BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SB 145 (Pavley) - Sex offenders: child pornography.
Amended: April 2, 2013 Policy Vote: Public Safety 7-0
Urgency: No Mandate: Yes
Hearing Date: May 23, 2013 Consultant: Jolie Onodera
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: SB 145 would increase the prison terms for
aggravated forms of possession of child pornography, and would
redefine the crime and associated punishments for the use of
harmful matter to seduce a child, as specified.
Fiscal Impact (as approved on May 23, 2013):
For every 25 percent of annual convictions to state prison
for possession of child pornography warranting the higher
sentences, increased state incarceration costs in the range
of $480,000 to $960,000 (General Fund), potentially
compounding to $1.9 million for overlapping sentences, for
the multi-year increase to the prison term triad under the
felony penalty of the wobbler for aggravated forms of child
pornography possession.
Unknown, increased annual state incarceration costs in the
hundreds of thousands of dollars (General Fund) to the
extent longer sentences are served in state prison for the
crime of the use of harmful matter to seduce a child. To the
extent additional cases are prosecuted in state court under
the increased penalty structure, costs could potentially be
higher.
Background: On February 27, 2013, the U.S. Sentencing Commission
issued its Report to the Congress: Federal Child Pornography
Offenses, which examines federal sentencing policy in child
pornography cases. The executive summary highlighted, "All child
pornography offenses, including the simple possession of child
pornography, are extremely serious because they both result in
perpetual harm to victims and validate and normalize the sexual
exploitation of children."
The report noted that although still only a small percentage of
the overall federal caseload (2 percent as of 2010), child
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pornography prosecutions have grown significantly during the
past decade and now account for nearly 2,000 federal cases each
year. Under federal law, the statutory penalty for possession of
child pornography ranges from 0 to 10 years, or up to 20 years,
depending on the age of the victim (Report to Congress: Federal
Child Pornography Offenses, Executive Summary, v).
Existing state law provides that the possession of child
pornography is an alternate felony-misdemeanor, punishable by
imprisonment in state prison for 16 months, two or three years,
or in a county jail for up to one year, or by a fine not
exceeding $2,500, or by both the fine and imprisonment. If a
defendant has been previously convicted of any crime for which
the defendant must register as a sex offender, the crime of
possession of child pornography is a felony punishable by a term
or two, four, or six years in state prison. This bill would
increase the prison term for recidivists with prior convictions
requiring sex offender registration and for initial convictions
with aggravating factors to three, five, or seven years.
Under existing state law, a person who distributes material or
sends "harmful matter" (obscene material from the perspective of
a minor) to a minor by any means, including but not limited to
telephone messages, electronic mail, or the internet, with the
intent to seduce the minor, as specified, is guilty of an
alternate felony-misdemeanor, punishable by imprisonment in
state prison for 16 months, two or three years, or in a county
jail for up to one year. A subsequent conviction is a felony
punishable by imprisonment in state prison for 16 months, two or
three years. This bill would revise and recast the crime of
sending harmful matter to seduce a child and raise the felony
sentence under the wobbler to a prison term of three, five, or
seven years for the most serious offenses and impose graduated
penalties for less egregious acts.
Proposed Law: This bill would increase the prison terms for
aggravated forms of possession of child pornography, and would
redefine the crime and associated penalties for the use of
"harmful matter" to seduce a child. Specifically, this bill:
Raises the prison term for possession of child pornography
from 2, 4, or 6 years, to 3, 5, or 7 years in state prison
for cases where the defendant has been previously convicted
of a crime for which sex offender registration is required.
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Raises the felony penalty for possession of child
pornography under the existing alternate felony-misdemeanor
(wobbler) from 16 months, 2 or 3 years, to 3, 5, or 7 years
if one of the following factors exists:
o The defendant possessed more than 600 images, 10 or
more of which depicted prepubescent minors or minors
under 12 years of age.
o The images portrayed sexual sadism or sexual
masochism, as defined.
Raises the felony penalty from a prison term of 16 months,
2 or 3 years to 3, 5 or 7 years for the wobbler of using
harmful matter (obscenity for a minor) to induce a child to
engage in specified physical sexual conduct if the harmful
matter depicted minors engaged in sexual conduct, as
defined.
Establishes graduated penalties for a defendant who used
less egregious sexual material and intended to induce the
minor to engage in less egregious sexual conduct.
Staff Comments: By increasing the prison sentences for various
crimes as specified above, the provisions of this bill will
result in ongoing increased state incarceration costs, the
magnitude of which will be dependent on the number of
convictions, the degree of culpability and dangerousness in each
particular case, and the sentencing decisions made at the
discretion of the court.
Based on CDCR data for the past three years (2010-2012), the
estimated number of commitments to state prison under PC §
311.11(b) for convictions for possession of child pornography by
defendants previously convicted and required to register as sex
offenders is 28 inmates per year. Assuming an increase in prison
terms from 2, 4, or 6 years to 3, 5, or 7 years could increase
annual state prison costs in the range of $800,000 to $1.6
million, assuming the inmates serve half to all of the increased
prison sentence.
Arrest data from the Department of Justice reflects 555 felony
arrests in 2012 under PC § 311.11(a), however the projected
annual number of commitments to state prison for convictions for
possession of child pornography is 32 inmates per year based on
historical data. Assuming an increase in prison terms from 16
months, 2 or 3 years to 3, 5, or 7 years for the most egregious
cases would increase annual state prison costs in the range of
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$950,000 to $1.9 million, potentially increasing to $5.7 million
for overlapping sentences, to the extent 25 percent of cases
warrant the higher sentences. To the extent the proportion of
impacted cases is higher or lower, the costs would be affected
accordingly.
The number of commitments to state prison under PC § 288.2 for
convictions for use of harmful matter to seduce a minor have
been no more than 10 inmates over the past three years. Assuming
an increase in prison terms from 16 months, 2, or 3 years to 3,
5, or 7 years, or to any of the graduated sanctions could
increase annual state prison costs in the hundreds of thousands
of dollars (General Fund), the amount of which would be
dependent on the number of cases, the seriousness of each
particular case and the sentencing decision of the court. In
addition, to the extent an increased number of cases are
prosecuted at the state level under the new sentencing structure
that previously would have been pursued in federal court
pursuant to higher penalties, the costs to the state could also
be greater than projected.
California's prison system continues to operate under federal
oversight as it addresses the issues of prison overcrowding and
constitutionally adequate health care in its 33 facilities. On
April 11, 2013, the three-judge panel denied the state's motion
to vacate/modify the inmate population cap and ordered the state
to provide a list of proposed population reduction measures
within 21 days of the order (May 2, 2013). To the extent this
measure exacerbates prison overcrowding due to lengthier prison
terms, this bill creates future cost pressure (General Fund) to
potentially utilize additional contract beds, out-of-state
facilities, or capital outlay in order to comply with the
court-ordered population limit.
Author amendments remove the sentence enhancement for prior
convictions requiring sex offender registration.
Committee amendments reduce the triad sentence enhancements for
aggravated forms of possession of child pornography and the use
of harmful matter, as specified, from three, five, or seven
years to two, four, or six years.
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