BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 9 8 8 AB 988 (Brownley) As Amended May 18, 2009 Hearing date: July 2, 2009 Penal Code SM:br HUMAN TRAFFICKING HISTORY Source: Author Prior Legislation: AB 2810 (Brownley) - Ch. 358, Stats. 2008 AB 1278 (Lieber) Ch.r258, Stats. 2008 AB 22(Lieber) - Ch. 240, Stats. 2005 SB 180 (Kuehl) - Ch. 239, Stats. 2005 SB 741 (Morrow) - 2005; failed in Senate Public Safety Support: Legal Services for Prisoners with Children; Junior League of Los Angeles, Inc.; California Commission on the Status of Women; Crime Victims United; California Catholic Conference Opposition:None Assembly Floor Vote: Ayes 66 - Noes 10 KEY ISSUES SHOULD THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING (POST) BE REQUIRED, UPON THE NEXT REGULARLY SCHEDULED REVIEW OF (More) AB 988 (Brownley) PageB A TRAINING MODULE RELATING TO HUMAN TRAFFICKING, CREATE AND MAKE AVAILABLE TRAINING CONTENT ON THE U VISA AS AUTHORIZED BY THE FEDERAL VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT OF 2000? (CONTINUED) SHOULD IT BE REQUIRED THAT THE TRAINING INCLUDE HOW TO INFORM VICTIMS ABOUT THE U VISA AND HOW TO APPLY FOR A U VISA, AS SPECIFIED? SHOULD IT BE REQUIRED THAT THE TRAINING CONTENT BE DESIGNED FOR, AND MADE AVAILABLE TO, PEACE OFFICERS EMPLOYED BY LAW ENFORCEMENT AGENCIES THAT PARTICIPATE IN, AND COMPLY WITH, TRAINING STANDARDS SET FORTH BY THE COMMISSION? PURPOSE The purpose of this bill is to (1) require that the Commission on Peace Officer Standards and Training (POST), upon the next regularly scheduled review of a training module relating to human trafficking, create and make available training content on the U Visa as authorized by the federal Victims of Trafficking and Violence Protection Act of 2000; (2) require that the training include how to inform victims about the U Visa and how to apply for a U Visa including, but not be limited to, an explanation that it is available to noncitizen crime victims who have suffered substantial physical or mental abuse from criminal activity, have information regarding criminal activity, and assist government officials in the investigation or prosecution of that criminal activity, if the criminal activity violated United States law or occurred in the United States, including Indian country and military installations, or in the territories and possessions of the United States; and (3) require that the training content be designed for, and made available to, peace officers employed by law enforcement agencies that participate in, and comply with, training standards set forth by the commission. (More) AB 988 (Brownley) PageC Existing law provides that any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of specified sex crimes, extortion, or to obtain forced labor or services is guilty of human trafficking. If committed against an adult, this offense is punishable by 3, 4 or 5 years in state prison. If committed against a minor, this offense is punishable by 4, 6 or 8 years in state prison. (Penal Code 236.1.) Existing law provides for undocumented immigrants to receive U Visas if they have suffered substantial physical or mental abuse resulting from a wide range of criminal activity, and have been helpful with the investigation and prosecution of the crime. (22 USC 7101.) Existing law requires POST to adopt rules establishing minimum standards relating to physical, mental, and moral fitness that governs the recruitment of specified groups of peace officers. POST is also required to adopt rules establishing minimum standards for training specified peace officers. (Penal Code 13510; 13510.5.) Existing law requires that every law enforcement officer in this state shall participate in expanded training as prescribed and certified by the Commission on Peace Officers Standards and Training. (Penal Code 13519.4 (g).) Existing law requires that the POST Commission shall implement by January 1, 2007, a course or courses of instruction for the training of law enforcement officers in California in the handling of human trafficking complaints and also shall develop guidelines for law enforcement response to human trafficking. The course or courses of instruction and the guidelines shall stress the dynamics and manifestations of human trafficking, identifying and communicating with victims, providing documentation that satisfy the law enforcement agency endorsement (LEA) required by federal law, collaboration with federal law enforcement officials, therapeutically appropriate investigative techniques, the availability of civil and (More) AB 988 (Brownley) PageD immigration remedies and community resources, and protection of the victim. Where appropriate, the training presenters shall include human trafficking experts with experience in the delivery of direct services to victims of human trafficking. Completion of the course may be satisfied by telecommunication, video training