BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1135 (Jackson)
As Amended: March 24, 2014
Hearing date: April 29, 2014
Penal Code
JRD:sl
INMATES:
STERILIZATION
HISTORY
Source: Justice Now
Prior Legislation: None
Support: ACCESS Women's Health Justice; ACLU of California;
All Of Us Or None; Center on Reproductive Rights and
Justice at UC Berkeley School of Law; Black and Pink
San Diego; California Attorneys for Criminal Justice;
California Catholic Conference of Bishops; California
Coalition for Women Prisoners; California Correctional
Health Care Services; California Partnership to End
Domestic Violence; Californians United for a
Responsible Budget; Critical Resistance; Friends
Committee on Legislation of California; Justice Now;
Legal Services for Prisoners with Children; National
Asian Pacific American Women's Forum; National
Association of Social Workers; California National
Organization for Women; Planned Parenthood of
Affiliates of California; Reconstruction Incorporation;
Sister Strong; Women with a Vision; Women's Foundation;
Women's Fightback Network; Women's Health Specialists;
5 individuals
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Opposition:American Congress of Obstetricians and Gynecologists
(Oppose unless amended); Taxpayers for Improving Public
Safety.
Senate Health Committee Vote: Ayes 9 - Noes 0
KEY ISSUE
SHOULD STERILIZATION BE PROHIBITED IN CALIFORNIA DETENTION
FACILITIES, EXCEPT AS SPECIFIED?
PURPOSE
The purpose of this legislation is to prohibit sterilization,
with limited exceptions, of an individual under the control of
the California Department of Corrections and Rehabilitation or a
county and imprisoned in the state prison or a reentry facility,
community correctional facility, county jail, or any other
institution in which an individual is involuntarily confined or
detained under a civil or criminal statute.
Existing law makes it unlawful to use in the prisons, any cruel,
corporal or unusual punishment or to inflict any treatment or
allow any lack of care whatever which would injur[e] or impair
the health of the prisoner, inmate or person confined; and
punishment by the use of the strait jacket, gag, thumb-screw,
shower-bath or the tricing up of prisoners, inmates or persons
confined is hereby prohibited. Any person who violates the
provisions of this section or who aids, abets, or at-tempts in
any way to contribute to the violation of this section shall be
guilty of a misdemeanor. (Penal Code � 2652.)
Existing regulations require the California Department of
Corrections and Rehabilitation (CDCR) to only provide medical
services for inmates which are based on medical necessity and
supported by outcome data as effective medical care. (15 C.C.R
3350 (a).)
Existing regulations define "medically necessary," for purposes
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of medical care provided to incarcerated persons, as health care
services that are determined by the attending physician to be
reasonable and necessary to protect life, prevent significant
illness or disability, or alleviate severe pain, and are
supported by health outcome data as being effective medical
care. (15 C.C.R 3350 (b)(1).)
Existing regulations define "significant illness or disability,"
for purposes of medical care provided to incarcerated persons,
as any medical condition that causes or may cause, if left
untreated, a severe limitation of function or ability to perform
the daily activities of life or that may cause premature death.
(15 C.C.R 3350 (b)(5).)
Existing regulations exclude certain medical treatment for
incarcerated persons, including surgery that is not medically
necessary, which specifically includes, but is not limited to,
vasectomy and tubal ligation. (15 C.C.R 3350 .1(a) through
(c).)
Existing regulations allow treatment for excluded conditions in
cases where:
1. The inmate's attending physician or dentist prescribed
the treatment as clinically necessary.
2. The service is approved by the appropriate Utilization
Management Committee. The committee's decision shall be
based on:
Available health and dental care outcome data
supporting the effectiveness of the services as
medical or dental treatment.
Other factors, such as: coexisting medical or
dental problems; acuity; length of inmate's sentence;
availability of the service; cost.
(15 C.C.R 3350.1 (d).)
This bill would prohibit sterilization, for the purpose of birth
control, of any person who is involuntarily confined or detained
under a civil or criminal statute, including inmates in state
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prison, reentry facilities, community correctional facilities
and county jails.
This bill allows for sterilization if either:
The procedure is required for the immediate preservation
of the individual's life in an emergency medical situation;
or,
The procedure is required for the necessary treatment of
a physical medical condition, excluding birth control, and
only if all of the following requirements are satisfied:
o Less drastic measures to address the medical
need are non-existent, are refused by the individual,
or are first attempted and deemed unsuccessful;
o A second physician independent of, and not
employed by, the department or county department
conducts an in-person consultation and confirms the
need for medical intervention resulting in
sterilization; and,
o Informed consent is obtained from the patient.
This bill would require that any inmate who undergoes
sterilization be provided with a presterilization and
poststerilization psychological consultation and medical
follow-up.
This bill would require CDCR, county jails, and all other
institutions of confinement to publish an annual report of
sterilizations performed.
This bill includes uncodified legislative intent language, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
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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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
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reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
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Whether a measure erodes realignment and impacts the
prison population;
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:
The Center for Investigative Reporting, based on
information gained through working with Justice Now,
broke a story in 2013 that documented cases of coerced
tubal ligations as late as 2010.
In addition to coerced tubal ligations, Justice Now
also found an alarming number of incarcerated women
who have lost their reproductive capacity through the
overly aggressive use of hysterectomies. Too often
hysterectomies in prison appear to be the first option
for medical problems, such as fibroids, that may have
more effective and less drastic cures. Many women
have had partial and full hysterectomies while
incarcerated that were later deemed unnecessary.
