Condoms & Corrections
California’s controversial new law will provide safer-sex tools to prisoners
by Larry Buhl
In 1987 Vermont was the first state to supply condoms to state prisons. Since then, jurisdictions throughout the world have made condoms available in correctional facilities. The European Union, Canada, and, in the U.S., Los Angeles, New York and Philadelphia all have programs to provide free condoms to inmates who want them.
But state prison systems in the U.S. have been slow and resistant to the idea. It’s taken twenty-eight years, thirty-three years into the HIV/AIDS epidemic, for the second U.S. state to mandate condom distribution in prison.
Last year California passed a law mandating condom availability for males in all state prisons. Jails, administered by the counties, set their own policies.
Condoms won’t be available right away. The California Department of Corrections and Rehabilitation (CDCR) was given five years to determine how to distribute them in its thirty-four prisons.
And there’s a catch. Sex between those who are incarcerated, even consensual sex, is illegal in most correctional facilities in the U.S., and California is no exception. Advocates say that’s been one of the biggest hurdles to allowing condoms in corrections.
But almost everyone in correctional systems admit that consensual sex, and forced sex, happens. And public health advocates say if sex is going to happen, correctional systems should be responsible for making it safer.
Pilot project in Solano State Prison
It’s not like the issue hasn’t been studied.
In 2007, Governor Arnold Schwarzenegger vetoed a bill requiring the CDCR to allow non-profit and public healthcare agencies to distribute condoms. But he directed CDCR to determine the “risk and viability” of a condom distribution program at one state prison.
The CDCR chose California State Prison-Solano for its pilot. From November 2008 to November 2009, the California Department of Public Health–Office of AIDS oversaw the program and the Los Angeles-based Center for Health Justice bought and installed ten condom-dispensing machines in general population housing units.
The machines were very discreet, according to Ron Osario, special projects director with the Center for Health Justice.
“The machines were off to the side or down a hall but not where inmates hung out. Walk by, turn the knob get a condom, and keep on going without anyone finding out,” Osario tells A&U.
At the end of the program the CDCR found “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 CSP-Solano program was determined to cost the state $1.39 per prisoner. That’s in sharp contrast, advocates point out, to the estimated $41,000 per year the state spends treating an HIV-infected inmate, according to the state legislative analyst.
The California bill mandating condoms in state prisons was signed without fanfare by Governor Brown last September. A year earlier Brown had vetoed a similar bill, AB 999, but that bill was more prescriptive about how the law would be rolled out. AB 966 provided discretion to the CDCR, according to its sponsor, Assemblyman Rob Bonta.
“We are most interested in having the condoms distributed throughout the prison system in a reasonable period of time, and how exactly that happens is less important,” Bonta tells A&U.
Bonta answers detractors of free condoms in prisons, saying many public safety programs, like needle exchanges, which can be can be used for illegal drugs, acknowledge that laws can and are broken.
“What we have is the reality of sex between inmates in prison happening and the tragic reality of HIV and other STDs being transmitted. We have a simple and highly effective solution, and it’s not expensive. So why aren’t we implementing it? And that’s what this bill was about.”
There are issues for the CDCR to determine, such as who will have access to condoms, just gay-identified inmates, or everyone. Will condoms be distributed through machines, or through staff? And what kind of education or harm reduction program, if any, will coincide with the free latex?
But the CDCR does have two ongoing programs to look at, one in San Francisco County jails, where the ten condom machines went after the Solano project finished, and a long-term project in Los Angeles County.
The K6G unit
In 2001, Los Angeles County Sheriff Lee Baca initiated a program for condom distribution in one dorm of the downtown men’s jail that houses self-identified gay or bisexual men, called the K6G unit. Many in K6G population were living on the streets, sex workers, or both, and the HIV rate in the unit is thirty percent, according to the county.
“Moral issues aside, for us it’s just a practical matter,” Garret Cox, an epidemiologist with the LA County Sheriff tells A&U. “There’s a high rate of HIV in subpopulations in the jail. Condoms are a lot cheaper than HIV meds.”
Every Friday morning a representative from the county health department passes out three condoms for any of the approximately 400 K6G inmates who want them, plus lubricant. Inmates are told to place used condoms in special receptacles, which are later removed by health department officials.
The jail also offers testing and non-mandatory risk reduction classes. There’s counseling for those who are HIV-positive. The K6G pilot program is partly overseen by the Center for Health Justice, a Los Angeles-based nonprofit that provides classes, training and advocacy for incarcerated people in southern California.
