BILL ANALYSIS Ó AB 1708 Page A Date of Hearing: April 19, 2016 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 1708 (Gonzalez) - As Amended April 13, 2016 SUMMARY: Imposes mandatory minimum 72 hours in jail for persons convicted of purchasing commercial sex, imposes a one-year sentence enhancement for specified human trafficking offenses, and recasts the crime of prostitution as specified. Specifically, this bill: 1)Defines and divides the crime of prostitution into three separate forms: a) The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act; b) The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and c) The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd AB 1708 Page B act, regardless of which party made the initial solicitation. 2)Clarifies that a manifestation of acceptance of an offer or solicitation to engage in an act of prostitution shall not constitute a violation unless some act, in addition to the manifestation of acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration. 3)Specifies that purchasers of commercial sex is punishable as follows: a) A mandatory minimum 72 hours in county jail; b) Up to 6 months in the county jail; and c) A fine not exceeding $1,000, which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking. 4)Clarifies that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor. 5)Increases mandatory minimum jail time for solicitation of a minor from two days to 72 hours. AB 1708 Page C 6)Specifies that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking. 7)Removes judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults and solicitation of minors. a) States that a person is not eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than three days in a county jail. b) Provides that in all cases in which probation is granted, the court shall require as a condition of probation that the person be confined in a county jail for at least three days. c) States that the court shall not absolve a person from the obligation of spending at least 72 hours in confinement in a county jail. 8)Provides that persons who are convicted of human trafficking of a minor or abduction of a minor for purposes of prostitution within 1,000 feet of a school shall be subject to a one-year state prison enhancement. EXISTING LAW: AB 1708 Page D 1)Defines "unlawful sexual intercourse" as an act of sexual intercourse accomplished with a person under the age of 18 years, when no other aggravating elements - such as force or duress - are present. (Pen. Code, § 261.5, subd. (a).) 2)Provides the following penalties for unlawful sexual intercourse: a) Where the defendant is not more than three years older or three years younger than the minor, the offense is a misdemeanor; b) Where the defendant is more than three years older than the minor, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000; or, c) Where the defendant is at least 21 years of age and the minor is under the age of 16, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000. (Pen. Code, § 261.5, subd (b)-(d).) 3)Provides that in the absence of aggravating elements each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor is punishable as follows: a) Where the defendant is over 21 and the minor under 16 years of age, the offense is a felony, with a prison term of 16 months, two years or three years. b) In other cases sodomy with a minor is a wobbler, with a felony prison term of 16 months, two years or three years. (Pen. Code, §§ 286, subd. (b), 288a, subd. (b), 289, subd. (h).) 4)Provides that where each crime of sodomy, oral copulation or AB 1708 Page E penetration with a foreign or unknown object with a minor who is under 14 and the perpetrator is more than 10 years older than the minor, the offense is a felony, punishable by a prison term of three, six or eight years. (Pen. Code, §§ 286, subd. (c)(1), 288a, subd. (c)(1), 289, subd. (j).) 5)Provides that any person who engages in lewd conduct - any sexually motivated touching or a defined sex act - with a child under the age of 14 is guilty of a felony, punishable by a prison term of three, six or eight years. Where the offense involves force or coercion, the prison term is five, eight or 10 years. (Pen. Code, § 288, subd. (b).) 6)Provides that where any person who engages in lewd conduct with a child who is 14 or 15 years old, and the person is at least 10 years older than the child, the person is guilty of an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000. (Pen. Code, § 288, subd. (c)(1).) 7)Includes numerous crimes concerning sexual exploitation of minors for commercial purposes. These crimes include: a) Pimping: Deriving income from the earnings of a prostitute, deriving income from a place of prostitution, or receiving compensation for soliciting a prostitute. Where the victim is a minor under the age of 16, the crime is punishable by a prison term of three, six or eight years. (Pen. Code, § 266h, subds. (a)-(b); b) Pandering: Procuring another for prostitution, inducing another to become a prostitute, procuring another person to be placed in a house of prostitution, persuading a person to remain in a house of prostitution, procuring another for prostitution by fraud, duress or abuse of authority, and commercial exchange for procurement. (Pen. Code, § 266i, subd. (a).); AB 1708 Page F c) Procurement: Transporting or providing a child under 16 to another person for purposes of any lewd or lascivious act. The crime is punishable by a prison term of three, six, or eight years, and by a fine not to exceed $15,000. (Pen. Code, § 266j.) d) Taking a minor from her or his parents or guardian for purposes of prostitution. This is a felony punishable by a prison term of 16 months, two years, or three years and a fine of up to $2,000. (Pen. Code, § 267.); and, 8)Provides that where a person is convicted of pimping or pandering involving a minor the court may order the defendant to pay an additional fine of up to $5,000. In setting the fine, the court shall consider the seriousness and circumstances of the offense, the illicit gain realized by the defendant and the harm suffered by the victim. The proceeds of this fine shall be deposited in the Victim-Witness Assistance Fund and made available to fund programs for prevention of child sexual abuse and treatment of victims. (Pen. Code, § 266k, subd. (a).) 