BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1675       Hearing Date:    June 21, 2016    
          
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          |Author:    |Mark Stone                                           |
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          |Version:   |June 9, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                         Subject:  Juveniles:  Prostitution



          HISTORY

          Source:   Equality California

          Prior Legislation:None

          Support:  American Civil Liberties Union of California;  
                    California Attorneys for Criminal Justice; California  
                    Public Defenders Association; Legal Services for  
                    Prisoners with Children 

          Opposition:California District Attorneys Association; San Diego  
          District Attorney

          Assembly Floor Vote:                 76 - 0


          PURPOSE

          The purpose of this bill is to require that minors accused of  
          prostitution-related crimes be subject to informal probation in  
          lieu of a formal delinquency petition, as specified.   

          Under current law, the purpose of juvenile court law "is to  
          provide for the protection and safety of the public and each  








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          minor under the jurisdiction of the juvenile court and to  
          preserve and strengthen the minor's family ties whenever  
          possible, removing the minor from the custody of his or her  
          parents only when necessary for his or her welfare or for the  
          safety and protection of the public."  (Welfare and Institutions  
          Code ("WIC") § 202.)

          Current law generally authorizes probation to provide a period  
          of informal probation for a period of up to six months in lieu  
          of filing a delinquency petition for a minor who appears to be  
          likely to come within the delinquency jurisdiction of the  
          juvenile court, as specified.  (WIC § 654.)

          Current law generally authorizes courts to order minors subject  
          to a delinquency petition with a period of informal or formal  
          probation, as specified. (WIC §§ 654.2, 725 and 727.)

          This bill would enact a new law to require that, in lieu of  
          requesting that a petition be filed by the prosecuting attorney  
          to declare the minor a delinquent ward of the court, probation  
          shall provide informal probation for the minor "and delineate a  
          specific program of supervision for the minor" 

          where a minor is alleged 1) to have solicited, agreed to engage  
          in, or who engages in any act of prostitution, as defined in  
          Penal Code section 647(b), or 2) to have loitered with intent to  
          commit prostitution, as defined in Penal Code section 653.22.
          This bill would provide that in addition to providing informal  
          probation supervision in these cases, the probation officer  
          would be required to make a report to the county child welfare  
          agency if the officer has reason to believe the minor is a  
          dependent ward of the juvenile court, as specified.  

          This bill would require the child welfare agency to investigate  
          the report, as specified.  

          Current law excludes minors from being eligible for informal  
          probation supervision for certain alleged offense categories, as  
          specified.  (WIC § 654.3.)

          This bill would provide that a minor who "will be participating  
          in the program of supervision" required by this bill would be  
          eligible for informal probation, as specified.   










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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several 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.   

          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 December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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 must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  









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          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  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.



          COMMENTS

          1.Stated Need for This Bill

          The author states:

               While California law states that children cannot  
               consent to sex, children continue to be convicted as  
               prostitutes.  The majority of these children are  
               trafficked and forced, induced or coerced into  
               commercial sex.  Others are runaways who find  
               themselves on the streets with no other means to  
               survive.  All are victims. 

               Fortunately, children who are involved in prostitution  
               are beginning to be treated and provided services as  
               victims.  Task forces, programs and services have been  









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               put into place, and even scarce public dollars have  
               been allocated to help these children.  However, the  
               fact remains that these children will always be viewed  
               -- and more importantly, treated -- as criminals as  
               long as they are wards of delinquency and can be  
               prosecuted as prostitutes.  

               AB 1675 would continue to allow for the detainment or  
               arrest of a minor who law enforcement believes is  
               engaging in prostitution.  

               However, the bill provides that, instead of facing  
               prosecution, the minor can receive much-needed  
               support, including but not limited to, mental health  
               and educational services.  

