BILL ANALYSIS Ó
AB 1760
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Date of Hearing: April 5, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1760 (Santiago) - As Introduced February 2, 2016
SUMMARY: Requires police officers to make a determination if a
minor arrestee is victim of human trafficking or has engaged in
a commercial sex act. Provides the minor with immunity from
arrest and prosecution for non-violent offenses committed as a
direct result of being trafficked. Provides immunity from
arrest and prosecution for minors that exchange sex acts for
payment. Specifically, this bill:
1)Requires a peace officer to determine whether a suspect of a
crime is a minor who has engaged in a commercial sex act or is
a minor who is a human trafficking victim, and whether any
nonviolent crime that person is suspected of was committed as
a direct result of being trafficked.
2)Prohibits the arrest of a minor for the suspected crime, if
the minor meets the criteria stated above.
3)Requires any record of an arrest previously made to be sealed
and destroyed if an officer makes the specified factual
determination.
4)Requires the peace officer to report suspected abuse or
neglect of the minor to the county child welfare agency if the
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officer has made the specified determination.
5)Prohibits the arrest or punishment of a minor who has
exchanged or attempted to exchange sex acts in return for
money or other consideration, commencing June 30, 2017.
6)Prohibits the arrest or punishment of a minor who has loitered
in a public place with the intent to exchange sex acts in
return for money or other consideration, commencing June 30,
2017.
7)The bill would instead allow the person to be adjudicated a
dependent of the juvenile court and would require a peace
officer to report suspected abuse or neglect to the county
child welfare agency.
8)Requires the Commission on Peace Officer Standards and
Training (POST) to update its training to conform with changes
in law that this bill would make prohibiting the arrest and
punishment of minor victims of human trafficking.
9)Enacts the State Plan to Serve and Protect Child Trafficking
Victims and would require the California Health and Human
Services Agency, no later than January 30, 2017, to convene an
interagency workgroup, as specified, to develop the plan with
the following minimum requirements:
a) A multiagency-coordinated child trafficking response
protocol and guidelines for local implementation that
establish clear lines of ongoing responsibility to ensure
that child trafficking victims have access to the necessary
continuum of treatment options.
b) Requires the workgroup to submit the plan to the
Legislature, Judicial Council, and Governor no later than
January 30, 2018.
10)Requires the State Department of Social Services to establish
a working group in consultation with county welfare
departments and other stakeholders to develop recommendations
for the board, care, and supervision of child trafficking
victims who are in need of placement in facilities that will
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protect them from traffickers and provide needed specialized
support and services.
11)States that the State Department of Social Services, with
input from specified stakeholders, to identify, develop, and
disseminate screening tools for use by county child welfare
and probation staff to identify children who are child
trafficking victims.
12)Requires the State Department of Social Services no later
than December 31, 2017, to provide counties with guidance on
the use of the screening tools.
13)Specifies that the State Department of Social Services and
the State Department of Health Care Services, in consultation
with specified stakeholders, shall identify tools and best
practices to screen, assess, and serve child trafficking
victims.
14)Requires the State Department of Social Services to develop
curriculum and provide training to local multidisciplinary
teams no later than December 31, 2017.
15)Requires each county to develop an interagency protocol to be
utilized in serving child trafficking victims. The bill would
require each county's protocol to be adopted by the board of
supervisors no later than June 30, 2017. The bill would
require the protocols to identify the roles and
responsibilities of county based agencies and local service
responders in serving victims of trafficking or commercial
sexual exploitation.
16)States that the administrator certification program for group
homes, the administrator certification program for short-term
residential treatment centers, mandatory training for licensed
or certified foster parents, and training for mandated child
abuse reporters and child welfare personnel shall include
instruction on cultural competency and sensitivity and related
best practices for providing adequate care to child
trafficking victims.
17)Requires the California Child Welfare Council to provide
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recommendations and updates to the State Plan to Serve and
Protect Child Trafficking Victims.
EXISTING LAW:
1)Requires law enforcement agencies to use due diligence to
identify all victims of human trafficking, regardless of the
citizenship of the person. (Pen. Code, § 236.2.):
2)Specifies that when a peace officer comes into contact with a
person who has been deprived of his or her personal liberty, a
minor who has engaged in a commercial sex act, a person
suspected of violating specified prostitution offenses, or a
victim of a crime of domestic violence or sexual assault, the
peace officer shall consider whether the following indicators
of human trafficking are present (Pen. Code, § 236.2.):
a) Signs of trauma, fatigue, injury, or other evidence of
poor care.
b) The person is withdrawn, afraid to talk, or his or her
communication is censored by another person.
c) The person does not have freedom of movement.
d) The person lives and works in one place.
e) The person owes a debt to his or her employer.
f) Security measures are used to control who has contact
with the person.
g) The person does not have control over his or her own
government-issued identification or over his or her worker
immigration documents.
