BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1051 Hearing Date: July 7, 2015
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|Author: |Maienschein |
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|Version: |May 4, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Human Trafficking
HISTORY
Source: Alameda County District Attorney; County of San
Diego; San Diego Regional Chamber of Commerce
Prior Legislation:SB 473 (Block) 2014, Vetoed
Support: California Alliance of Child and Family Services;
California Catholic Conference; California District
Attorneys Association; California Narcotics
Officers' Association; California Police Chiefs
Association; California State Sheriffs Association;
California Statewide Law Enforcement Association;
City of Camarillo; Contra Costa County; County of
Los Angeles; Crime Victims United of California;
Junior Leagues of California; Grossmont Union High
School District; Junior League of Napa-Sonoma;
Junior League of San Diego; Los Angeles County
District Attorney; Peace Officers Research
Association of California; San Bernardino County;
San Diego County District Attorney; San Diego
County Sheriff; San Francisco Unified School
District; Urban Counties Caucus
Opposition:California Attorneys for Criminal Justice; Legal
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Services for Prisoners with Children
Assembly Floor Vote: 74 - 0
PURPOSE
The purpose of this bill is to: 1) add human trafficking to
the list of crimes constituting a pattern of gang activity;
and 2) enact a new one-year prison enhancement if the
defendant's underlying offense is either human trafficking
involving a minor, or abduction of a minor for purposes of
prostitution, and the offense was committed on the grounds of
a school, or within 1,000 feet of a school while the school
is open for classes or programs, or minors are using the
facility.
Existing law defines "criminal street gang" as any ongoing
organization, association, or group of three or more
persons, whether formal or informal, having as one of its
primary activities the commission of one or more enumerated
offenses, having a common name or identifying sign or
symbol, and whose members engage in a pattern of gang
activity. (Pen. Code § 186.22, subd. (f).)
Existing law provides that a pattern of criminal gang
activity can be established by a single prior offense and
the crime charged in the current prosecution. (People v.
Gardeley (1996) 14 Cal.4th 605, 625.)
Existing law does not require that a person convicted of
a gang-related crime<1> be shown to be a member of a
gang. The defendant in a gang-related case need not have
been involved in the conduct establishing a pattern of
gang activity. (People v. Gardeley (1996) 14 Cal.4th
605, 621-622.)
Existing law provides that any person who actively
participates in a criminal street gang with knowledge that
------------------------
<1> The term "gang-related" generally means any crime done
for the benefit of, at the direction of, or in association
with a gang, with the specific intent to promote criminal
conduct by gang members. (Pen. Code § 186.22, subd. (b).)
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its members engage in or have engaged in a pattern of
criminal gang activity and who promotes, furthers, or
assists in any felonious conduct by members of the gang,
shall be punished by imprisonment in the county jail for up
to one year, or by 16 months, 2, or 3 years in state prison.
(Pen. Code § 186.22, subd. (a).)
Existing law provides that any person who is convicted of a
felony committed for the benefit of, at the direction of, or
in association with any criminal street gang, with the
specific intent to promote, further, or assist in criminal
conduct by gang members, shall receive a sentence
enhancement or special gang penalty<2>, as specified
immediately below. (Pen. Code § 186.22, subd. (b).)
The (minimum) enhancements (in addition to the prison
term for the underlying felony) are:
§ Felony (other than specified) 2, 3, or 4 years
§ Serious felony 5 years
§ Violent felony 10 years
§ Home invasion robbery life, min. 15 years before
parole eligibility
§ Carjacking life, min. 15 years
§ Shooting from vehicle life, min. 15 years
§ Extortion or witness intimidation life, min. 7 years
Existing law defines a "pattern of criminal gang activity"
as the following:
The commission of two or more of enumerated offenses -
commonly called "predicate offenses;
At least one of the offenses must have occurred after
the effective date of the gang statute and the last of
the offenses occurred within three years of a prior
offense;
The offenses were committed on separate occasions, or by
two or more persons.
