BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 9 0 AB 90 (Swanson) As Amended June 27, 2011 Hearing date: July 5, 2011 Penal Code JM:mc CRIMINAL ASSET FORFEITURE: SEXUAL EXPLOITATION OF MINORS FUNDING OF PROGRAMS FOR MINORS USED FOR SEXUAL COMMERCE HISTORY Source: Alameda County Board of Supervisors Prior Legislation: AB 17 (Swanson) - Ch. 211, Stats. 2010 Support: (Received prior to most recent version of the bill): Los Angeles County District Attorney; California State Sheriffs' Association; Child Abuse Prevention Center; Crime Victims United of California; California Catholic Conference; National Association of Social Workers, California Chapter; Alameda County District Attorney; California Nurses Association; California District Attorneys Association; California Narcotic Officers' Association; California Police Chiefs Association; California Coalition for Youth Opposition:None known Assembly Floor Vote: Ayes 79 - Noes 0 (More) AB 90 (Swanson) PageB KEY ISSUES SHOULD ANY CRIME IN WHICH THE DEFENDANT ENCOURAGED, INDUCED, FORCED OR COERCED A MINOR TO ENGAGE IN A COMMERCIAL SEX ACT BE THE BASIS FOR CRIMINAL PROFITEERING ASSET FORFEITURE, AS SPECIFIED? (CONTINUED) SHOULD THE PROCEEDS OF CRIMINAL PROFITEERING ASSET FORFEITURE IN SUCH CASES BE USED TO FUND PROGRAMS FOR MINORS WHO ARE SEXUALLY EXPLOITED OR THE VICTIMS OF HUMAN TRAFFICKING, AS SPECIFIED? PURPOSE The purposes of this bill are to 1) provide that any crime in which the defendant persuaded or induced a minor to engage in a commercial sex act can be the basis of criminal profiteering asset forfeiture; 2) provide that any crime in which the defendant coerced or forced a minor to engage in a commercial sex act can be the basis of criminal profiteering asset forfeiture; 3) define a commercial sex act as sexual conduct for which anything of value is given or received by any person; and 4) provide that the proceeds of criminal asset forfeiture in such cases be used for programs to assist minors who are sexually exploited or the victims of human trafficking, as specified. Existing law includes the criminal profiteering asset forfeiture law. Criminal profiteering forfeiture applies where the defendant is convicted of a specified offense and the defendant has engaged in a pattern of criminal profiteering activity, as specified. (Pen. Code § 186.3.) The following assets or property is subject to forfeiture: Any property interest whether tangible or intangible, (More) AB 90 (Swanson) PageC acquired through a pattern of criminal profiteering activity. All proceeds of a pattern of criminal profiteering activity, which property shall include all things of value that may have been received in exchange for the proceeds immediately derived from the pattern of criminal profiteering activity. Existing law states that forfeited cash and proceeds of the sale of forfeited property shall be distributed as follows: To the bona fide or innocent purchaser, conditional sales vendor, or holder of a valid lien, mortgage, or security interest, up to the amount of his or her interest in the property or proceeds, as specified. To the Department of General Services or local governmental entity for all expenditures incurred in connection with the sale of the forfeited property. To the State General Fund or the general fund of the local governmental entity, whichever prosecutes. (Pen. Code § 186.8), except in the child pornography or recycling fraud cases. In a case of fraud involving the state recycling program, to a special fund designated in the Public Resources Code. In the case of child pornography crimes, to the county children's trust fund or State Children's Trust Fund In a case involving human trafficking of minors for purposes of prostitution or lewd conduct, or a case of procurement of a minor, to the Victim-Witness Assistance Fund for child sexual exploitation and abuse counseling and prevention programs. Fifty percent of the funds shall be granted to community-based organizations that serve minor victims of human trafficking. (More) AB 90 (Swanson) PageD Existing law includes human trafficking<1> (Pen. Code § 236.1) in the list of crimes for which a forfeiture of assets can be sought for criminal profiteering. (Pen. Code § 186.2, subd. (a)(28).) Existing law includes abduction or procurement by fraudulent inducement for prostitution to the list of crimes for which a forfeiture of assets can be sought for criminal profiteering. (Pen. Code § 186.2, subd. (a)(31).) Existing law includes numerous crimes concerning sexual exploitation of minors for commercial purposes. These crimes include: Pimping: Deriving income from the earnings of a prostitute, deriving income from a place of prostitution, or receiving compensation for soliciting a prostitute. Where the victim is a minor under the age of 16, the crime is a punishable by a prison term of three, six or eight years. (Pen. Code § 266h, subds. (a)-(b).) Pandering: Procuring another for prostitution, inducing another to become a prostitute, procuring another person to be placed in a house of prostitution, persuading a person to remain in a house of prostitution, procuring another for prostitution by fraud, duress or abuse of authority, and commercial exchange for procurement. (Pen. Code § 266i, subd. (a).) Procurement: Transporting or providing a child under 16 to another person for purposes of any lewd or lascivious act. The crime is punishable by a prison term of three, six, or eight years, and by a fine not to exceed $15,000. (Pen. Code § 266j.) -------------------------- <1> Human trafficking involves depriving or violating the personal liberty of another with the intent to effect or maintain a felony enticement of a minor into prostitution, pimping or pandering, abduction of a minor for prostitution, extortion, or to obtain forced labor or services. (More) AB 90 (Swanson) PageE Taking a minor from her or his parents or guardian for purposes of prostitution. This is a felony punishable by a prison term of 16 months, two years, or three years and a fine of up to $2,000. (Pen. Code § 267.) Child pornography production: Using a minor to assist in the making of child pornography for commercial purposes is a felony, with a prison term of 3, 6, or 8 years. (Pen. Code § 311.4, subd. (b).) This bill provides that any case in which the defendant persuaded, induced, coerced or forced a minor to engage in a commercial sex act sex can be the basis of criminal profiteering asset forfeiture, as specified. This bill provides that the proceeds of criminal profiteering in cases of commercial sexual exploitation of minors, as specified, shall be distributed to the Victim-Witness Assistance Fund for child sexual exploitation and abuse counseling and prevention programs. Fifty percent of the funds shall be granted to community-based organizations that serve minor victims of human trafficking. This bill defines a commercial sex act as sexual conduct for which anything of value is given or received by any person. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. As these cases have progressed, prison conditions have continued to be assailed, and the scrutiny of the federal courts over California's prisons has intensified. On June 30, 2005, in a class action lawsuit filed four years earlier, 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 (More) AB 90 (Swanson) PageF state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances.
