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
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<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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