The offenses need not result in a conviction, although
-----------------------
<2> An enhancement is a specific term or number of years
added to the standard sentence for a crime. A special
penalty provision is a separate sentencing scheme, not simply
a term of years added to the standard sentence
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prosecutors typically prove the pattern through prior
convictions, as proof of convictions is generally
certain and simple.
Existing law specifies the list of crimes constituting a
pattern of gang activity:
1)Assault with a deadly weapon or by means of force likely to
produce great bodily injury;
2)Robbery;
3)Unlawful homicide or manslaughter;
4)Sale, possession for sale, manufacture, et cetera, of
controlled substances;
5)Shooting at an inhabited dwelling or occupied motor
vehicle;
6)Discharging or permitting the discharge of a firearm from a
motor vehicle;
7)Arson;
8)Intimidation of witnesses and victims;
9)Grand theft, as specified;
10) Grand theft of any firearm, vehicle, trailer, or vessel;
11) Burglary;
12) Rape;
13) Looting, as defined;
14) Money laundering;
15) Kidnapping;
16) Mayhem;
17) Aggravated mayhem;
18) Torture;
19) Felony extortion;
20) Felony vandalism;
21) Carjacking;
22) Sale, delivery, or transfer of a firearm;
23) Possession of a pistol, revolver, or other firearm capable
of being concealed upon the person;
24) Threats to commit crimes resulting in death or great
bodily injury, as defined;
25) Theft and unlawful taking or driving of a vehicle;
26) Felony theft of an access card or account information, as
defined;
27) Counterfeiting, designing, using, attempting to use an
access card, as defined;
28) Felony fraudulent use of an access card or account
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information, as defined;
29) Identity theft, as defined and specified;
30) Wrongfully obtaining Department of Motor Vehicles (DMV)
documentation, as defined;
31) Prohibited possession of a firearm;
32) Carrying a concealed firearm, as specified;
33) Carrying a loaded firearm, as specified. (Pen. Code §
186.22, subd. (e).)
Existing law provides that a pattern of gang activity cannot
be established solely by . . . offenses enumerated in
paragraphs (26) to (30) - crimes involving access card,
identity theft and fraudulent obtaining of DMV
documentation. (Pen. Code § 186.22, subd. (j).)"
Existing law provides that any person who deprives or
violates the personal liberty of another is guilty of human
trafficking if the person specifically intends one of the
following: 1) to effect or maintain a specified felony
commercial sex or prostitution-related offense; 2) commit
extortion; 3) specified child pornography offenses or 4)
obtain forced labor or services. (Pen. Code § 236.1, subd.
(a)-(b).)
Human trafficking for forced or coerced labor or
services is punishable by a prison term of 5, 8 or 12
years and a fine of up to $500,000. (Pen. Code § 236.1,
subd. (b).)
Human trafficking involving forced or coerced sex
trafficking, child pornography or extortion is
punishable by a prison term of 8, 14 or 20 years and a
fine of up to $500,000. (Pen. Code § 236.1, subd. (b).)
Existing law provides that human trafficking of a minor does
not include an element of deprivation of the victim's
liberty. Trafficking of a minor is committed through
inducing, persuading causing a minor to engage commercial sex
acts, child pornography or extortion, or attempting to do so,
is punishable as follows:
5, 8 or 12 years in prison and a fine of up to $500,000.
15-years-to-life and a fine of up to $500,000 if the
offense involved force, threats, coercion, fraud or
deceit, as specified. (Pen. Code § 236.1, subd. (c).)
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Existing law includes these special rules applicable to human
trafficking of a minor:
Whether the defendant caused, induced or persuaded a
minor to engage in a commercial sex act depends on the
totality of circumstances, including the relationship
between the victim and the defendant.
Mistake of fact as to the age of the victim is not a
defense.
Consent by a minor to an act underlying a human
trafficking charge is not a defense. (Pen. Code §
236.1, subd. (d)-(f)
Existing law provides for the following enhancements and
special fines in human trafficking cases:
The court may impose on the defendant an additional
fine of up to $1,000,000. (Pen. Code § 236.4, subd.
(a).)
A defendant who inflicts great bodily injury on the
victim of human trafficking shall be punished by a
consecutive prison term enhancement of 5, 7, or 10
years. (Pen. Code § 236.4, subd. (b).)