3)States that any person who deprives or violates the personal
liberty of another with the intent to obtain forced labor or
services, is guilty of human trafficking and shall be punished
by imprisonment in the state prison for 5, 8, or 12 years and
a fine of not more than five hundred thousand dollars
($500,000). (Pen. Code § 236.1, subd. (a).)
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4)Specifies that any person who deprives or violates the
personal liberty of another with the intent to effect or
maintain a violation of specified sex offenses, 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 five hundred thousand dollars ($500,000). (Pen. Code §
236.1, subd. (b).)
5)Provides that any person who causes or persuades, or attempts
to cause or persuade, a person who is a minor to engage in a
commercial sex act, with the intent to effect a violation of
specified sex offenses is guilty of human trafficking. A
violation of this subdivision is punishable by imprisonment in
the state prison as follows:
a) Five, 8, or 12 years and a fine of not more than five
hundred thousand dollars ($500,000). (Pen. Code § 236.1,
subd. (c)(1).)
a) Fifteen years to life and a fine of not more than five
hundred thousand dollars ($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)(2).)
6)Defines "coercion" as "any scheme, plan, or pattern intended
to cause a person to believe that failure to perform an act
would result in serious harm to or physical restraint against
any person; the abuse or threatened abuse of the legal
process; debt bondage; or providing and facilitating the
possession of any controlled substance to a person with the
intent to impair the person's judgment." (Pen. Code § 236.1,
subd. (h)(1).)
7)Defines "commercial sex act" as "sexual conduct on account of
which anything of value is given or received by any person."
(Pen. Code § 236.1, subd. (h)(2).)
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8) Defines "deprivation or violation of the personal liberty of
another" as "substantial and sustained restriction of
another's liberty accomplished through force, fear, fraud,
deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person, under
circumstances where the person receiving or apprehending the
threat reasonably believes that it is likely that the person
making the threat would carry it out." (Pen. Code § 236.1,
subd. (h)(3).)
9)Defines "duress" as a "direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to cause
a reasonable person to acquiesce in or perform an act which he
or she would otherwise not have submitted to or performed; a
direct or implied threat to destroy, conceal, remove,
confiscate, or possess any actual or purported passport or
immigration document of the victim; or knowingly destroying,
concealing, removing, confiscating, or possessing any actual
or purported passport or immigration document of the victim."
(Pen. Code § 236.1, subd. (h)(5).)
10)Defines "Forced labor or services" as labor or services that
are performed or provided by a person and are obtained or
maintained through force, fraud, duress, or coercion, or
equivalent conduct that would reasonably overbear the will of
the person. (Pen. Code § 236.1, subd. (h)(5).)
11) Specifies that the total circumstances, including the age of
the victim, the relationship between the victim and the
trafficker or agents of the trafficker, and any handicap or
disability of the victim, shall be factors to consider in
determining the presence of "deprivation or violation of the
personal liberty of another," "duress," and "coercion" as
described in this section. (Pen. Code § 236.1, subd. (i).)
12)Specifies that persons who committed the act or made the
omission under threats or menaces sufficient to show that they
had reasonable cause to and did believe their lives would be
endangered if they refused, are not guilty of a crime (unless
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the crime be punishable with death). (Pen. Code, § 26.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Child victims
of human trafficking are forced, induced, or coerced into
providing labor services, or sex. A trafficked child may be
compelled to engage in illegal activities such as prostitution
or selling drugs. Instead of being identified as trafficked
and treated as victims, many are treated as criminals and
prosecuted for the very crimes that were part of the
traffickers' victimization and profit.
"Currently in California, a minor can be prosecuted for
prostitution and for non-violent crimes their traffickers
forced them to commit. Arrest and prosecution further
traumatizes the victim and leaves him or her with a profound
distrust of law enforcement. This can deter victims from
seeking assistance or leave them vulnerable to continued
exploitation. Furthermore, the criminal record that results
from being arrested and prosecuted as a child can create
long-term barriers to education, employment, housing, and
other opportunities.
"AB 1760 is necessary in order to protect trafficked child
victims from being criminalized and to ensure there is a
system in place that effectively identifies, houses, and cares
for all trafficked children. This measure will reduce a
trafficked child victims' distrust of law enforcement,
establish multi-leveled coordinated efforts, ensure diversion
to supportive services, and prevent the negative psychological
impacts child trafficked victims have due to arrest and
detention."