9)Provides that where a defendant is convicted of taking a minor under the age 16 from his or her parents to provide to others for prostitution (Pen. Code, § 267) or transporting or providing a child under the age of 16 for purposes of any lewd or lascivious act (Pen. Code § 266j), the court may impose an additional fine of up to $20,000. (Pen. Code, § 266k, subd. (b).) 10)Provides that where a defendant is convicted under the Penal Code of taking a minor (under the age of 18) from his or her parents for purposes of prostitution (Pen. Code, § 267), or transporting or providing a child under the age of 16 for purposes of any lewd or lascivious act (266j), the court, if it decides to impose a specified additional fine, the fine must be no less than $5,000, but no more than $20,000. (Pen. Code, § 266k, subd. (b).) AB 1708 Page G 11)Provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a misdemeanor. The crime does not occur unless the person specifically intends to engage in an act of prostitution and some act is done in furtherance of agreed upon act. Prostitution includes any lewd act between persons for money or other consideration. (Pen. Code, § 647, subd. (b).) 12)Provides that if the defendant agreed to engage in an act of prostitution, the person soliciting the act of prostitution need not specifically intend to engage in an act or prostitution. (Pen. Code, § 647, subd. (b).) 13)Provides that where any person is convicted of a second prostitution offense, the person shall serve a sentence of at least 45 days, no part of which can be suspended or reduced by the court regardless of whether or not the court grants probation. (Pen. Code, § 647, subd. (k).) 14)Provides that where any person is convicted for a third prostitution offense, the person shall serve a sentence of at least 90 days, no part of which can be suspended or reduced by the court regardless of whether or not the court grants probation. (Pen. Code, § 647, subd. (k).) 15)Requires the California Department of Justice (DOJ) to collect data from law enforcement agencies about "the amount and types of offenses known to the public authorities." (Pen. Code, §§ 13000 and 13002.) DOJ must: a) Prepare and distribute forms and electronic means for reporting crime data. b) Recommend the form and content of records to "ensure the correct reporting of data?" and instruct agencies in the collecting, keeping and reporting of crime data. c) Process, interpret and analyze crime data. AB 1708 Page H 16)Requires law enforcement agencies, as specified, district attorneys, the Department of Correction and other entities to do the following: (Pen. Code, § 13020.) a) Install and maintain records for reporting statistical data. b) Report data to DOJ "in the manner [DOJ] prescribes." 17)Provides that any person who deprives or violates the personal liberty of any other with the intent to obtain forced labor or services is guilty of human trafficking and shall be punished in state prison for 5, 8, or 12 years and a fine of not more than $500,000. (Pen. Code, § 236.1, subd. (a).) 18)States that any person who deprives or violates the personal liberty of any other with the intent to effect or maintain a violation of specified offenses related to sexual conduct, obscene matter or extortion, is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14 or 20 years and a fine of not more than $500,000. (Pen. Code, § 236.1, subd. (b).) 19)Specifies the following penalties for any person who causes, induces, or persuades, or attempts to cause, induce, persuade, a person who is minor at the time of commission of the offense to engage in a commercial sex act, as provided: a) Five, 8, or 12 years and a fine of not more than $500,000; or, b) Fifteen years to life and a fine of not more than $500,000 when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person. (Pen. Code, § 236.1, subd. (c).) 20)Provides that any person who takes away any other person under the age of 18 years from the father, mother, or AB 1708 Page I 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.) FISCAL EFFECT: COMMENTS: 1)Author's Statement: According to the author, "Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while "pimps" and "johns" have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized "prostitutes" are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking. "In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42% of first-time prostitution arrests are in fact cases involving sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old. "Recently, strides have been made to recognize these sex trafficking victims as such, particularly in the case of children. However, a strong demand for the industry still exists, contributing to more and more vulnerable youth being exploited. Evidence of this can be seen as recently as the Super Bowl, in which hundreds were arrested for attempting to AB 1708 Page J purchase sex<1>. "There is currently no comprehensive statewide solution to combat commercial sexual exploitation of children and to assist those children. We are having the necessary conversations about the appropriate services these victims need- from mental health services, to job training, to stable housing. However, we also have to recognize that in order to stop this exploitation from happening in the first place, we need to combat the demand for commercial sex which incentivizes trafficking to happen. "Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves. "AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims." 2)This Bill Seeks to Focus Prosecution Efforts on The Demand Side of Prostitution: This bill separates prostitution into separately defined and charged offenses, different procedures, penalties and other outcomes and goals can easily be amended into the law. Additionally, the bill imposes mandatory minimum jail sentences on individuals who are convicted of buying or attempting to buy commercial sex in the form of --------------------------- <1>http://www.cookcountysheriff.org/press_page/press_SuperbowlSex TraffickngSting_02_9_2016.html AB 1708 Page K prostitution. 