A defendant shall receive a consecutive prison
enhancement term of 5 years for each prior human
trafficking conviction.
Existing law provides that all fines imposed in trafficking
offenses shall be deposited into the Victim Witness
Assistance Fund, to be paid or granted as follows:
70% to public agencies and non-profits to provide
direct victim services.
30% to law enforcement and prosecutors in
jurisdiction where charges filed for prevention, witness
protection and rescue. (Pen. Code § 236.4, subd. (d).)
Existing law defines "unlawful deprivation of liberty" as
sustained and substantial restriction of another's liberty
accomplished through fraud, deceit, coercion, violence,
duress, menace or a credible threat of injury to the victim
or another person. (Pen. Code § 186.22, subd. (d).)
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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. (Civ. Code §
52.5.)
Existing law provides that any person who takes away any
other person under the age of 18 years from the father,
mother, or guardian, or other person, without their consent,
for the purpose of prostitution, is punishable by
imprisonment in the state prison and a fine not exceeding
$2,000. (Pen. Code, § 267.)
Exiting law includes numerous enhancements or special penalty
provisions for crimes committed on or near schools or that
pose particular danger to children:
Selling or providing specified drugs to a minor on
school grounds: enhancement of 5, 7, or 9 years.
(Health & Saf. Code § 11353.5.)
Manufacturing methamphetamine or PCP in a place where
a person under the age of 16- resides: enhancement of 2
years and 5 years where great bodily injury occurs.
(Health & Saf. Code § 11379.7.)
Using minor for drug transactions involving
methamphetamine, PCP, LSD on grounds of a church,
school, playground, et cetera, (Health & Saf. Code §
11380.1.): enhancement of 1 year (church, playground, et
cetera); 2 years (school); 1, 2 or 3 years (minor used
was four years younger than the perpetrator).
Existing law includes the "Gun-Free School Zone Act," which
prohibits possession of a firearm on the grounds of a school
or within 1,000 feet of a school without the written
permission of the superintendent or his or her
representative.<3> Penalties are imposed pursuant to Section
1170, subdivision (h), such that eligible defendants receive
jail felony terms.
-------------------------
<3> Exceptions apply for otherwise lawful possession in a
private residence.
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Possession on school grounds is a felony, with a term
of two, three or five years.
Possession within 1,000 feet of school grounds is a
felony, with a term of two, three or five years where
the defendants has a specified prior conviction, if the
person is prohibited from possessing a firearm, per se,
or the firearm is concealable on the person.
The crime is an alternate felony-misdemeanor, with a
felony term of two, three or five years, in other cases.
(Pen. Code § 626.9. subds. (a)-(f).)
This bill:
Adds human trafficking to the list of offenses that
may be used to establish a pattern of criminal activity,
and thus the existence of a gang.
Provides that any person who is convicted of human
trafficking, where the offense was committed against a
minor, or abduction of a minor for the purpose of
prostitution, where any part of the violation takes
place on the grounds of, or within 1,000 feet of, a
public or private elementary, vocational, junior high,
or high school, during hours that the school is open for
classes or school-related programs or at any time when
minors are using the facility, shall receive, in
addition to any other penalty imposed, punishment of one
year in the state prison.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health
care to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as
a content-neutral, provisional measure necessary to ensure
that the Legislature does not erode progress in reducing
prison overcrowding.
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On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015;
and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as
"of February 11, 2015, 112,993 inmates were housed in the
State's 34 adult institutions, which amounts to 136.6% of
design bed capacity, and 8,828 inmates were housed in
out-of-state facilities. This current population is now
below the court-ordered reduction to 137.5% of design bed
capacity."( Defendants' February 2015 Status Report In
Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD
PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn.
omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part
and Denying in Part Defendants' Request For Extension of
December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC),
3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).