2)Decriminalization of Minors Engaged in Prostitution: This bill
would prohibit the arrest or punishment of a minor who has
exchanged or attempted to exchange sex acts in return for
money or other forms of payment. Under current law, minors
committing prostitution can be arrested by law enforcement.
Those minors are then dealt with through the juvenile justice
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system. By decriminalizing prostitution of minors, those
minors could no longer be arrested and would not go through
the juvenile justice system. This bill would instead allow a
temporary detention of the minor and a referral to the child
welfare system (child protective services).
There are tensions between addressing the problem of minors
engaged in prostitution through the juvenile justice system
versus child protective services. The ability to arrest a
minor and go through the juvenile justice system arguably
provides a higher likelihood that the minor will receive
services. There is concern without a court process that has
the ability to impose sanctions, the minor will simply return
to the situation in which they had been engaging in
prostitution. The child welfare system does not have the
ability to provide a way to mandate services for a minor, or
prevent the minor from returning to the life that involved
prostitution.
However, there are concerns about arresting minors engaged in
prostitution and processing them through the juvenile justice
system. To the extent that a minor engaged in prostitution is
a victim of crime, arresting them and charging them with a
crime are acts which treat them as a criminal. There is a
concern that if a minor is subject to arrest they will be less
likely to cooperate with law enforcement to seek help
regarding their trafficker. There is also a concern that a
minor would be less likely to seek services because of the
minor is worried about coming in contact with authorities that
might treat them as criminals.
Many district attorney offices throughout the state are choosing
to handle minors involved in prostitution through the juvenile
justice system, but diverting them very early in the process
to programs that can provide the juvenile appropriate
services. Such diversion programs allow the minor to avoid
any juvenile conviction.
3)Peace Officers are Already Mandated Reporters of Child Abuse
or Neglect: The California Child Abuse Neglect Reporting Act
(CANRA) requires mandatory reporting when certain individuals
suspect that a child has been abused or neglected. Law
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enforcement officers are one of the groups which have
mandatory reporting responsibilities.
A mandated reporter must make a report whenever, in his/her
professional capacity or within the scope of his/her
employment, he/she has knowledge of, or observes a child (a
person under 18) whom the mandated reporter knows or
reasonably suspects has been the victim of child abuse or
neglect. Abuse includes the sexual exploitation of a child.
When law enforcement suspects abuse or neglect they inform child
protective services and the district attorney's office of the
suspected abuse.
4)This Bill Requires Police Officers to Take On Responsibilities
Normally Reserved For the Judicial System: This bill requires
officers to not only make a determination about whether or not
a juvenile suspect they encounter on the street is a victim of
human trafficking, but also whether there are other crimes (in
any jurisdiction) that are a direct result of being
trafficked. The requirement that the officer determine if
there are other crimes that are a direct result of being
trafficked requires the officer to make legal determinations
ordinarily made by district attorneys and courts. The
determination that an individual is a victim of human
trafficking can require investigative resources and
information not available to an officer making a decision in
the field about whether to arrest a suspect.
Officers are not in a position to make a factual and legal
determinations other cases about which they have not
investigated, or cases in other law enforcement jurisdictions.
Generally, if an officer determines that a crime has in fact
been committed, but there is a claim that the individual was
forced to engage in the crime, the officer would refer the
case to the district attorney's office for evaluation. That
claim would be evaluated by the district attorney's office and
if not resolved, be contested in court.
Often the arresting officer doesn't have the ability to make a
determination about facts that need to be investigated beyond
the scene of the arrest. The determination of whether someone
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is a victim of human trafficking is going to require
investigation which cannot be done at the scene of the arrest.
To require the arresting officer to make such a determination
would place demands on that officer which have traditionally
been placed on the judicial system.
This bill not only places a burden on the officer to make
determinations which can be outside the reach of his or her
ability to immediately determine, but expects the officer to
make determinations on cases in which the juvenile is a
suspect, but about which the officer has no personal
knowledge.
5)The Existing Legal Defenses of Duress and Necessity Can Apply
to Victims of Human Trafficking Forced to Commit Crimes:
California law provides the possibility of defenses based on
duress or necessity when a person commits a crime to avoid a
significant danger to themselves or others. These defenses
certainly can apply to situations in which victims of human
trafficking are forced into criminal behavior by their
trafficker. Circumstances consistent with a defense of duress
or necessity can be considered by a district attorney's office
when they decide what criminal charges to file, or whether
charges will be filed at all. If charges are filed, evidence
to establish these defenses can be presented as part of the
court process.