3)Removal of Judicial Discretion in the Sentencing of Prostitution Offenders by Mandating 72 Hours in County Jail and a Mandatory Minimum Fine: Specifically, this bill mandates that upon a conviction of prostitution, "a person is not eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than three days in a county jail. In all cases in which probation is granted, the court shall require as a condition of probation that the person be confined in a county jail for at least three days. The court shall not absolve a person?from the obligation of spending at least 72 hours in confinement in a county jail." From a policy standpoint, there are no mandatory minimum jail sentences for a variety of offenses that are far more serious than misdemeanor prostitution. For instance, there is no mandatory jail sentence for first time domestic violence offenses, or a wide range of violent felony offenses. This bill takes the discretion from a judge to craft an appropriate remedy in a misdemeanor case. Judges are in the best position to make decisions based on the particular facts and circumstances of a case. Imposing mandatory jail time on a person convicted of prostitution can result in the loss of employment and create problems for the offender that may lead to further criminal acts. Courts have found success in fashioning other remedies that have kept offenders employed, outside of county jails at the public expense, and freed up jail space for more dangerous offenders. a) San Francisco District Attorney's Office First Offender Prostitution Program (FOPP): FOPP is a court diversion program aimed at reducing the volume and impact of sex buying by targeting those who purchase sex. The program AB 1708 Page L was first started in San Francisco in 1995. The program is based on the belief that education as opposed to punishment was an effective strategy to address the problems created by the sex industry. The program is focused on educating the purchasers of sex, sometimes referred to as "john's." Purchasers of sex that are dealing with criminal charges for that behavior are predominantly men. The curriculum of the first offender is designed to help men understand the negative effects of being raised in a culture that promotes a system of male superiority and entitlement toward women. The program has incorporated evidence-based practices into the FOPP programming. It includes: Social Learning Theory, Cognitive Behavioral Interventions, Brief Interventions, Harm Reduction, and Peer Reeducation. As part of the FOPP, the legal consequences for subsequent arrests for solicitation of prostitution are emphasized. Participants in the FOPP, are educated about the impacts of prostitution on the participants in the sex industry, the impact of sexual exploitation, the health risks of engaging in prostitution, and the impact of prostitution on the neighborhoods where it occurs. b) Success of Education Programs for Buyers of Sex: As of 2012, approximately 50 cities and counties in the U.S. including Santa Clara, San Diego, Los Angeles, and Fresno have similar programs. (An Overview of John Schools in the United States, (2012), pp. 3-5.) A 2008 study commissioned by the Department of Justice and conducted by Abt Associates found that the First Offender Prostitution Program (FOPP) was successful in substantially reducing recidivism among men arrested for soliciting prostitutes. According to the report, data collected from 10 AB 1708 Page M years prior to implementation and 10 years after implementation (1985 through 2005) showed a sharp drop in re-offense rates (recidivism) in 1995, the first year of implementation. This low level of recidivism was sustained throughout the 10 years studied between 1995 and 2005. The study also found that data from San Diego showed that recidivism rates were cut in half after their education program was implemented. In summary, "FOPP significantly reduces recidivism" and is highly transferable, having been successfully replicated and adapted in other cities in the U.S. (Final Report on the Evaluation of the First Offender Prostitution Program (2008), Abt Associate, pp. v-vi and x.) c) Courts General Power to Impose Conditions of Probation: Courts have broad general discretion to fashion and impose additional probation conditions that are particularized to the defendant. (People v. Smith (2007) 152, Cal.App.4th 1245, 1249.) Courts may impose any "reasonable conditions" necessary to secure justice, make amends to society and individuals injured by the defendant's unlawful conduct, and assist the "reformation and rehabilitation of the probationer." (Pen. Code, § 1203.1.) A valid condition must be reasonably related to the offense and aimed at deterring such misconduct in the future. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) d) Mandatory Fine is Subject to Penalty Assessments: The amount spelled out in statute as a fine for violating a criminal offense are base figures, as these amounts are subject to statutorily-imposed penalty assessments, such as fees and surcharges. This bill seeks to impose a mandatory minimum fine of $1,000 with no judicial discretion to depart from this financial penalty, the following penalty assessments would be imposed pursuant to the Government and Penal codes: AB 1708 Page N ------------------------------------------------------- |Base Fine: |$1,000.0| | | 0| | | | | | | |----------------------------------------------+--------| | | | |----------------------------------------------+--------| |Penal Code § 1464 assessment ($10 for every |$1,000.0| |$10): | 0| | | | | | | |----------------------------------------------+--------| |Penal Code § 1465.7 assessment (20% | $200.00| |surcharge): | | | | | | | | |----------------------------------------------+--------| |Penal Code § 1465.8 assessment ($40 per | $40.00| |criminal offense): | | | | | | | | |----------------------------------------------+--------| |Government Code § 70372 assessment ($5 for | $500.00| |every $10): | | | | | | | | |----------------------------------------------+--------| |Government Code § 70373 assessment ($30 for | $30.00| |felony or misdemeanor offense): | | | | | | | | AB 1708 Page O |----------------------------------------------+--------| |Government Code § 76000 assessment ($7 for | $700.00| |every $10): | | | | | | | | |----------------------------------------------+--------| |Government Code § 76000.5 assessment ($2 for | $200.00| |every $10): | | | | | | | | |----------------------------------------------+--------| |Government