BILL ANALYSIS Ó SB 145 Page 1 Date of Hearing: August 30, 2013 ASSEMBLY COMMITTEE ON APPROPRIATIONS Mike Gatto, Chair SB 145 (Pavley) - As Amended: August 21, 2013 Policy Committee: Public SafetyVote:6-0 Urgency: No State Mandated Local Program: Yes Reimbursable: No SUMMARY This bill increases upper level prison sentences for specified crimes related to child pornography by creating new categories of offenses. Specifically, this bill: 1)Provides that when a defendant is convicted of possession of child pornography, punishable by up to one year in county jail, or 16 months, two, or three years in state prison, and one of the following circumstances is established, the offense is punishable by 16 months, two, or five years in state prison: a) The material contains more than 600 images of child pornography and 10 or more images involving a minor under 12. b) The material portrays sexual sadism or masochism involving minors. 2)Redefines the crime of using harmful matter to seduce a child, increasing the penalties from up to one year in county jail, or 16 months, two or three years in state prison, to up to one year in county jail or two, three, or five years in state prison under specified circumstances. FISCAL EFFECT Unknown annual GF costs for longer prison terms, potentially in the range of $400,000. It is difficult to estimate a cost range because (a) persons committed to state prison under the sections amended by this bill could be charged under alternative sections; (b) corrections population-related data does not track SB 145 Page 2 the number of images or specific content, such as sadomasochism. Over the past two years state corrections data indicates about 40 persons per year were committed to state prisons under the sections amended by this bill. For purposes of an order-of-magnitude extrapolation, assuming a current-law base of one year served (with credits), if this bill added an additional year for 15% of the most egregious commitments (six inmate-years), which is consistent with the average upper sentence deviation, annual GF costs would be in the range of $360,000, at full per capita costs of $60,000. In June 20, 2013, a U.S District Court three-judge panel ordered California to reduce its prison population by about 9,000 inmates. The judges took the extreme step of waiving all state and local laws and regulations that might interfere with the order to allow the administration to begin to release inmates. This bill would increase the prison population. COMMENTS 1)Rationale . The author contends upper prison penalties for child pornography are insufficient in California. She also points out that unlike the penalty for child pornography recidivists, these newly defined offenses are maintained as alternate felony/misdemeanors, meaning a prosecutor can charge the defendant with a misdemeanor or a felony, and a judge can deem the crime a misdemeanor. According to the author, "California has the weakest child pornography possession law in the nation. The current sentences range from probation to three years in prison. Child pornography possession can net a life sentence in some states and a 20-year federal sentence where the images are of children under the age of 12 years. Unlike other states, California does not impose higher penalties where the defendant possesses myriad or especially egregious sexual images of children. "According to a 2012 National District Attorneys Association survey, no other state has a lower maximum sentence for the possession of child pornography where aggravating factors, such as number of images, age of the child and images of sexually sadistic images involving children are present. For SB 145 Page 3 example, a person prosecuted in California state court who possesses 10,000 videos of infants and toddlers bound in leather, currently faces a maximum of three years in state prison. He will likely serve half of that, or 18 months?. "Finally, it must be noted that while the bill authorizes increased penalties for egregious crimes, the increased sentences are optional for prosecutors and judges. The legislation still permits a judge in an appropriate case, to give a misdemeanor disposition. The bill only allows a sentence of more than three years in rare, truly egregious cases." 2)Support includes the CA District Attorneys Association and Crime Victims United. According to the Ventura County District Attorney, "SB 145 is narrowly tailored to only increase penalties for those who possess large amounts of images of children that include images of children under the age of 12 engaged in sexual conduct or of children in sadistic or sadomasochistic sexual situations. Amending Penal Code sections 311.2 and 288.2 will provide judges added tools to deal with the worst offenders, while allowing them the same discretion as exists in the current law." 3)Opposition includes the ACLU and the CA Public Defenders Association. According to the CA Attorneys for Criminal Justice, "This bill unnecessarily increases penalties. Current law already imposes significant sentences on those convicted offenses listed in SB 145. There is no indication that these penalties are insufficient. "Furthermore, the SB 145 penalties increase result in the awkward situation of subjecting a person who views improper images in the privacy of his/her own home to a longer sentence than someone who personally commits sex crimes such as molestation. "The crimes listed in SB 145 involve no direct contact with a victim. The viewer of this material did not participate in the banned sex acts. Potentially, the prohibited material could be years or decades old and yet SB 145 would impose a punishment more benefitting a perpetrator of rape than of an act committed in a home with no direct contact with a minor." Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081 SB 145 Page 4