tape, or other instruction. (Penal Code 13519.14 (a).) Existing law requires that the course of instruction, the learning and performance objectives, the standards for the training, and the guidelines shall be developed by the commission in consultation with appropriate groups and individuals having an interest and expertise in the field of human trafficking. The commission, in consultation with these groups and individuals, shall review existing training programs to determine in what ways human trafficking training may be included as a part of ongoing programs. (Penal Code 13519.14 (c) and (d).) Existing law states that participation in the course or courses specified in this section by peace officers or the agencies employing them is voluntary. (Penal Code 13519.14 (e).) Existing law provides that any employee of a law enforcement agency who personally receives a report from any person, alleging that the person making the report has been the victim of a sex offense, or was forced to commit an act of prostitution because he or she is the victim of human trafficking, as defined in Section 236.1, shall inform that person that his or her name will become a matter of public record unless he or she requests that it not become a matter of public record, pursuant to Section 6254 of the Government Code. (Penal Code 293.) Any written report of an alleged sex offense shall indicate that the alleged victim has been properly informed pursuant to subdivision (a) and shall memorialize his or her response. (Penal Code 293 (a) and (b).) Existing law provides that any person who maliciously publishes, disseminates, or otherwise discloses the location of any trafficking shelter or domestic violence shelter or any place (More) AB 988 (Brownley) PageE designated as a trafficking shelter or domestic violence shelter, without the authorization of that trafficking shelter or domestic violence shelter, is guilty of a misdemeanor, punishable by up to six months in county jail, a fine of up to $1000, or both. (Penal Code 273.7.) Existing law provides that a victim of human trafficking may bring a civil lawsuit for actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief. In such a lawsuit the plaintiff may be awarded up to three times his or her actual damages or $10,000, whichever is greater. In addition, punitive damages may also be awarded upon proof of the defendant's malice, oppression, fraud, or duress in committing the act of human trafficking. (Civil Code 52.5.) Existing law provides that a trafficking victim has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a human trafficking caseworker, as specified. (Evidence Code 1038 - 1038.2.) Existing law provides that no law enforcement agency shall disclose to any person, except the prosecutor, parole officers of the Department of Corrections and Rehabilitation, hearing officers of the parole authority, probation officers of county probation departments, or other persons or public agencies where authorized or required by law, the address of a person who alleges to be the victim of a sex offense or who was forced to commit an act of prostitution because he or she is the victim of human trafficking, as defined in Section 236.1. (Penal Code 293 (c).) Existing law provides that no law enforcement agency shall disclose to any person, except the prosecutor, parole officers of the Department of Corrections and Rehabilitation, hearing officers of the parole authority, probation officers of county probation departments, or other persons or public agencies where authorized or required by law, the name of a person who alleges to be the victim of a sex offense or who was forced to (More) AB 988 (Brownley) PageF commit an act of prostitution because he or she is the victim of human trafficking, as defined in Section 236.1, if that person has elected to exercise his or her right pursuant to this section and Section 6254 of the Government Code. (Penal Code 293 (d).) Existing law provides that parole officers of the Department of Corrections and Rehabilitation and hearing officers of the parole authority, and probation officers of county probation departments, shall be entitled to receive information pursuant to subdivisions (c) and (d) only if the person to whom the information pertains alleges that he or she is the victim of a sex offense or was forced to commit an act of prostitution because he or she is the victim of human trafficking, as defined in Section 236.1, the alleged perpetrator of which is a parolee who is alleged to have committed the offense while on parole, or in the case of a county probation officer, the person who is alleged to have committed the offense is a probationer or is under investigation by a county probation department. (Penal Code 293.) Existing law provides that the name of a victim of human trafficking may be withheld at the victim's request, or at the request of the victim's parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim's parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph. (Government Code 6254 (f)(2).) Existing law states that any provision of a contract that purports to allow a deduction from a person's wages for the cost of emigrating and transporting that person to the United Sates is void as against public policy. (Civil Code 1670.7.) This bill requires that the POST Commission shall, upon the next (More) AB 988 (Brownley) PageG regularly scheduled review of a training module relating to human trafficking, create and make available training content on the U Visa as authorized by the federal Victims of Trafficking and Violence Protection Act of 2000. This bill requires that the training shall include how to inform victims about the U Visa and how to apply for a U Visa. The training regarding the U Visa shall include, but not be limited to, an explanation that it is available to noncitizen crime victims who have suffered substantial physical or mental abuse from criminal activity, have information regarding criminal activity, and assist government officials in the investigation or prosecution of that criminal activity, if the criminal activity violated United States law or occurred in the United States, including Indian country and military installations, or in the territories and possessions of the United States. This bill requires that the training content shall be designed for, and made available to, peace officers employed by law enforcement agencies that participate in, and comply with, training standards set forth by the commission. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) currently has about 170,000 inmates under its jurisdiction. Due to a lack of traditional housing space available, the department houses roughly 15,000 inmates in gyms and dayrooms. California's prison population has increased by 125% (an average of 4% annually) over the past 20 years, growing from 76,000 inmates to 171,000 inmates, far outpacing the state's population growth rate for the age cohort with the highest risk of (More) AB 988 (Brownley) PageH incarceration.<1> In December of 2006 plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On February 9, 2009, the three-judge federal court panel issued a tentative ruling that included the following conclusions with respect to overcrowding: No party contests that California's prisons are overcrowded, however measured, and whether considered in comparison to prisons in other states or jails within this state. There are simply too many prisoners for the existing capacity. The Governor, the principal defendant, declared a state of emergency in 2006 because of the "severe overcrowding" in California's prisons, which has caused "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them." . . . A state appellate court upheld the Governor's proclamation, holding that the evidence supported the existence of conditions of "extreme peril to the safety of persons and property." (citation omitted) The Governor's declaration of the state of emergency remains in effect to this day. . . . the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions. . . . Although the evidence may be less than perfectly ---------------------- <1> "Between 1987 and 2007, California's population of ages 15 through 44 - the age cohort with the highest risk for incarceration - grew by an average of less than 1% annually, which is a pace much slower than the growth in prison admissions." (2009-2010 Budget Analysis Series, Judicial and Criminal Justice, Legislative Analyst's Office (January 30, 2009).) (More) AB 988 (Brownley) PageI clear, it appears to the Court that in order to alleviate the constitutional violations California's inmate population must be reduced to at most 120% to 145% of design capacity, with some institutions or clinical programs at or below 100%. We caution the parties, however, that these are not firm figures and that the Court reserves the right - until its final ruling - to determine that a higher or lower figure is appropriate in general or in particular types of facilities. . . . Under the PLRA, any prisoner release order that we issue will be narrowly drawn, extend no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct the violation of those rights. For this reason, it is our present intention to adopt an order requiring the State to develop a plan to reduce the prison population to 120% or 145% of the prison's design capacity (or somewhere in between) within a period of two or three years.