The Committee's consideration of bills that may impact the
prison population therefore will be informed by the following
questions:
Whether a proposal erodes a measure which has
contributed to reducing the prison population;
Whether a proposal addresses a major area of public
safety or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which
there is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for this Bill
According to the author:
According to recent media stories in the San Diego
Union-Tribune and Los Angeles Times regarding a
cross-country sex-trafficking ring run out of San
Diego County, 22 gang members and associates were
charged in the case where about 100 victims were
identified, many of whom were recruited from their
school. The large scope of this problem and its
prevalence has led local school districts to begin
training their employees to spot signs and
intervene. The Grossmont Union High School District
has even developed a manual to aid with training on
spotting Human Trafficking and working with law
enforcement. The problem of Human Trafficking and
the use of schools to recruit victims is growing
across the country, and here in San Diego.
Current law provides that any person who actively
participates in any criminal street gang with
knowledge that its members engage in or have
engaged in a pattern of criminal gang activity is
subject to certain sentencing. The definition of a
criminal street gang triggers enhanced penalties
and bail, affects probation and parole conditions,
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augments law enforcement tools, and affects the way
the case is handled by all stakeholders in the
system. Penal Code 186.22 defines a criminal gang
and lists 33 offenses that are associated with gang
activity. Currently that list does not include
human trafficking.
2.Existing Law; This Bill
A "criminal street gang" is an organization of three or more
persons, with a common name or identifying symbols, whose
members engage in a "pattern of gang activity" as one of its
primary activities. A pattern of gang activity means the
commission of two or more of a list of specified offenses
that are committed within at least a three-year period. This
bill adds human trafficking to the 33 current crimes that can
be part of a pattern of gang activity. The 33 crimes that
can be alleged as establishing a pattern of gang activity are
commonly describe by courts and practitioners as "predicate"
gang crimes, because they must be established before gang
penalties can be imposed.
Once the existence of the gang is shown, a defendant who
commits any crime at the direction of, in association with,
or for the benefit of the gang will receive substantially
enhanced penalties. Depending on the crime of conviction,
the additional penalties for any gang-related felony range
from a two year enhancement to a term of at least 15-years to
life. A non-gang member who commits a crime in association
with others who are gang members will receive a gang
punishment, as long as the crime promotes criminal conduct by
gang members.
This bill does not change gang penalties. Rather, it expands
the definition of a gang and, with that expansion, furthers
the scope of sentencing available under the California Street
Terrorism Enforcement and Prevention Act. In addition to
sentencing, this bill would impact the admissibility of
evidence in these kinds of cases. A prosecutor generally is
prohibited from introducing evidence of prior crimes
committed by the defendant or associates of the defendant
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that are not charged in the current offense. This evidence
is inadmissible because jurors might focus on the prior crime
and not the evidence in the current case. (People v.
Thompson (1980) 27 Cal.3d 393.) However, where a defendant
is charged with committing a crime for the benefit of a gang,
the prosecutor must establish beyond a reasonable doubt that
members of the gang have engaged in predicate crimes as a
primary activity. The prosecutor can present evidence that
the defendant or his gang associates committed any of the
crimes in the predicate crime list, regardless of the crime
charged in the current case. If this bill is enacted, a
prosecutor alleging that a human trafficking offense is
gang-related can introduce detailed evidence relating to
prior crimes.
3.Expansion of Gang Statutes over Time - Predicate Offenses
The California Street Terrorism Enforcement and Prevention
Act (STEP Act) was passed in 1988. The legislative findings
as to the purpose of the STEP Act stated: "[I]t is the right
of every person . . . to be secure and protected from fear,
intimidation, and physical harm caused by the activities of
violent groups and individuals." (Pen. Code § 186.21,
italics added.)
Amendments increasing the predicate crimes and penalties have
been steadily added to this law. The original predicate
offenses included assault (Pen. Code § 245) robbery, unlawful
homicide or manslaughter, trafficking in controlled
substances, shooting at an inhabited vehicle (added in 1991),
arson and witness intimidation. Over time, the offenses of
grand theft of a vehicle, grand theft exceeding $10,000,
burglary, rape, looting, money laundering, kidnapping,
mayhem, torture, felony extortion, felony vandalism and
carjacking, firearm trafficking and handgun possession,
criminal threats (Pen Code § 422) and theft or taking of a
vehicle have been added. Proposition 21 (March 2000 primary
election) greatly increased the enhancement imposed where a
defendant committed a felony for the benefit of a gang. SB
444 (Ackerman), Chapter 482, Statutes of 2005, added access
card theft and related crimes to the predicate gang crimes
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list. (A pattern of committing access card crimes cannot
alone establish the existence of a gang. The pattern must be
shown by access card crimes and commission of at least one
other predicate gang offense.)