Code § 76104.6 assessment ($1 for | $100.00| |every $10): | | | | | | | | |----------------------------------------------+--------| |Government Code § 76104.7 assessment ($4 for | $400.00| |every $10): | | | | | | | | |----------------------------------------------+--------| | | | |----------------------------------------------+--------| |Fine with Assessments: | | | |$4,170.00*| | | | | | | ------------------------------------------------------- *In addition to the assessments detailed in the chart, the defendant could be subject to pay "actual administrative costs" related to his or her arrest and booking (Gov. Code, § 29550 et seq.) and victim restitution for damages impose by the court. e) Abnormally High Criminal Penalties and Assessments in AB 1708 Page P California: In a January 2016 report, the LAO found that California has abnormally high criminal penalties and assessments. <2> According to the report, "[c]urrently, comprehensive information is not available on the criminal fine and fee levels of other states. However, in order to compare California's fine and fee levels to the rest of the nation, we surveyed other states. Specifically, we surveyed one large jurisdiction in each of 33 states (including many states similar to California) for the fines and fees associated with two offenses: a stop sign violation and speeding at 20 miles per hour over the limit. We found that California's fines and fees associated with these common traffic offenses are relatively high. For example, the total fines and fees for a stop sign violation in California is $238, which was higher than 28 of the [33] surveyed states (about 85 percent). The total in other surveyed states ranged from $58 to $277, and averaged $157. The total fines and fees for speeding at 20 miles per hour over the limit in California was $367, which was higher than all of the states we surveyed. The total in other surveyed states ranges from $73 to $350, and averaged $203. The LAO made a number of recommendations to improve the state's fine and fee system. "First, we recommend that the Legislature reevaluate the overall structure of the fine and fee system to ensure the system is consistent with its goals. As part of this process, the Legislature will want to determine the specific goals of the system, whether ability to pay should be incorporated into the system, what should be the consequences for failing to pay, and whether fines and fees should be regularly adjusted. Second, we recommend increasing legislative control over the use of criminal fine and fee revenue to ensure that its uses are in line with legislative priorities by (1) requiring that ------------------------- <2> Improving California's Criminal Fine and Fee System. http://www.lao.ca.gov/Publications/Report/3322 AB 1708 Page Q most criminal fine and fee revenue be deposited in the state General Fund, (2) consolidating most fines and fees into a single, statewide charge, (3) evaluating the existing programs supported by fine and fee revenues, and (4) mitigating the impacts of potential changes to the fine and fee system on local governments." 4)Sexual Acts with Minors Regardless of the Payment of Compensation Constitutes a Sex Crime: This bill would separately define prostitution in which the person who provides, agreed to provide, sexual services is a minor. Sexual conduct with a minor constitutes a felony in most instances, regardless of whether anything of value was offered or exchanged for the sexual acts. If the minor involved in commercial sex of was under the age of 14, the defendant has committed the felony of lewd conduct, with a prison term of three, six or eight years, or five, eight or 10 years if coercion is involved (Pen. Code § 288, subds. (a) & (b).) Soliciting an act of prostitution from a minor under the age of 14 could likely be prosecuted as attempted lewd conduct. The prison or jail term for an attempt is generally one-half the punishment for the completed crime. Where the defendant solicited or employed a minor who was 14 or 15 years old, and the defendant was at least 10 years older than the minor, the defendant has committed an alternate felony-misdemeanor. Any defined sex act - sodomy, sexual penetration, oral copulation or sexual intercourse - with a minor is a crime. The penalties depend on the relative ages of the defendant and the minor and whether the crime involved some form of force, coercion or improper advantage. A defendant charged with a prostitution-related offense involving a minor could also be charged and convicted of a sex crime in the same case. Generally, because the defined sex crime and the sexual commerce offense would involve a single transaction or act, the defendant could only be punished for one offense - the offense carrying the greatest penalty. (Pen. Code § 654.) AB 1708 Page R 5)Accurate and Full Data Collection on Individually Defined Forms of Prosecution: One of the purposes of this bill is to collect data to determine how many adults are arrested for and convicted of paying for sexual acts, how many adults are arrested for and convicted of selling sexual acts and how many adults are arrested for and convicted of paying for sexual services from minors. The bill divides the prosecution statute - Penal Code Section 647, subdivision (b) - into three paragraphs reflecting each form of the crime. In order for the data to be valuable and accurate, reporting agencies will need to specifically note the paragraph under which a defendant was arrested and convicted. Representatives from DOJ explained: "The way [crime reports] appears in the system is entirely dependent on the law enforcement agency or court that enters the offense into the system. One agency may enter PC 647(b)(2) while another may only enter PC 647(b)." Prosecutors will likely record the specific paragraph under which the defendant is convicted - PC 647 (b)(2) for example. However, police officers and sheriff's deputies might not specifically record the paragraph of arrest unless instructed to do so. Further, it may not be apparent to officers and deputies what specific form of prostitution would be charged by the prosecutor in any particular case. That could cause some confusion and inaccuracy in the data. Another impediment to full and accurate data collection