<2> The final outcome of the panel's tentative decision, as well as any appeal that may be in response to the panel's final decision, is unknown at the time of this writing. This bill does not appear to aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Need for This Bill --------------------------- <2> Three Judge Court Tentative Ruling, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (Feb. 9, 2009). (More) AB 988 (Brownley) PageJ According to the author: Due to the underground nature of human trafficking, law enforcement has a hard time finding traffickers and bringing them to justice. In response to that difficulty, Congress created the "U" visas, which are designed to provide immigration status to non-citizens that are assisting or are willing to assist authorities in the investigation of crimes. AB 988 will require the Commission on Peace Officers Standards and Trainings (POST) to create and make available a training module on U Visas. Since the bill is crafted to state that the POST commission need not update their training module until the next regularly scheduled review the bill. 2. Background: The Problem of Human Trafficking AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005) established the California Alliance to Combat Trafficking and Slavery Task Force (hereafter, "Task Force") to examine the issue of human trafficking in California and make findings and recommendations to the Governor, the Attorney General and the Legislature. The Task Force issued its final report in October 2007. The report described the phenomenon of human trafficking as follows: Traffickers lure victims into the United States with deceptive promises of good jobs and better lives, and then force them to work under brutal and inhuman conditions, and deprive them of their freedom. Victims of human trafficking may be involved in agricultural labor, construction labor, hotel and motel cleaning services, illegal transporters, organized theft rings, pornography, prostitution, restaurant services, domestic services, servile marriage (mail-order brides) and sweatshops. Once in this country, many suffer extreme physical and mental abuse, including rape, sexual exploitation, torture, (More) AB 988 (Brownley) PageK beatings, starvation, death threats and threats to family members. (Human Trafficking in California, Final Report of the California Alliance to Combat Trafficking and Slavery Task Force, October 2007, pg 16. http://safestate.org/documents/HT_Final_Report_ADA.pdf.) 3. The Federal Trafficking Victims Protection Act of 2000 In October 2000, the federal Trafficking Victims Protection Act of 2000 (TVPA) was enacted. (22 USC Sections 7101 et seq.) The law is comprehensive, addressing the various ways of combating trafficking, including prevention, protection and prosecution. The prevention measures include the authorization of educational and public awareness programs. Protection and assistance for victims of trafficking include making housing, educational, health-care, job training and other federally-funded social service programs available to assist victims in rebuilding their lives. Finally, the TVPA provides law enforcement tools to strengthen the prosecution and punishment of traffickers, making human trafficking a federal crime. 4. Federal Assistance to Human Trafficking Victims: T-1 Visa and U Visa The final Task Force report describes the types of assistance available to victims of human trafficking, both US citizens and non-citizens: The federal Trafficking Victims Protection Act makes housing, education, health care, job training and other federally funded social service programs available to assist victims in rebuilding their lives. To be eligible the individual must be certified by the U.S. Department of Health and Human Services (DHHS) as a victim of human trafficking. Once certified, the victim becomes eligible for (More) AB 988 (Brownley) PageL benefits to the same extent as refugees, including refugee cash, medical assistance and social services. Victims under the age of 18 and those who are U.S. citizens do not need to be certified in order to obtain these benefits. Individuals not yet certified may be able to obtain interim assistance and services through NGOs. Non-citizen victims of human trafficking may be eligible for immigration relief, including: T visas. The TVPA grants non-citizen victims the right to remain in the country legally for up to three years, and then adjust their status to lawful permanent residents. However, currently, victims cannot become lawful permanent residents because regulations have not yet been developed covering this status adjustment. In order to qualify for a T visa, applicants must be victims of a severe form of trafficking, face severe and unusual harm if they were sent back to their home country, comply with any reasonable request from law enforcement to assist in the investigation or prosecution of the trafficker and meet other eligibility requirements. Children under 18 years of age are eligible for a T visa without meeting the requirement to aid in the criminal investigation. The law provides for the issuance of up to 5,000 T visas to victims per year. Continued Presence. In order to assist in the prosecution of human