BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 5 5 7 SB 557 (Yee) As Amended April 22, 2009 Hearing date: April 28, 2009 Penal Code SM:mc HUMAN TRAFFICKING HISTORY Source: Author Prior Legislation: AB 2810 (Brownley) - Chapter 358, Stats. of 2008 AB 1278 (Lieber) - Chapter 258, Stats. of 2008 AB 22 (Lieber) - Chapter 240, Stats. of 2005 SB 180 (Kuehl) - Chapter 239, Stats. of 2005 SB 751 (Morrow) - 2005, failed in Senate Public Safety SB 1255 (Hughes) - Chapter 1022, Stats. of 1994 AB 114 (Burton) - Chapter 314, Stats. of 1994 Support: Los Angeles District Attorney's Office Opposition:None known (NOTE: THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS THAT WILL BE OFFERED IN COMMITTEE.) KEY ISSUE (More) SB 557 (Yee) PageB UPON A PERSON BEING CONVICTED OF HUMAN TRAFFICKING, SHOULD REAL PROPERTY USED TO FACILITATE THE CRIME BE SUBJECT TO SEIZURE PURSUANT TO THE NUISANCE ABATEMENT STATUTES AND THE TRAFFICKER SUBJECT TO A CIVIL FINE OF UP TO $25,000? PURPOSE The purpose of this bill is to provide that, upon a person being convicted of human trafficking, if real property was used to facilitate the offense, that property could be found to be a public nuisance and the remedies applicable under the nuisance or "Red Light Abatement" statutes, as specified, shall apply. Those remedies include closing the property for one year and a civil fine of up to $25,000. 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 three, four or five years in state prison. If committed against a minor, this offense is punishable by four, six or eight years in state prison. (Penal Code 236.1.) 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 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 $1,000, 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 (More) SB 557 (Yee) PageC 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 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 States is void as against public policy. (Civil Code 1670.7.) Existing law provides that when charges alleging multiple violations of human trafficking that involve the same victim or victims in multiple territorial jurisdictions are filed in one county, the court shall hold a hearing to consider whether the matter should proceed in the county of filing, or whether one or more counts should be severed. The district attorney filing the complaint shall present evidence to the court that the district attorney in each county where any of the charges could have been filed has agreed that the matter should proceed in the county of filing. In determining whether all counts in the complaint should be joined in one county for prosecution, the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, the rights of the defendant and the people, and the convenience of, or hardship to, the victim or victims and witnesses. (Penal Code 784.8.) Existing law provides that a victim of human trafficking can prevent his or her name from becoming a matter of public record. (Government Code 6254.) Existing law provides that law enforcement agencies shall use due diligence to identify all victims of human trafficking, regardless of the citizenship of the person. When a peace officer comes into contact with a person who has been deprived (More) SB 557 (Yee) PageD of his or her personal liberty, a person suspected of violating subdivision (a) or (b) of Section 647, or a victim of a crime of domestic violence or rape, the peace officer shall consider whether the following indicators of human trafficking are present: Signs of trauma, fatigue, injury, or other evidence of poor care. The person is withdrawn, afraid to talk, or his or her communication is censored by another person. The person does not have freedom of movement. The person lives and works in one place. The person owes a debt to his or her employer. Security measures are used to control who has contact with the person. The person does not have control over his or her own government-issued identification or over his or her worker immigration documents. (Penal Code 236.2.) Existing law states that buildings used for specified illegal activities are a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance. (Penal Code 11225.) Existing law provides that if the existence of a nuisance is established, as specified, an order of abatement shall be entered as a part of the judgment in the case: Directing the removal from the building or place of all fixtures, musical instruments and movable property used in conducting, maintaining, aiding, or abetting the nuisance, and directing the sale thereof in the manner provided for the sale of chattels under execution, and the effectual closing of the building or place against its use for any purpose, and that it be kept closed for a period of one year, unless sooner released. If the court finds that any vacancy resulting from closure of the building or place may create a nuisance or that closure is otherwise harmful to the community, in lieu of ordering the building or place closed, the court may order the person who is responsible (More) SB 557 (Yee) PageE for the existence of the nuisance to pay damages in an amount equal to the fair market rental value of the building or place for one year to