In response to the unresolved prison capacity crisis, in early 2007 the Senate Committee on Public Safety began holding legislative proposals which could further exacerbate prison overcrowding through new or expanded felony prosecutions. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: We are facing a modern day slave trade in our cities across this state and across the nation. Countless children, from foster youth to runaways from more affluent neighborhoods are being trapped, sold and mercilessly abused for profit. Studies show that more than 300,000 children are being bought and sold into (More) AB 90 (Swanson) PageG sexual slavery each year. And those numbers are on the rise due to the state of our economy, decreased prison rehabilitation efforts, and the resulting trend of drug dealers turning to pimping as a more profitable business with less risk of conviction. It is time that we treat the young victims of sexual exploitation that we find wandering the streets of Broadway with the same care, sensitivity, and legal protection that we provide a young victim found in a classroom in the suburbs. AB 90 moves our state and its law toward this important goal by re-characterizing laws relating to modern day slavery, properly categorizing the predators, and providing resources to the victims. 2. Sex Trafficking of Minors - Estimated Prevalence There appears to be general agreement that sex trafficking of children is increasing and profitable. However, the 2007 Final Report of the California Alliance to Combat Trafficking and Slavery Task Force<2> noted that California lacks comprehensive statistics on human trafficking. Thus, many statistics on human trafficking in general, and sex trafficking of children in particular, are estimates. The task force report did cite statistics from various sources, including a study finding that 80 percent of documented cases in California occurred in urban areas and the majority of victims were non-citizens. Approximately 50 percent of human trafficking cases involved prostitution. A U.S. State Department report of global trafficking estimated that minors constituted 50 percent of trafficking victims. (2007 Alliance to Combat Trafficking. Final Report, pp. 33-39.<3>) The Federal Bureau of Investigation (FBI) conducts 24 Innocence --------------------------- <2> The task force was administered by the California Attorney General's Office. <3> http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf . The report includes citations to the each of the studies quoted in the report. (More) AB 90 (Swanson) PageH Lost child sexual exploitation task forces and working groups across the country. Through 2007, 365 cases were opened and 281 child victims were located. The Shared Hope International non-profit organization has reported that approximately 100,000 domestic minors are sexually trafficked each year.<4> Numerous examples of trafficking cases were summarized in California Alliance Report. In 2001, a Berkeley man was prosecuted for smuggling 15 girls from India for labor and sexual exploitation. In 2000, a man was prosecuted for bringing women and girls from Mexico and forcing them to work as prostitutes in Long Beach. Traffickers in Los Angeles and San Francisco were prosecuted for forcibly taking 100 women from Korea to be sex workers in massage businesses. (2007 Alliance to Combat Trafficking, Final Report, p. 18.) (More) --------------------------- <4> http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report _on_DMST_2009.pdf 3. Criminal Profiteering Asset Forfeiture Law Procedure Criminal profiteering asset forfeiture is a criminal proceeding held in conjunction with the trial of the underlying criminal offense. Often, the same jury that heard the criminal charges determines whether the defendant's assets were the ill-gotten gains of criminal profiteering. Proceeds Under existing law the forfeited proceeds of criminal profiteering are usually placed in the county general fund with no directions for use. There are exceptions for forfeiture in child pornography cases, fraud against the state recycling program, human trafficking of minors for prostitution, and procurement of minors for prostitution. In child pornography cases, the money is deposited in the county's children's trust fund or the State Children's Trust Fund for child abuse and neglect prevention and intervention. Recycling forfeiture proceeds are deposited in a special account created under the Public Resources Code. (Pen. Code § 186.8; Welf. Inst. Code §§ 18966 and 18969.) The proceeds of forfeiture in cases of human trafficking of minors for prostitution and procurement of minors for prostitution are distributed to the Victim-Witness Assistance Fund for child sexual exploitation and abuse counseling and prevention programs. Fifty percent of the funds shall be granted to community-based organizations that serve minor victims of human trafficking. Forfeiture Proceeds Under This Bill This bill significantly expands the use of criminal asset forfeiture proceeds to fund programs for preventing child sexual exploitation and for helping victims of such crimes. The bill does this by essentially providing that any crime in which the (More) AB 90 (Swanson) PageJ defendant sexually exploited a minor for commercial purposes can be the basis for criminal profiteering asset forfeiture, regardless of the specific statute violated by the defendant. That is, the defendant's conduct controls, not his or her crime of conviction. And, the bill provides that the forfeited assets shall be used for preventing child sexual exploitation and assisting child sexual exploitation victims. AB 17 (Swanson) Chapter 211, Statutes of 2010, sets a precedent for the use of asset forfeiture to fund programs to address sexual exploitation and trafficking of minors. This bill expands the policy set in AB 17 and likely makes it easier for prosecutors to use criminal asset forfeiture in cases involving the growing problem of commercial, sexual exploitation of minors. ***************