          2.Informal Supervision Rather Than Wardship; What This Bill  
            Would Do

          Juvenile delinquency actions are begun by the filing of a  
          petition under Welfare and Institutions Code section 602.   
          The petition alleges criminal offenses and is brought by  
          the district attorney.

          In lieu of the filing of a petition, current law authorizes  
          probation to provide a period of informal supervision,  
          known as informal probation, for relatively low level  
          offenses.  (WIC §§ 654, 654.2.)  If the probation officer  
          concludes that the minor is within the juvenile court's  
          jurisdiction, or likely soon will be, the officer can  
          delineate a specific program of supervision for the minor  
          for up to six months to try to adjust the situation that  
          brings the minor within the juvenile court's jurisdiction.  
          (WIC § 654; In re Adam R. (1997) 57 Cal.App.4th 348.) 

          The discretion to initially determine whether to institute  
          informal supervision against the minor rests with the  
          probation officer and cannot be delegated to the  
          prosecution. (Charles S. v. Superior Court (1982) 32 Cal.3d  
          741, 746.)

          Informal supervision is a voluntary contract between the  
          probation officer, the minor, and the parents or guardians.  
          The juvenile may be placed on informal probation for up to  









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          six months. If the juvenile successfully completes this  
          program, the case is then closed.  If the juvenile is  
          unsuccessful at any time during the six-month period, the  
          probation department may make a referral to the district  
          attorney's office for a formal petition to the juvenile  
          court.  (WIC § 654.)  Importantly, the court cannot require  
          a minor to admit the truth of the petition before granting  
          informal supervision.  (In re Ricky J. (2005) 128  
          Cal.App.4th 783.)  

          This bill would require probation to put a minor alleged to  
          have engaged in a prostitution crime on informal probation  
          in lieu of requesting that a delinquency petition be filed  
          on the minor.  Unlike current law, which authorizes but  
          does not require informal probation in lieu of a formal  
          filing, this bill would require informal probation for  
          prostitution offenses.  The bill would revise the existing  
          provision that excludes minors who have previously been on  
          informal probation from getting it again, to provide that  
          this exclusion would not apply to a minor "who will be  
          participating" in informal probation because of a  
          prostitution offense. The bill also would require probation  
          to make a report to county child welfare, as specified.

          3.Background: Commercial Sexual Exploitation of Minors

          Addressing the treatment of children who engage in acts of  
          prostitution has been an issue policy makers have been  
          examining closely in recent years.  Earlier this year this  
          Committee passed SB 1322 (Mitchell), which would  
          decriminalize prostitution committed by minors.  That bill  
          is pending in the Assembly.  

          As explained in this Committee's analysis of SB 1322,  
          recent years have seen a great increase in awareness of and  
          concerns about minors - most often girls - engaged in  
          commercial sex activities.  Organized, coerced trafficking  
          has received the most attention.  Sex trafficking has been  
          described as sexual slavery.  Trafficked minors are  
          isolated, controlled by and made dependent on their  
          exploiters, and can even be perversely loyal because of the  
          manufactured dependency. 

          A 2013 report on commercial sexual exploitation of minors  









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          published by the Institute of Medicine (supported by a  
          grant between the National Academy of Sciences and the U.S.  
          Department of Justice) concluded in part:

               It is important to understand that commercial sexual  
               exploitation and sex trafficking of minors are  
               manifestations of child abuse. By doing so, one can  
               gather valuable insights from the nation's work on  
               child abuse and neglect over the past several decades  
               and gain a better understanding of the challenges that  
               must be overcome to confront these crimes. . . . 

               This report reveals that the complex needs of these  
               young people are not being adequately met by either  
               criminal justice or child protection systems. Further,  
               mandatory reporting of suspected cases will not help  
               these youth if the resources they need are  
               unavailable. It is time to refocus the perspective on  
               these problems and direct efforts toward preventing  
               commercial sexual exploitation and sex trafficking of  
               minors; identifying youth at risk and those who have  
               become ensnared; and developing effective, evidence-  
               and trauma-informed approaches that can enable them to  
               reclaim their lives.