4.Enhancement for Human Trafficking or Abducting a Minor for
Prostitution on the Grounds of, or within 1,000 feet of a
School
This bill would direct the court to impose a sentence
enhancement of one year in prison if the defendant has been
convicted of human trafficking, or abduction of a minor for
purposes of prostitution, and the crime occurred on the
grounds of a school, or within 1,000 feet of a school. Human
trafficking of a minor includes a relatively long list of
crimes involving commercial sex, including prostitution and
child pornography. If the minor is brought into such
activities through "force, fear, fraud, deceit, coercion,
violence, duress, menace, or threat of unlawful injury to the
victim or to another person," the penalty is a term of
15-years-to-life in prison and a fine of up to $500,000.
With mandatory penalty assessments, a fine of $500,000 is
actually a fine of over $2,000,000. It is hard to imagine
that a trafficker could lure a minor into commercial sex
trade without at least deceit or fraud. That is, if the
trafficker misrepresented what the minor would be doing or
the conditions under which they would be done, that would
clearly appear to be fraud and deceit.
Under existing law, perpetrators face a life sentence or a
long determinate prison term and a very large fine for human
trafficking that involves bringing a minor into the
commercial sex trade. It would appear that if very severe
felony penalties would not deter a potential human
trafficker, an additional year in prison would be of little
consequence. Further, many, if not all, cases where a minor
under the age of 14 is abducted for purposes of prostitution
would constitute kidnapping for purposes of engaging in
sexual conduct. That form of kidnapping if punishable by a
prison term of 5, 8 or 11 years if the minor is under the age
of 14. Kidnapping per se - taking a person by fore or fear -
is punishable by a prison term of 3, 5 of 8 years. (Pen.
Code §§ 207-208.)
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The punishment for human trafficking of a minor, when the
crime does not involve some sort of deceit, coercion or
force, is still relatively severe - 5, 8 or 12 years and a
fine of up to $500,000 (again over $2,000,000 with mandatory
penalty assessments). If this bill is enacted, the prison
term could perhaps be 13 years instead of 12 in a determinate
sentence. For a life term, the defendant would be eligible
for parole in 16 years, not 15. Again, it is doubtful that a
possible additional year in prison would change a
perpetrator's decision to engage in human trafficking of a
minor in light of the severe existing penalties.
California sentencing law is so complex that an enhancement
for committing human trafficking on or near a school may not
necessarily result in additional punishment. In some cases,
imposition of the enhancement could result in a lower
penalty. The imposition of the prison term for a crime and
enhancements attached to that term require the court to make
a series of inter-related decision. The process becomes
particularly elaborate when the defendant was convicted of
multiple crimes and numerous enhancements apply.
For this bill, the most important sentencing rule is the
prohibition on "dual use of facts" - the use of one fact to
impose more than one punishment. A close reading of many
enhancements would reveal that they could also be used as
factors in aggravation of the base term - the stated penalty
"triad." The sentencing triad for the less egregious form of
human trafficking of a minor is 5, 8 or 12 years. The
sentencing triad for abducting a minor for prostitution is 16
months, 2 years or 3 years. Penal Code Section 1170,
subdivision (b), provides, in relevant part:
When a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the
choice of the appropriate term shall rest within
the sound discretion of the court. ?The court shall
set forth on the record the reasons for imposing
the term selected and the court may not impose an
upper term by using the fact of any enhancement
upon which sentence is imposed under any provision
of law. A term of imprisonment shall not be
specified if imposition of sentence is suspended.
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(Italics and bold font added.)