is the fact that sex with a minor is a crime. If a minor and an adult are involved in a prostitution incident, numerous outcomes involving sex crimes and prostitution could occur. For example, the police could arrest both parties for prostitution, but the prosecutor could charge the adult with a sex crime, or prostitution, or both. The prosecutor could charge the minor with no crime, or file a prostitution charge. The adult could be initially charged with a sex crime but plead guilty to a prostitution offense, perhaps if the minor appeared to be an adult. In sum, it may be difficult to determine the extent of prostitution involving minors from arrest and conviction data. If committee members approve the AB 1708 Page S bill, they may wish to inquire as to whether DOJ should be directed to instruct agencies on the reporting of prostitution offenses. Committee members may also wish to inquire whether it could be assured that prostitution involving minors could be accurately reported and tracked. 6)Prostitution and Human Trafficking, Though Related, are not Always the Same Thing: A growing number of policy discussions are equating prostitution offenses with human trafficking offenses. There is no doubt that the crimes are related, however, they are not the same crime. A number of proposals seek to treat all prostitution offenses more severely because of the grave threat and nature of human trafficking. Human trafficking is a very serious crime, involving forced servitude, with very serious penalties. Most prostitution offenses between a person who is soliciting a prostitute and the prostitute themselves are misdemeanor crimes. Additionally, pimps and panderers generally are treated more severely by the law, with much more serious consequences than the prostitute or the "john." Unlike the crimes of pimping and pandering, human trafficking is a crime that generally involves some form of force or coercion. Prostitution, by definition, does not require any form of force or coercion. California has existing strict laws for the treatment of pimps and panderers, as well as human traffickers. However, those crimes are not the same and should not be treated the same. Furthermore, not every person who solicits a prostitute is engaged in the crime of human trafficking. Categorizing all "johns" as human traffickers, or all pimps and panderers as human traffickers, is unproductive in setting criminal justice policy. Distinctions between these crimes must be maintained so that proper resources can be allocated to combat and deal with the crimes based on their relative severity. Blurring the lines between the less severe crimes related to prostitution, and the more severe crimes related to human trafficking, weakens the severity of human trafficking AB 1708 Page T offenses. For instance, this committee has approved bills to add human trafficking to the list of serious felonies. However, if we continue to expand the definition of human trafficking to include more minor prostitution-related offenses the committee would have to re-evaluate in the future whether it would still consider human trafficking a serious felony. According to the Polaris Project, "Human trafficking is a form of modern-day slavery where people profit from the control and exploitation of others. As defined under U.S. federal law, victims of human trafficking include children involved in the sex trade, adults age 18 or over who are coerced or deceived into commercial sex acts, and anyone forced into different forms of 'labor or services,' such as domestic workers held in a home, or farm-workers forced to labor against their will. The factors that each of these situations have in common are elements of force, fraud, or coercion that are used to control people." (< http://www.polarisproject.org/human-trafficking/overview >.) Pimping under California law means receiving compensation from the solicitation of a known prostitute. (Pen. Code, § 266h.) Whereas pandering means procuring another person for the purpose of prostitution by intentionally encouraging or persuading that person to become or continue being a prostitute. (Pen. Code, § 266i.) Oftentimes, pimps use mental, emotional, and physical abuse to keep their prostitutes generating money. Consequently, there has been a paradigm shift where pimping and pandering is now viewed as possible human trafficking. This new approach has been criticized by some because it blurs the line between human trafficking and prostitution. Sex workers say it discounts their ability to willingly work in the sex industry. (See Nevada Movement Draws the Line on Human Trafficking by Tom Ragan, Las Vegas Review Journal, May AB 1708 Page U 26, 2013, < http://www.reviewjournal.com/news/las-vegas/nevada-movement-dra ws-line-human-trafficking >.) a) Prostitution Generally: The basic crime of prostitution is a misdemeanor offense. (Pen. Code § 647(b).) Prostitution can be generally defined as "soliciting or agreeing to engage in a lewd act between persons for money or other consideration." Lewd acts include touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person. To implicate a person for prostitution themselves, the prosecutor must prove that the defendant "solicited" or "agreed" to "engage" in prostitution. A person agrees to engage in prostitution when the person accepts an offer to commit prostitution with specific intent to accept the offer, whether or not the offerer has the same intent. For the crime of "soliciting a prostitute" the prosecutors must prove that the defendant requested that another person engage in an act of prostitution, and that the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication containing the request. The defendant must do something more than just agree to engage in prostitution. The defendant must do some act in furtherance of the agreement to be convicted. Words alone may be sufficient to prove the act in furtherance of the agreement to commit prostitution Violation of Pen. Code § 647(b) is a misdemeanor. For a first offense conviction of prostitution the defendant faces up to 180 days in jail. If a defendant has one prior conviction of prostitution he or she must receive a county jail sentence of not less than 45 days. If the defendant AB 1708 Page V has two or more prior convictions, the minimum sentence