The instruction the jury would receive when considering the
defense of duress is as follows:
The defendant acted under duress if, because of threat or
menace, (he/she) believed that (his/her/ [or] someone
else's) life would be in immediate danger if (he/she)
refused a demand or request to commit the crime[s]. The
demand or request may have been express or implied.
The defendant's belief that (his/her/ [or] someone else's)
life was in immediate danger must have been reasonable.
When deciding whether the defendant's belief was
reasonable, consider all the circumstances as they were
known to and appeared to the defendant and consider what a
reasonable person in the same position as the defendant
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would have believed. (Calcrim 3402.)
A defense of necessity is similar to duress.
To justify an instruction on the defense of necessity, a
defendant must present evidence sufficient to establish
that she violated the law (1) to prevent a significant
bodily harm or evil to themselves or someone else, (2) with
no reasonable legal alternative, (3) without creating a
greater danger than the one avoided, (4) with a good faith
belief that the criminal act was necessary to prevent the
greater harm, (5) with such belief being objectively
reasonable, and (6) under circumstances in which she did
not substantially contribute to the emergency. (Calcrim
3403.)
6)Argument in Support: According to The California Public
Defenders Association, "Commercial sexual exploitation and sex
trafficking of minors should be understood as acts of abuse
and violence against minors. Minors who are commercially
sexually exploited or trafficked for sexual purposes should
not be considered criminals. Identification of victims and
survivors and any intervention, above all, should do no
further harm to any child or adolescent. There is substantial
and compelling evidence that commercial exploitation and sex
trafficking of minors in the United States are serious
problems with immediate and long-term adverse consequences for
children and adolescents, as well as for families,
communities, and society as a whole. Efforts to identify and
respond to the commercial sexual exploitation and sex
trafficking of minors in the United States are emerging, but
efforts to date are largely under supported, insufficient,
uncoordinated, and unevaluated. Efforts to prevent, identify,
and respond to commercial sexual exploitation and sex
trafficking of minors require collaborative approaches that
build upon the core capabilities of people and entities from a
range of sectors.
"Law enforcement officers are often the earliest to respond to
minors that are the victims of commercial sexual exploitation
and sex trafficking. Their knowledge and ability to identify
victims, investigate cases for appropriate treatment/services,
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and make appropriate referrals/recommendations to the court is
crucial to the development of an overall response to
commercial sexual exploitation and sex trafficking of minors
at the earliest opportunity. That said, many law enforcement
personnel do not recognize commercial sexual exploitation and
sex trafficking of minors as serious problems. As a result,
they may fail to identify victims of these crimes and may be
uncertain about how to handle these cases.
"Recently the Committee on The Commercial Sexual Exploitation
and Sex Trafficking of Minors in the United States
(Committee), Institute of Medicine and National Research
Council issued a report with The National Academies Press
entitled Confronting Commercial Sexual Exploitation and Sex
Trafficking of Minors in the United States, found that
"Although efforts to train personnel within the legal system
to address human trafficking have increased, the majority of
personnel in the system have not been trained to recognize and
respond to suspected or confirmed cases of commercial sexual
exploitation and sex trafficking of minors." The Committee
further observed that "Juvenile justice personnel need
training in identifying victims of trafficking who are in the
system on charges unrelated to prostitution through intake
screenings, runaway and homeless programs, and programming in
juvenile detention centers." Recommendations by the Committee
included the establishment of diversion programs so that youth
identified as victims of commercial sexual exploitation and
sex trafficking receive treatment as part of their
rehabilitation or in lieu of punishment; and that juvenile
justice agency personnel should refer youth identified as
victims of commercial sexual exploitation and sex trafficking
to appropriate treatment services. The Committee further
recommended that states 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
and that such laws should apply to all children and
adolescents under age 18.
"It has also been recognized that many victim and support
service providers working with vulnerable youth lack an
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understanding of commercial sexual exploitation and sex
trafficking, and therefore may not recognize youth in their
care who are at risk of or are victims/survivors of these
abuses. As a result, these service providers sometime fail to
connect youth in need to appropriate and timely services. The
Committee further acknowledged that victims and survivors of
commercial sexual exploitation and sex trafficking are
frequently in need of services, often including out-of-home
placement, which are limited and often nonexistent. This bill
would assist in insuring that law enforcement offices, other
stakeholders, and providers receive the appropriate training
to better assist the victims of commercial sexual exploitation
and sex trafficking and where necessary the appropriate
treatment and services for the care and treatment of exploited
children. This bill would further provide for a consistent
and appropriate legal response to victims and survivors of
commercial sexual exploitation and sex trafficking."