the city or county in whose jurisdiction the nuisance is located. The actual amount of rent being received for the rental of the building or place, or the existence of any vacancy therein, may be considered, but shall not be the sole determinant of the fair market rental value. Expert testimony may be used to determine the fair market rental value. While the order remains in effect as to closing, the building or place is and shall remain in the custody of the court. For removing and selling the movable property, the officer is entitled to charge and receive the same fees as he or she would for levying upon and selling like property on execution. For closing the premises and keeping them closed, a reasonable sum shall be allowed by the court. The court may assess a civil penalty not to exceed $25,000 against any and all of the defendants, based upon the severity of the nuisance and its duration. One-half of the civil penalties collected pursuant to this section shall be deposited in the Restitution Fund in the State Treasury, and one-half of the civil penalties collected shall be paid to the city in which the judgment was entered, if the action was brought by the city attorney or city prosecutor. If the action was brought by a district attorney, one-half of the civil penalties collected shall be paid to the treasurer of the county in which the judgment was entered. (Penal Code 11230.) Existing law defines "criminal profiteering activity" as any act made for financial gain or advantage if the act may be charged as one of a number of crimes, including human trafficking. (Pen. Code 186.2, subd. (a)(28).) (More) SB 557 (Yee) PageF Existing law defines "pattern of criminal profiteering activity" as engaging in at least two incidents of criminal profiteering that meet the following requirements: have the same or a similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics; are not isolated events; and were committed as a criminal activity of organized crime. (Pen. Code 186.2, subd. (b).) Existing law provides that after conviction of the underlying offense, a person may be subject to asset forfeiture if the prior act occurred within 10 years, excluding any period of imprisonment, of the commission of the underlying offense. (Pen. Code 186.2, subd. (b).) Existing law defines "Organized crime" for purposes of the criminal profiteering forfeiture statutes as crime that is of a conspiratorial nature and that is either of an organized nature and seeks to supply illegal goods and services such as narcotics, prostitution, loan-sharking, gambling, and pornography, or that, through planning and coordination of individual efforts, seeks to conduct the illegal activities of arson for profit, hijacking, insurance fraud, smuggling, operating vehicle theft rings, fraud against the beverage container recycling program, or systematically encumbering the assets of a business for the purpose of defrauding creditors. "Organized crime" also means crime committed by a criminal street gang, as defined in subdivision (f) of Section 186.22. "Organized crime" also means false or fraudulent activities, schemes, or artifices, as described in Section 14107 of the Welfare and Institutions Code, and the theft of personal identifying information, as defined in Section 530.5. (Penal Code 186.2(d).) Existing law provides that upon proof of specified provisions, the following assets shall be subject to forfeiture: (More) SB 557 (Yee) PageG a (tangible or intangible) property interest acquired through a pattern of criminal profiteering activity; and all proceeds of a pattern of criminal profiteering activity, including all things of value . . . received in exchange for the proceeds . . . derived from the pattern of criminal profiteering activity. (Pen. Code 186.3.) Existing law provides that forfeiture proceedings shall be set for hearing in the superior court in which the underlying criminal offense will be tried. If the defendant is found guilty of the underlying offense, the issue of forfeiture shall be promptly tried, either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties. (Pen. Code 186.5, subd. (c).) Existing law requires that before assets are forfeited, the prosecuting agency shall have the burden of establishing beyond a reasonable doubt that the defendant was engaged in a pattern of criminal profiteering activity. (Pen. Code 186.5, subd. (d).) This bill provides that upon a person being convicted of human trafficking, if real property is used to facilitate the offense, the procedures for declaring the property to be a nuisance, as described above, shall apply. 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) SB 557 (Yee) 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) SB 557 (Yee) 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) SB 557 (Yee) PageJ According to the author: Typically those trafficked are used for 2 different purposes, either forced labor or sexual exploitation. Statistics show that 90% of victims of human trafficking are female. According to the 2007 report released by the task force investigating human trafficking in California, 47% of victims are used in prostitution, 33% are used in domestic servitude, 5% in sweatshops and 2% in agriculture. Research by the Human Rights Center at the University of California found 57 forced labor operations between 1998 and 2003 throughout California. SB 557 seeks to further assist victims and law enforcement in California, while providing another deterrent for perpetrators. Specifically, SB 557 allows any real property used to facilitate human trafficking to be declared a public nuisance and seized by the court until the nuisance is abated, and further subjects the trafficker to the costs of the seizure and a civil fine of up to $25,000. 