is 90 days in the county jail. In addition to the punishment described above, if the defendant has a conviction of prostitution, he or she faces fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions. Closely associated crimes to prostitution include: abduction of a minor for prostitution (Pen. Code 267); seduction for prostitution (Pen. Code 266); keeping a house of prostitution (Pen. Code 315); leasing a house for prostitution (Pen. Code 318); sending a minor to a house of prostitution (Pen. Code 273e); taking a person against that person's will for prostitution (Pen. Code 266a); compelling a person to live in an illicit relationship (Pen. Code 266b); placing or leaving one's wife in a house of prostitution (Pen. Code 266g); loitering for prostitution ( Pen. Code 653.22 subd. (a) ); pimping ( Pen. Code 266h) ; or, pandering ( Pen. Code 266i) . Most of these crimes are punished much more severely than the underlying prostitution offense, particularly the crimes of pimping, pandering, and procurement. b) Human Trafficking Generally: Human trafficking involves the recruitment, transportation or sale of people for forced labor. Through violence, threats and coercion, victims are forced to work in, among other things, the sex trade, domestic labor, factories, hotels and agriculture. According to the January 2005 United States Department of State's Human Smuggling and Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking", there is an estimated 600,000 to 800,000 men, women and children trafficked across AB 1708 Page W international borders each year. Of these, approximately 80% are women and girls and up to 50% are minors. A recent report by the Human Rights Center at the University of California, Berkeley cited 57 cases of forced labor in California between 1998 and 2003, with over 500 victims. The report, "Freedom Denied", notes most of the victims in California were from Thailand, Mexico, and Russia and had been forced to work as prostitutes, domestic slaves, farm laborers or sweatshop employees. [University of California, Berkeley Human Rights Center, "Freedom Denied: Forced Labor in California" (February, 2005).] According to the author: "While the clandestine nature of human trafficking makes it enormously difficult to accurately track how many people are affected, the United States government estimates that about 17,000 to 20,000 women, men and children are trafficked into the United States each year, meaning there may be as many as 100,000 to 200,000 people in the United States working as modern slaves in homes, sweatshops, brothels, agricultural fields, construction projects and restaurants." In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. The proposition increased criminal penalties for human trafficking, including prison sentences up to 15-years-to-life and fines up to $1,500,000. Additionally, the proposition specified that the fines collected are to be used for victim services and law enforcement. Proposition 35 requires persons convicted of trafficking to register as sex offenders. Proposition 35 prohibits evidence that victim engaged in sexual conduct from being used against victims in court proceedings. Additionally, the proposition lowered the evidential requirements for showing of force in cases of minors. i) Trafficking Victims Protection Act of 2000 (22 USC AB 1708 Page X Sections 7101 et seq.): In October 2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted and is comprehensive, addressing the various ways of combating trafficking, including prevention, protection and prosecution. The prevention measures include the authorization of educational and public awareness programs. Protection and assistance for victims of trafficking include making housing, educational, health-care, job training and other federally funded social service programs available to assist victims in rebuilding their lives. Finally, the TVPA provides law enforcement with tools to strengthen the prosecution and punishment of traffickers, making human trafficking a federal crime. ii) Proposition 35 Update to Human Trafficking Laws: In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. Specifically, Proposition 35 increased criminal penalties for human trafficking offenses, including prison sentences up to 15-years-to-life and fines up to $1.5 million. The proposition specified that the fines collected are to be used for victim services and law enforcement. In criminal trials, the proposition prohibits the use of evidence that a person was involved in criminal sexual conduct (such as prostitution) to prosecute that person for that crime if the conduct was a result of being a victim of human trafficking, and makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim's credibility or character in court. The proposition lowered the evidentiary requirements for showing of force in cases of minors. Proposition 35 also requires persons convicted of human trafficking to register as sex offenders and expanded registration requirements by requiring registered sex offenders to provide the names of their internet AB 1708 Page Y providers and identifiers, such as e-mail addresses, user names, and screen names, to local police or sheriff's departments. After passage of Proposition 35, plaintiffs American Civil Liberties Union and Electronic Frontier Foundation filed a law suit claiming that these provisions unconstitutionally restricts the First Amendment rights of registered sex offenders in the states. A United States District Court judge granted a preliminary injunction prohibiting the implementation or enforcement of Proposition 35's provisions that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. [Doe v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS 5428.] iii)California Attorney General's Report on Human Trafficking: The California Attorney General's Human Trafficking in California 2012 report stated that human trafficking investigations and prosecutions have become more comprehensive and organized. There are nine human trafficking task forces in California, composed of local, state and federal law enforcement and prosecutors. Data on human trafficking has improved, although the data still does not reflect the actual extent and range of human trafficking. Data from 2010 through 2012 collected by the California