BILL ANALYSIS �
SB 145
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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
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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
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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
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