               . . .  The committee's ultimate goals in this report  
               are to identify what is known about commercial sexual  
               exploitation and sex trafficking of minors and to  
               define strategies for improving prevention and  
               identification of and interventions for victims and  
               survivors of these crimes. As noted in Chapter 1, the  
               committee was guided in its work by three principles:

                1.      Commercial sexual exploitation and sex  
                  trafficking of minors should be understood as acts  
                  of abuse and violence against children and  
                  adolescents.

                2.      Minors who are commercially sexually  
                  exploited or trafficked for sexual purposes should  
                  not be considered criminals.

                3.      Identification of victims and survivors and  
                  any intervention, above all, should do no further  









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                  harm to any child or adolescent.<1>

          This report included the following recommendation:

               All national, state, local, tribal, and territorial  
               jurisdictions should develop laws and policies that  
               redirect young victims and survivors of commercial  
               sexual exploitation and sex trafficking from arrest  
               and prosecution as criminals or adjudication as  
               delinquents to systems, agencies, and services that  
               are equipped to meet their needs. Such laws should  
               apply to all children and adolescents under age 18. 

               Drawing on its analysis of federal, state, tribal, and  
               local laws and their application . . . , as well as  
               new understandings of adolescent development . . . ,  
               the committee concluded that current laws are  
               inadequate to prevent, identify, and respond to  
               commercial sexual exploitation and sex trafficking of  
               minors. Therefore, the committee urges states and  
               local, tribal, and territorial jurisdictions to  
               develop laws that, at a minimum,

                        prevent commercially sexually exploited  
                    children and adolescents from being arrested or  
                    prosecuted for prostitution;

                        provide victims and survivors of commercial  
                    sexual exploitation and sex trafficking of minors  
                    with needed support services; and

                  apply to children and adolescents at least up to  
                 age 18.

               These laws will need to be evaluated over time to  
               determine best practices. Further, laws and practices  
               that divert victims from the criminal or juvenile  
               justice system to the child welfare system to receive  
               supportive services could include older adolescents  
               ----------------------

          <1>   IOM (Institute of Medicine) and NRC (National Research  
          Council). 2013. Confronting commercial sexual exploitation and  
          sex trafficking of minors in the United States. Washington, DC:  
          The National Academies Press.








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               (over age 18) who have been victims of commercial  
               sexual exploitation or sex trafficking since  
               childhood. The committee believes a number of other  
               recent legislative initiatives may also merit further  
               consideration, with care being taken to avoid adverse  
               consequences for victims and survivors while  
               maintaining strong penalties for exploiters. These  
               initiatives include decriminalization of prostitution  
               for minors in recognition that they are victims, not  
               criminals. . . . . (emphasis in original)<2> 

          Members may wish to discuss whether, in cases where a minor  
          is alleged to have violated a prostitution crime, informal  
          probation rather than the filing of a delinquency petition  
          should be required, as proposed by this bill. 

          1.Opposition

          The San Diego District Attorney's office opposes this bill,  
          stating in part:

               The juvenile justice system's primary goal is for  
               rehabilitation, in addition to accountability, and  
               protecting the public.  Already, . . . the probation  
               department has the authority to proceed informally,  
               place a juvenile on a voluntary contract, and divert  
               the juvenile from delinquency proceedings by offering  
               services.  While counseling is an important first step  
               in rehabilitating those who commit these violations,  
               without the possibility of delinquency proceedings in  
               the event of repeated failures at diversion, the bill  
               eliminates an important incentive to succeed. . . .

               . . . (T)he message sent to juveniles, that  
               prostitution is not a crime, may have the unintended  
               consequence of encouraging rather than discouraging  
               this kind of behavior, which may be considered by them  
               to be an enterprising way of earning money.



                                      -- END -


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          <2> Id.







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