traffickers, eligible non-citizen victims who are potential witnesses of trafficking may receive temporary immigration relief under the "Continued Presence" provision of federal law. This designation is granted so that a foreign victim of human trafficking may be present in the U.S. during the investigation and prosecution of the trafficker. A federal law enforcement officer must initiate a request for Continued Presence. Trafficked victims may apply for a T visa, however, (More) AB 988 (Brownley) PageM without having Continued Presence requested on their behalf. U visas. U visas, also created by the federal TVPA, allow non-citizen victims who have suffered substantial physical or mental abuse as a result of being the victims of certain crimes, including trafficking, to remain lawfully in the country for a specified period of time. Victims must be likely to be helpful with the investigation or prosecution of the crime. Up to 10,000 U visas may be issued to victims annually. To obtain a U visa, individuals do not have to be victims of a "severe form of human trafficking," as required for the T visa, and, therefore, more victims may be eligible for a U visa. However, until September 2007, regulations had not been developed on the issuance of U visas, so the U.S. Department of Homeland Security, meanwhile, provided for "U visa interim relief," which has allowed potential recipients of a U visa to remain lawfully in the country pending the issuance of regulations governing U Visas. Recipients of U visas are not eligible for federal benefits. (Note: The letter, "T," used in T visas relates to a section of the federal code and does not stand for "trafficking." Similarly, the "U" in U visas refers to a section of the federal code.) (More) (Human Trafficking in California, Final Report of the California Alliance to Combat Trafficking and Slavery Task Force, October 2007, pgs 48-49. http://safestate.org/documents/HT_Final_Report_ADA.pdf.) 5. Previous Training Requirements Established for Law Enforcement SB 180 (Kuehl) (2005) also enacted Penal Code Section 13519.14. (Chapter 239, Stats. of 2005.) That section required the POST Commission to implement by January 1, 2007, a course or courses of instruction for the training of law enforcement officers in California in the handling of human trafficking complaints and also shall develop guidelines for law enforcement response to human trafficking. It specifies that the training and guidelines shall stress the dynamics and manifestations of human trafficking, identifying and communicating with victims, providing documentation that satisfy the law enforcement agency endorsement required by federal law to obtain the T-1 visa, collaboration with federal law enforcement officials, therapeutically appropriate investigative techniques, the availability of civil and immigration remedies and community resources, and protection of the victim. Completion of the course may be satisfied by telecommunication, video training tape, or other instruction. (Penal Code 13519.14 (a).) It is also required under current law that the training, and the guidelines be developed in consultation with appropriate groups and individuals having an interest and expertise in the field of human trafficking. (Penal Code 13519.14 (c).) Participation in this training by peace officers or the agencies employing them is voluntary. (Penal Code 13519.14 (e).) As noted above, AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005) also established a 19 member Task Force to examine the issue of human trafficking in California and make findings and recommendations to the Governor, the Attorney General and the Legislature. Notwithstanding the training required by Section 13519.14, one of the recommendations of the Task Force was, "The Legislature should mandate a two-hour training session on human trafficking for state and local law enforcement through the (More) AB 988 (Brownley) PageO Commission on Peace Officers Standards and Training (POST) that would be offered through a telecourse and learning portal to strengthen the chance of successful identification of victims and prosecution of traffickers. POST should be encouraged to include human trafficking training for law enforcement in its Basic Academy Curriculum, and law enforcement should include this training during roll-call sessions." (Human Trafficking in California, Final Report of the California Alliance to Combat Trafficking and Slavery Task Force, October 2007, pg. 9, http://safestate.org/documents/HT_Final_Report_ADA.pdf.) DO THE TRAINING REQUIREMENTS OF AB 22 AND SB 180 ADEQUATELY ADDRESS THE NEED FOR LAW ENFORCEMENT TRAINING WITH RESPECT TO NOTIFYING HUMAN TRAFFICKING VICTIMS OF AVAILABLE FEDERAL ASSISTANCE? SHOULD ADDITIONAL LAW ENFORCEMENT TRAINING BE MANDATED, AS SPECIFIED, WITH RESPECT TO NOTIFYING HUMAN TRAFFICKING VICTIMS OF THE AVAILABILITY OF THE U VISA? ***************