2. Background: The Problem of Human Trafficking AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005) established a 19 member Task Force to examine the issue of human trafficking in California. That 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 (More) SB 557 (Yee) PageK this country, many suffer extreme physical and mental abuse, including rape, sexual exploitation, torture, 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. Existing Forfeiture Provisions for Human Trafficking and What This Bill Would Do Proceeds of human trafficking operations are subject to forfeiture under the existing criminal profiteering statutes. (Penal Code 186, et seq.) This bill would, in addition, provide that, after a person is convicted of the crime of human trafficking , any real property that person used to facilitate the crime, such as a building used as a sweatshop or a brothel where trafficked women or girls are forced to work, would be declared a nuisance and be subject to seizure pursuant to the statutory scheme for nuisance abatement known as the Red Light Abatement laws. (Penal Code 11225, et seq.) (More) Under the nuisance abatement statutes, either a citizen or a prosecuting agency may bring a civil lawsuit to obtain a court order that, due to specified illegal activity taking place on the premises, the property constitutes a nuisance. If the court finds the specified illegal activity was in fact taking place on the property, by operation of law the property is deemed a nuisance per se. The court shall then order the building seized and the property be kept closed for up to one year. (Penal Code 11230.) If the court finds that any vacancy resulting from closure of the building would be harmful to the community, in lieu of ordering the building or place closed, the court may order the person who is responsible for the existence of the nuisance to pay damages in an amount equal to the fair market rental value of the building or place for one year to the city or county in which the nuisance is located. The court may also assess a civil penalty of up to $25,000 against any and all of the defendants, based upon the severity of the nuisance and its duration. (Id.) 4. Innocent Owners Long standing case law establishes that any order to seize property under the Red Light Abatement statutes must be consistent with the underlying purpose of the injunction, which is to abate the nuisance. (See, People ex rel. Hicks v. Sarong Gals, 42 Cal. App. 3d 556, 563 (1974) "The purpose of red light abatement proceedings is to abate a nuisance.") Accordingly, where the property owner takes action in good faith to remove the source of the nuisance before the abatement lawsuit is brought, the purpose for the seizure no longer exists and the seizure may not be ordered. It is, of course, well settled -- indeed, it is but the statement of a rule necessarily following from the very logic of such a situation -- that, where a nuisance to abate which an action has been commenced has been abated or suppressed by the parties themselves charged with maintaining the nuisance or otherwise prior to the commencement of the action the further prosecution of the (More) SB 557 (Yee) PageM action cannot be maintained and the action should be dismissed, for the very obvious reason that there is then nothing existing against or upon which the injunctive process of the court can or will operate. And this rule, of course, applies as well to cases arising under the Red-light Abatement Act as in other cases of nuisances. (People v. Goddard, 47 Cal. App. 730, 740 (1920), citations omitted.) In relation to this bill, a situation could arise where, for example, a homeowner is convicted of human trafficking due to his having brought a woman from a foreign country with a promise of employment, instead held the woman against her will, forced her to work as a domestic servant, and paid her nothing. After his conviction, the person responsible for the trafficking is sent to state prison but the rest of his family still resides in the home. In this situation, it would appear, so long as there are no other trafficked persons on the premises, the nuisance would have ceased to exist, and the home would not be subject to seizure. AFTER A PERSON IS CONVICTED OF HUMAN TRAFFICKING, SHOULD REAL PROPERTY THAT WAS USED TO FACILITATE THE CRIME BE SUBJECT TO NUISANCE ABATEMENT AND THE OWNER SUBJECT TO CIVIL PENALTIES? WOULD THIS PROVIDE AN ADDITIONAL DETERRENT TO TRAFFICKERS? WOULD AN INNOCENT OWNER HAVE AN OPPORTUNITY TO ESTABLISH THAT THE NUISANCE NO LONGER EXISTS ON THE PROPERTY AND THEREBY AVOID SEIZURE OF THE PROPERTY. ***************