But condoms are only available to inmates of K6G. Men in the general population could benefit from condoms too—sex among straight-identified men does happen—but Baca’s plan didn’t call for that. It’s not clear whether the new Sheriff, Jim McDonnell, will expand the program to all male inmates.
When the program started, some feared that condoms could be used to smuggle drugs, strangle a guard, or even lead to rapes, even though rapists generally don’t use protection.
Captain Joseph Dempsey with the L.A. County Sheriff says that after more than a decade, none of those fears have been realized.
“Sex that’s not consensual is going to be prosecuted by the DA,” Dempsey tells A&U.
“If a deputy were to observe [sexual activity], he will write it up and present it to the DA, but the DA is not likely to file charges if it’s consensual. Mainly that’s for us to make sure that it’s consensual. Because we take rape and sexual assault seriously here, and we wouldn’t just assume.”
Sheriff Department staff members acknowledge LA’s condom program is popular.
“The inmates are positive about the program and follow the rules well, like disposing the condoms properly, because they want it to continue,” Deputy Javier Machado of the Los Angeles County Sheriff’s Department says.
And the program is effective in what it set out to do. In the October 2013 edition of AIDS Behavior magazine, researchers published findings of their study on condom distribution in jail to prevent HIV infection.
They concluded that base estimates showed that condom distribution averted one-quarter of HIV transmissions. “The discounted future medical costs averted due to fewer HIV transmissions exceed program costs, so condom distribution in jail reduces total costs.”
The Center for Health Justice also offers harm reduction classes for inmates throughout the state, both gay and straight, something that John Carlos Fabian is prevention director with the Center, believes is an important partner with condom distribution.
For many inmates, the classes and focus groups led by MFT interns are the first time they’ve considered the impact of their decisions, Fabian tells A&U.
“In order for them to start making those changes, we need to look into what happened from childhood,” Fabian says.
“Most have been traumatized from the moment they came into this world. No parenting, no roof over their heads. The reason many of them continue to engage in high risk activities is they don’t love themselves, or they have a sense of fatalism. We take the time to show them what could happen to them if they engage in high-risk behavior, and explore why they engage in that behavior.”
Too much fear, too much ignorance
Ron Osorio knows firsthand how HIV is stigmatized in corrections, though he admits the state prison system has come a long way in fifteen years.
In 1999 Osario was sentenced to three years in California state prison for embezzling. Being HIV-positive, he faced discrimination and ignorance at every turn.
“When you disclose you’re HIV-positive there were only certain yards,” he tells A&U. “They had an opening in Chino State prison, in the Del Norte yard, we had our own separate yard dividing HIV-positive guys from negative guys, set off with twelve-foot chain link fence.”
That separation basically told everyone who was HIV-positive, a designation that had even greater stigma at the time.
“There was a guy in the dorm who had never once gone out on the yard in fifteen years, because he was a gang member and he couldn’t let others know his status.”
Osario shares other indignities, like not being able to participate in activities like fire camp—California state prisoners are part of the firefighting effort in the state—even though he was healthy and had clearance from his doctors. When he was admitted to prison, a member of the classification board calling for men in hazmat suits to quarantine him when he disclosed his HIV status. The medical staff, which had little contact with the other departments, was appalled.
Fast forward to 2015. The chain-link fences are gone. And Ron’s organization, The Center for Health Justice, borne of his intolerance of discrimination and some help from the ACLU, now leads inmate peer education on HIV.
“I believe inmates are more educated than the guards here in Southern California. Sadly, there’s still nobody training the guards.”
What’s the worst that could happen?
The Centers for Disease Control and Prevention recommends a federal prison condom distribution law, but no such law has been passed.
According to the CDC, one in seven people living with HIV in the United States spends at least some time in a correctional facility every year. Public health advocates say that means condoms should be available everywhere. But right now there are no other states with plans to distribute condoms in prisons.
Delores Burroughs-Biron, Health Services Director for Vermont’s Department of Corrections, tells A&U that there have been no adverse consequences from more than two decades of providing condoms in that state’s prisons.
“[The law] should be seen as an important public health measure that can extend its positive effects far beyond the prison walls,” she adds.
If California’s law turns out to be as un-dramatic as Vermont’s, it might lead other states to consider permitting condoms in their prisons.
Or it might not. Osario says the mentality of state prison infrastructures can make them highly resistant to change.
“The prison staff doesn’t want to admit that there is sex going on in a locked facility. And inmates don’t want you to know it’s going on. It’s a taboo that nobody wants to talk about. It takes some strong advocates and political will to overcome that.”
Larry Buhl is a radio news reporter, screenwriter, and novelist living in Los Angeles. His podcast on employment issues, “Labor Pains,” can be found at www.laborpainspodcast.com.