task forces are set out in the following chart: California Human Trafficking Task Forces Data 2010-2012 --------------------------------------------------------- |Investigations |2,552 | | | | | | | |--------------------------------+------------------------| AB 1708 Page Z |Victims Identified |1,277 | | | | | | | |--------------------------------+------------------------| |Arrests Made |1,798 | | | | | | | --------------------------------------------------------- Trafficking by Category ---------------------------------------------------------- |Sex Trafficking |56% | | | | | | | |--------------------------------+-------------------------| |Labor Trafficking |23% | | | | | | | |--------------------------------+-------------------------| |Unclassified or Insufficient |21% | |Information | | | | | | | | | | | | | | ---------------------------------------------------------- 7)Current Penalties for Human Trafficking: In 2012, California voters enacted Proposition 35, which modified many provisions of California's already tough human trafficking laws. Specifically, Proposition 35 expanded the definition of human trafficking and increased criminal penalties and fines for human trafficking offenses. The proposition specified that AB 1708 Page A the fines collected are to be used for victim services and law enforcement. In criminal trials, the proposition makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim's credibility or character in court. The proposition also lowered the evidentiary requirements for showing of force in cases of minors. (See Proposition 35 voter guide available at Secretary of State's website, < http://www.voterguide.sos.ca.gov/past/2012/general/proposition s/35/analysis.htm > (as of Apr. 22, 2015.) The current penalties for human trafficking are very severe. Human trafficking for the purpose of obtaining forced labor or services is punishable by imprisonment in state prison for up to 12 years. If the offense involves human trafficking for the purpose of specified sexual conduct, obscene matter or extortion, the punishment proscribed is up to 20 years imprisonment in state prison. If the offense involves causing a minor to engage in a commercial sex act, the penalty imposed may be 15-years to life. (Pen. Code, § 236.1.) The court may also impose up to a $1.5 million fine on a person convicted of human trafficking. (Pen. Code §§ 236.1 and 236.4.) 8)State Prison Overcrowding Considerations: In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that CDCR was unable to provide inmates with constitutionally adequate healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State Supreme Court upheld the decision, declaring that "without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill" inmates in California's prisons. (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.) AB 1708 Page B After continued litigation, 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 its most recent status report to the court (February 2015), 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). 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).) Moreover, there are still approximately 10,500 prisoners being housed in out of state and in private prisons. (See latest CDCR monthly population report, as of March 31, 2015: < http://www.cdcr.ca.gov/Reports_Research/Offender_Information_S ervices_Branch/Monthly/TPOP1A/TPOP1Ad1503.pdf >.) This bill creates a new enhancement of one year when the defendant is convicted of a human trafficking offense, where the offense was committed against a minor, or convicted of AB 1708 Page C abducting a minor for the purpose of prostitution, where the offense was committed on the grounds of, or within 1,000 feet of a school. Although the state is currently in compliance with the court-ordered population cap, creating new enhancements that increase the length of time that an inmate must serve in prison will reverse the progress made in reducing the state prison population. This is contrary to the court's order for a durable solution to prison overcrowding. 9)Argument in Support: According to the Alameda County District Attorney's Office, "In order to fully combat the problem of commercial sex trafficking, it is important to combat the demand for these services, and recognize that purchasers of sex are driving this exploitative and dangerous industry of slavery. This bill would require a person who sought to procure or did procure sexual services to spend at least 3 days in jail in addition to paying a minimum fine of $1,000 to fund victim services. This bill would also add an additional one year in state prison to a felony conviction of trafficking if the victim was a minor and the activities took place near a school. "As long as there is demand, there will be an exploiter to fill it. Unfortunately it is at the expense of the life, well-being and psychological impact of the child. Individuals who purchase human beings for sex fuel the market the traffickers supply with victims. Until we eliminate the demand, the sex exploitation of our society's most vulnerable girls, women and men, and boys, will continue." 10)Argument in Opposition: According to the American Civil Liberties Union, "We believe that the new sentencing enhancement proposed is unnecessary in light of existing penalties, and that the mandatory 72 hours of confinement for solicitation unnecessarily infringes on judicial discretion. In addition, we believe it is inappropriate to expand the punishment for the offense of soliciting a minor to include soliciting someone 'posing as a minor.' AB 1708 Page D "AB 1708 makes six changes to California's criminal laws as follows: 1) Divides the offense of prostitution into two separate sections, one for the person receiving compensation and one for the person offering compensation. 2) Imposes a mandatory 72 hour period of confinement on any individual convicted of offering to provide compensation for an act of prostitution, removing the judge's discretion to allow a person to serve this sentence through community service, work furlough or another non-custodial form of punishment. 3) Expands the punishment for soliciting an act of prostitution with a minor to include a person 'posing as a minor.' 