispensers with solid steel construction and protected
locks are available that are more tamper resistant
than those used in the pilot study.
o Consider making condoms available
confidentially upon request during a medical or mental
health visit, in addition to dispensing machines.
o Provide information to staff and inmates
describing findings from the current study
demonstrating that safety and security were not
impacted by the distribution of condoms.
o Include inmate peer educators, inmates', men's
and women's advisory counsels, and medical, public
health, and custody staff in local institutional
condom program planning and implementation.
This bill provides that all nonadministrative costs of the
program, including the dispensers and condoms, shall be paid for
through donations and the implementation of this program is
contingent upon the receipt of sufficient donations by the
department.
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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
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,
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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
According to the author:
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The Prisoner Protections for Family and Community
Health Act (AB 999) is an inexpensive, life-saving
measure that will protect prisoners from HIV/AIDS, and
thereby protect the families and communities to which
they will eventually be released.
Notwithstanding the supposed ban on sexual activity in
prison, it is no secret that inmates commonly engage
in sexual activity. Some of the activity is
consensual; some of it is forcible. But whatever the
genesis of the act, prisoners with HIV/AIDS are
spreading the disease to others in the institution and
then to additional partners upon release. This is a
vicious cycle of disease that can be immediately
improved by introducing condoms in prisons.
The HIV infection rate in prison is documented to be
five times higher than in the general population.
Most experts believe the actual infection rate to be
far higher than what is documented. By not
distributing condoms in our prisons, we are not only
ignoring the realities of prison, but we are
abandoning the predominantly low-income and minority
populations outside of prison who will eventually have
the most contact with these former inmates.
And if the moral principles of keeping our low-income
and minority populations safe from deadly disease
isn't sufficient enough of a reason to make condoms
available in prison, the financial considerations are
also persuasive. 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 the patient, a single
infection can cost the state hundreds of thousands of
dollars.
By distributing condoms in prison, our state could not
only save lives, but it could save a fortune in
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HIV/AIDS treatment costs.
Sex and HIV/AIDS is a fact of life in prison. Our
state must stop ignoring this unsettling and sometimes
disturbing subject and realize that the long-term
benefits to the state budget and the health of future
generations are worth this small inconvenience on
CDCR.
Other bills that have attempted to address the issue
took a broader approach - requiring full
implementation upon enactment. AB 999 takes an
incremental approach to the problem by using the
practical results of the successful Solano State pilot
project to guide a more expansive distribution. While
AB 999 requires CDCR to develop a five-year plan to
offer condoms in all California prisons, the bill give
the department discretion to do so within the
parameters of the recommendations in the September
2011 report entitled "Evaluation of a Prisoner Condom
Access Pilot Program Conducted in One California
Prison Facility."
It is my intention that the program is implemented in
stages, with the insight of CDCR and the lessons
learned from the Solano pilot guiding the process.
2. HIV/AIDS in CDCR
According to CDCR's data, an average of 1,240 inmates are
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. Studies
attribute this high rate to intravenous drug use prior to
incarceration. Due to the difficulty in conducting studies and
limited availability of information, the causes of infection for
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inmates after incarceration are unknown. However, these studies
estimate that sexuality activity is the leading cause for HIV
infection in prison.
3. Evaluation of a Prisoner Condom Access Pilot Program Conducted
in One California Prison Facility
In his veto message of AB 1334 (Swanson), of the 2007-08
legislative session, 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." (Lucas, et al., Evaluation of a Prisoner
Condom Access Pilot Program Conducted in One California State
Prison Facility, September 2011,
http://www.cdph.ca.gov/programs/std/Documents/SBD%20Pilot_Final%2
0Report_122210-CDPH-CCHCS_September2011.pdf.)
The evaluation of the pilot program stated:
Research Review
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
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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.
Conclusions
We found no evidence that providing condoms posed an
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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. (Id.)
4. 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:
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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
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:
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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)
5. Article by Former San Francisco Sheriff
An article published in the San Francisco Chronicle on Tuesday,
April 19, 2005, by former San Francisco Sheriff Michael
Hennessey includes the following:
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
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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?
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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
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
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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,
on both sides of the bars. ("Health-positive Bill for
Prisoners (And Those Who Love Them), San Francisco
Chronicle, April 18, 2005.")
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