Women were robbed of their reproductive choice by
these coerced procedures. Sterilizations that occurred
under the watch of California's corrections department
smack of eugenics. These acts are unconscionable. It
is well past time we put an end to them and make sure
situations like this never happen again.
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2. Recent Events
On July 7, 2013, the Sacramento Bee reported that female
inmates, in the custody of CDCR, were sterilized without
approval.
Doctors under contract with CDCR sterilized nearly 150
female inmates from 2006 to 2010 without required
state approvals, the Center for Investigative
Reporting has found.
At least 148 women received tubal ligations in
violation of prison rules during those five years -
and there are perhaps 100 more dating back to the late
1990s, according to state documents and interviews.
From 1997 to 2010, the state paid doctors $147,460 to
perform the procedure, according to a database of
contracted medical services for state prisoners.
The women were signed up for the surgery while they
were pregnant and housed at either the California
Institution for Women in Corona or Valley State Prison
for Women in Chowchilla, which is now a men's prison.
Former inmates and prisoner advocates maintain that
prison medical staff coerced the women, targeting
those deemed likely to return to prison in the future.
(Female Inmates Sterilized without Approval, Corey G. Johnson,
Sacramento Bee, July 7, 2013,
http://www.sacbee.com/2013/07/07/5549696/female-inmates-sterilize
d-in-california.html.)
In response to this report, on August 13, 2013, the Senate
Public Safety Committee held an informational hearing regarding
female sterilization in California prisons. The hearing
included representatives from CDCR, experts from Justice Now,
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and the Federal Receiver.<1> The Los Angeles Times reported,
Advocates for women prison inmates called Tuesday for
state law to be changed to make sure convicts are not
subject to sterilization surgery for birth control,
and oversight over medical care is improved.
The proposal by members of the group Justice Now was
made at a legislative hearing into reports that 148
women in California prisons were given tubal ligation
surgery without the required approval of a state
medical committee during a five-year period ending in
2010. The group called Tuesday for a state apology
and reparations.
Some women said they felt coerced into having the
surgery, which is not surprising given the setting,
according to Nora Wilson, a staff attorney for Justice
Now. "In a coercive prison setting there is total
control over a person," Wilson told members of the
Senate Public Safety Committee. "Consent in that
environment cannot be relied upon."
J. Clark Kelso, the receiver for prison medical care
appointed by a federal court, said the practice was
stopped in 2010 as soon as it came to his attention.
He had medical experts look at the records.
"The determination I was given is that most of them
[surgeries] would not have been medically necessary
and we put a stop to it," Kelso told the committee.
(Lawmakers Seek Safeguards against Sterilization of Prison
Inmates, Patrick McGreevy, Los Angeles Time, August 13, 2013.
http://articles.latimes.com/2013/aug/13/local/la-me-pc-protection
-against-sterilization-of-prison-inmates-proposed-by-activists-20
130813.)
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<1> On June 30, 2005, the United States District Court for the
Northern District of California established a Receivership to
take control of the delivery of medical services to all
California state prisoners confined by CDCR.
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3. Effect of This Legislation
This legislation would codify the existing regulatory ban on
sterilization in California detention facilities. The ban would
not apply to cases in which the procedure is medically necessary
and certain protocols are followed. While this legislation
does not contain a penalty provision, existing law does make it
a misdemeanor to "inflict any treatment or allow any lack of
care whatever which would injur[e] or impair the health of the
prisoner, inmate or person confined." (Penal Code � 2652.)
4. Argument in Support
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California Correctional Health Care Services states, in part:
As you know, California Correctional Health Care
Services (CCHCS) put a halt to these procedures in
2010 when it was discovered that female inmates were
being offered tubal ligations while in state prison as
far back as 1999; health officials from the
California Department of Corrections ordered its
clinician to offer tubal ligations as part of routine
post-partum services-despite a regulation in place at
the time prohibiting this procedure expect in extreme
cases where the health of the inmate was as take.
CCHCS appreciated the opportunity to assist in the
formulation of this measure. This bill will codify
the existing regulation found in the California Code
of Regulations (Title 15, Section 3350.1). In
addition, this bill will add important protocols to be
followed in cases where, due to a health-related
issue, a procedure that results in sterilization must
be performed. These procedures mirror our current
practice, but it is important that it is placed into
law so that at the conclusion of the Receivership, the
State will continue to adhere to these protocols.
Finally, this bill also places these requirements on
our county jail system. With the implementation of
public safety realignment, and the corresponding
increase in the number of females who will be housed
for longer periods of time in county jails, it is
important that the provisions apply to local jails.
5. Argument in Opposition
The American Congress of Obstetricians and Gynecologists, which
is opposed to the legislation unless it is amended, states in
part:
In talking with other stakeholders of this bill, I
find that we have very common thoughts, concerns and
goals of respecting women's rights to
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self-determination over their reproductive health,
which includes making those decisions free of
coercion. Given the history of coercion as uncovered
by recent audits, it is challenging to envision a
system that adequately balances those competing goals.
Given the inherently coercive environment of
incarceration, as cited in The Belmont Report, which
recognized the challenges of incarcerated persons
being able to have true informed consent for research
while incarcerated, and as well as the recent evidence
of abuses in California, an adequate process may be
difficult if not impossible to design, but we would
like the opportunity to try.
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