4) Adds a new sentencing enhancement for committing the crime of human trafficking "against a minor" on the grounds of or within 1,000 feet of a school. "First, imposing a mandatory 72 hour period of incarceration for the offense of solicitation unnecessarily reduces judicial discretion in sentencing. Current law provides for a mandatory two day jail sentence for soliciting an act of prostitution if the person solicited was a minor. (Pen. Code sec. 647(m)(1).) Current law also provides that the judge 'may, in unusual cases, when the interests of justice are best served, reduce or eliminate the mandatory two days of imprisonment.' (Pen. Code sec. 647(m)(2).) "AB 1708 would eliminate this narrow safety-valve of judicial discretion, would increase the mandatory jail period from 48 to 72 hours, and would apply the mandatory jail period to all solicitation offenses, including offenses where the person solicited was an adult. We believe these increases in criminal AB 1708 Page E sanctions will not reduce the instances of human trafficking but will exacerbate jail overcrowding and prevent judges from imposing appropriate sentences based on the unique facts of the case before them. Current law sufficiently punishes offenders while also preserving judicial discretion in unusual cases, when the interests of justice would best be served by not imposing the jail sentence. This is a very restricted but wise safeguard that allows judge to exercise their discretion when the specific circumstances of the case call for another approach. Mandating jail time, without any judicial discretion to pursue alternatives, for low-level, nonviolent conduct that involves no actual sexual activity is counter-productive to the goals of rehabilitation and limits the ability to use scarce jail space for serious offenders. "Second, punishing a person for soliciting a minor for an act of prostitution, when the person solicited was not actually a minor but instead a person 'posing as a minor,' would significantly expand the punishment provided under current law. Current law doubles the maximum possible punishment for solicitation 'if the defendant knew or should have known that the person who was solicited was a minor at the time of the offense.' (Pen. Code sec. 647(b)(m).) This double punishment takes into account the harm caused to the minor who was solicited. "AB 1708 would apply this longer maximum punishment 'if the person who was solicited was a person posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor.' This appears intended to facilitate undercover sting operations in which law enforcement pose as minors, typically in online forums. But in these circumstances, no minor has actually been harmed. The additional punishment is thus unwarranted. "Third and finally, we believe AB 1708's new proposed sentencing enhancement for human trafficking committed "against a minor" on the grounds of or within 1,000 feet of a school is unnecessary and counter-productive. Research has shown that more severe AB 1708 Page F sentences do not actually enhance public safety.<3> Studies have concluded that the severity of punishment does not generally have an increased effect on deterrence.<4> Rather, researchers have found that certainty of punishment - that someone will be punished for a particular crime - has a greater deterrent effect than the severity of the punishment itself.<5> "California law already provides significant punishments for human trafficking involving a minor. Under existing Penal Code section 236.1, the lowest penalty possible for human trafficking is five years in state prison. (Pen. Code sec. 2361.(a).) The highest penalty is life imprisonment. (Pen. Code sec. 236.1(c)(2).) These punishments can be further enhanced by a myriad of existing sentence enhancements. "Governor Brown has criticized our state's criminal laws, particularly the number of sentencing enhancements, observing, '[t]here are now 400 separate enhancements that can add up to 25 years, each one of them, and now you have over 5,000 separate criminal provisions.'<6> As the Governor stated in his veto message of several bills last fall, '[t]his multiplication and particularization of criminal behavior creates increasing ---------------------------- <3> Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (Sentencing Project 2010) available at http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf <4> Id. <5> Id. <6> Scott Shafer, Prosecutors Cry Foul Over Jerry Brown's Ballot Measure, KQED, Feb. 12, 2016, available at http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jer ry-browns-ballot-measure AB 1708 Page G complexity without commensurate benefit.'<7> "While protecting minors from victimization is an extremely important objective, we believe that lengthening sentences for the offenses referenced in this bill and decreasing judicial discretion in sentencing will not accomplish that goal. For these reasons, we must oppose AB 1708 unless amended. Please do not hesitate to contact us should you have any questions." 1)Related Legislation: a) AB 1051 (Maienschein), of this legislative session, changed the definition of "pattern of criminal gang activity" to add the crime of human trafficking and creates a new one-year state prison enhancement for specified crimes committed against a minor on the grounds of, or within 1,000 feet of a school. AB 1051 was held in the Senate Appropriations Committee. b) SB 420 (Huff), recasts the prostitution section using the exact same language as this bill, dividing buyers, sellers, and buyers of sexual services from minors. SB 420 was held for interim study by this committee. REGISTERED SUPPORT / OPPOSITION: Support --------------------------- <7>Patrick McGreevy, With Strong Message Against Creating New Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015, available at http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-r estricting-hobbyist-drones-at-fires-schools-prisons-20151003-stor y.html AB 1708 Page H Alameda County District Attorney's Office California District Attorneys Association County of San Diego Peace Officers Research Association of California San Diego District Attorney's Office State Coalition of Probation Organizations Opposition American Civil Liberties Union California Public Defenders Association California State Sheriffs' Association Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 AB 1708 Page I