Under current law, where a defendant has been convicted
of human trafficking of a minor without force, coercion
or deceit, the court would impose a term of 5, 8 or 12
years. Penal Code Section 1170.1, subdivision (d)
provides as to the imposition of the appropriate term:
If an enhancement is punishable by one of three
terms, the court shall impose the middle term
unless there are circumstances in aggravation or
mitigation, and state the reasons for its sentence
choice, other than the middle term, on the record
at the time of sentencing.
Thus, the court would sentence a person convicted non-forced,
non-coerced, non-fraudulent human trafficking to a term of 8
years unless there are factors in mitigation or aggravation.
If the offense occurred on or near a school, the prosecutor
would almost certainly argue that the school location or
proximity of the crime was a factor in aggravation. If the
enhancement described in this bill applied and there were no
factors in mitigation and no other factors in aggravation,
the following would apply:
The court could rely on the school location or
proximity of the crime as a factor in aggravation and
impose the 12-year term. The court could not impose
punishment on the enhancement defined by this bill.
The court could impose the enhancement defined in
this bill for human trafficking committed on or near a
school and impose the middle term of 8 years and the
1-year enhancement, for a term of 9-years. The court
could not impose the upper term based on the school
location or proximity factor.
This analysis would also apply to a conviction for
abduction for purposes of prostitution. The fact that
the crime occurred on or near a school could be used by
the trial court as either a factor in aggravation or to
impose the enhancement, but not both.
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Finally, it appears that most cases of abduction for
purposes of prostitution of a minor could be charged as
human trafficking in any event. Human trafficking
includes the elements of inducing, causing or persuading
a person to engage in a commercial sex act. However,
those elements are also generally the elements of
abduction for prostitution. Abduction for prostitution
is defined in terms of taking a minor from her or his
parent of guardian, it is difficult to imagine many
cases where some coercion, force or deceit would not
have been used against the minor.
5. Research on Sentences as a Deterrent to Crime
Criminal justice experts and commentators have noted that,
with regard to sentencing, "a key question for policy
development regards whether enhanced sanctions or an enhanced
possibility of being apprehended provide any additional
deterrent benefits.
Research to date generally indicates that increases
in the certainty of punishment, as opposed to the
severity of punishment, are more likely to produce
deterrent benefits.<4>
A comprehensive report published in 2014, entitled The
Growth of Incarceration in the United States, discusses
the effects on crime reduction through incapacitation
and deterrence, and describes general deterrence
compared to specific deterrence:
A large body of research has studied the effects of
incarceration and other criminal penalties on
crime. Much of this research is guided by the
hypothesis that incarceration reduces crime through
incapacitation and deterrence. Incapacitation
refers to the crimes averted by the physical
isolation of convicted offenders during the period
--------------------
<4> Valerie Wright, Ph.D., Deterrence in Criminal Justice
Evaluating Certainty vs. Severity of Punishment (November
2010), The Sentencing Project
(http://www.sentencingproject.org/doc/Deterrence%20Briefing
%20.pdf.)
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of their incarceration. Theories of deterrence
distinguish between general and specific behavioral
responses. General deterrence refers to the crime
prevention effects of the threat of punishment,
while specific deterrence concerns the aftermath of
the failure of general deterrence-that is, the
effect on reoffending that might result from the
experience of actually being punished. Most of
this research studies the relationship between
criminal sanctions and crimes other than drug
offenses. A related literature focuses
specifically on enforcement of drug laws and the
relationship between those criminal sanctions and
the outcomes of drug use and drug prices.<5>
In regard to deterrence, the authors note that in "the
classical theory of deterrence, crime is averted when
the expected costs of punishment exceed the benefits of
offending. Much of the empirical research on the
deterrent power of criminal penalties has studied
sentence enhancements and other shifts in penal policy.
. . .
Deterrence theory is underpinned by a rationalistic
view of crime. In this view, an individual
considering commission of a crime weighs the
benefits of offending against the costs of
punishment. Much offending, however, departs from
the strict decision calculus of the rationalistic
model. Robinson and Darley (2004) review the
limits of deterrence through harsh punishment.
They report that offenders must have some knowledge
of criminal penalties to be deterred from
committing a crime, but in practice often do
--------------------
<5> The Growth of Incarceration in the United States
(2014), Jeremy Travis, Bruce Western and Steve Redburn,
Editors, Committee on Causes and Consequences of High Rates
of Incarceration, The National Research Council, p. 131
(citations omitted)
(http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.
pdf,)
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not."<6>
Members may wish to discuss whether the "rationalistic
view" of crime described above likely would apply to
persons who abduct minors for purposes of prostitution
from schools, commit human trafficking of a minor or
engage in human trafficking as gang activity. That is,
would sentencing enhancements and changes in the
definition of a gang proposed by this bill be known by
these offenders and, if so, whether the additional time
or expansion of the gang law would discourage commission
of the crime.
The authors of the 2014 report discussed above conclude
that incapacitation of certain dangerous offenders can
have "large crime prevention benefits," but that
incremental, lengthy prison sentences are ineffective
for crime deterrence:
Whatever the estimated average effect of the
incarceration rate on the crime rate, the available
studies on imprisonment and crime have limited
utility for policy. The incarceration rate is the
outcome of policies affecting who goes to prison
and for how long and of policies affecting parole
revocation. Not all policies can be expected to be
equally effective in preventing crime. Thus, it is
inaccurate to speak of the crime prevention effect
of incarceration in the singular. Policies that
effectively target the incarceration of highly
dangerous and frequent offenders can have large
crime prevention benefits, whereas other policies
will have a small prevention effect or, even worse,
increase crime in the long run if they have the
effect of increasing postrelease criminality.
--------------------
<6> Id. at 132-133.
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Evidence is limited on the crime prevention effects
of most of the policies that contributed to the
post-1973 increase in incarceration rates.
Nevertheless, the evidence base demonstrates that
lengthy prison sentences are ineffective as a crime
control measure. Specifically, the incremental
deterrent effect of increases in lengthy prison
sentences is modest at best. Also, because
recidivism rates decline markedly with age and
prisoners necessarily age as they serve their
prison sentence, lengthy prison sentences are an
inefficient approach to preventing crime by
incapacitation unless they are specifically
targeted at very high-rate or extremely dangerous
offenders. For these reasons, statutes mandating
lengthy prison sentences cannot be justified on the
basis of their effectiveness in preventing
crime.<7>
Members may wish to discuss whether the sentence
enhancement proposed by this bill and the expansion of
the definition of a gang would provide any appreciable
crime deterrent benefits.
BASED ON THE RESEARCH DESCRIBED ABOVE, WOULD THE
SENTENCING ENHANCEMENTS AND EXPANSION OF THE DEFINITION
OF A GANG PROPOSED BY THIS BILL IMPROVE PUBLIC SAFETY?
IN A COST-BENEFIT ANALYSIS, WOULD THE ADDED COSTS OF
INCARCERATION FROM THE EXPANSION OF THE SENTENCING FOR
COMMITTING CRIMES ON OR NEAR SCHOOL GROUNDS AND THE
EXPANSION OF THE DEFINITION OF A GANG BE OUTWEIGHED BY
ITS PUBLIC SAFETY BENEFIT, EITHER THROUGH INCAPACITATION
OR DETERRENCE?
6.Prior Legislation
Like this bill, last session AB 473 (Block) also proposed to
add human trafficking to the California Street Terrorism
Enforcement and Prevention Act. That measure, which passed
this Committee (7-0), was vetoed. Governor Brown stated:
-------------------------
<7> Id. at 155-156 (emphasis added).
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I am returning Senate Bill 473 without my
signature.
Under current law, human trafficking convictions
impose substantial punishment, up to 20 years for
sex trafficking offenses and 15 years-to-life for
certain crimes involving children. These sentences
are more than three times the punishment that
existed two years ago. SB 473 would add yet another
set of enhancements, the third in nine years. No
evidence has been presented to support these new
penalties
Today I have signed AB 1610, AB 1791, SB 955 and SB
1388, bills that will solidly enhance enforcement
of human trafficking laws through use of wiretap,
ensuring the availability of a victim's testimony
at trial and strengthening penalties for certain
human trafficking crimes involving minors.
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