7)Argument in Opposition: According to The California State
Sheriffs' Association, "We are sympathetic to the plight of
crime victims, especially minor victims of human trafficking.
That said, this bill's response to horrific situation is to
inappropriately blend the roles of members of the criminal
justice system, potentially allow criminals to escape
liability, and inadvertently encourage human traffickers to
use minors in their illicit trade.
"It is not the role of a frontline law enforcement officer to
make a determination that a person is actually the victim of a
crime. Rather, officers gather facts and investigate crime
scenes to form reasonable beliefs about what might have
transpired. It is the duty of the prosecutor to allege
liability and victim status, and perhaps confer immunity to
certain parties. This bill jumbles that relationship and
requires peace officers to effectively determine whether or
not certain persons are criminally liable for their behavior.
The bill further usurps the roles of judges and juries who
ultimately determine culpability and punishment.
"We also fear that this bill, inasmuch as it automatically
grants immunity to a minor who has committed any offense that
is not a violent felony if it results from human trafficking,
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will allow offenders to escape punishment. Again, this
decision should be made by the judicial system and not
frontline law enforcement officers. Additionally, given the
immunity provisions this bill creates, we believe that human
traffickers would be encouraged to utilize minors in their
illegal activities because minors are effectively precluded
from being arrested, charged, or penalized."
8)Related Legislation:
a) AB 1675 (Stone), would specify that a minor who commits
those crimes is not subject to criminal charges in the
juvenile court, but he or she may be adjudged a dependent
child of the child welfare court. AB 1675 is pending
hearing in Assembly Public Safety Committee.
b) AB 1731 (Atkins), authorizes the chief probation officer
of a county to create a program to provide services to
youth within the county that address the need for services
relating to the commercial sexual exploitation of youth.
AB 1731 is pending hearing in Assembly Appropriations.
c) AB 1761 (Weber), would create an affirmative defense
against a charge of a nonviolent crime that was committed
as a direct result of being a human trafficking victim. AB
1761 is pending hearing in the Assembly Public Safety
Committee.
d) AB 1762 (Campos), would allow an individual convicted of
a nonviolent crime while he or she was human trafficking
victim to apply to the court to vacate the conviction at
any time after it was entered. AB 1762 is pending hearing
Assembly Appropriations Committee.
e) SB 1322 (Mitchell), would decriminalize specified
prostitution related offenses committed by person under 18,
but would authorize a peace officer to take a minor into
temporary custody. SB 1322 is pending hearing in Senate
Public Safety Committee.
9)Prior Legislation:
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a) AB 1585 (Alejo), Chapter, 708, Statutes of 2014,
provides that a defendant who has been convicted of
solicitation or prostitution may petition the court to set
aside the conviction if the defendant can establish by
clear and convincing evidence that the conviction was the
result of his or her status as a victim of human
trafficking.
b) AB 2040 (Swanson), Chapter 197, Statutes of 2012,
provides that a person who was adjudicated a ward of the
court for the commission of a violation of specified
provisions prohibiting prostitution may petition a court to
have his or her records sealed as these records pertain to
the prostitution offenses without showing that he or she
has not been subsequently convicted of a felony or
misdemeanor involving moral turpitude, or that
rehabilitation has been attained.
c) AB 1940 (Hill), of the 2011-12 Legislative Session,
would have authorized a court to seal a record of
conviction for prostitution based on a finding that the
petitioner is a victim of human trafficking, that the
offense is the result of the petitioner's status as a
victim of that crime, and that the petitioner is therefore
factually innocent. AB 1940 was held on the Assembly
Committee on Appropriations' Suspense File.
d) AB 702 (Swanson), of the 2011-12 Legislative Session,
would have allowed a person adjudicated a ward of the court
or a person convicted of prostitution to have his or her
record sealed or conviction expunged without showing that
he or she has not been subsequently convicted or that he or
she has been rehabilitated. AB 702 was never heard by this
Committee and was returned to the Chief Clerk.
e) AB 22 (Lieber), Chapter 240, Statutes of 2005, created
the California Trafficking Victims Protection Act, which
established civil and criminal penalties for human
trafficking and allowed for forfeiture of assets derived
from human trafficking. In addition, the Act required law
enforcement agencies to provide Law Enforcement Agency
Endorsement to trafficking victims, providing trafficking
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victims with protection from deportation and created the
human trafficking task force.
REGISTERED SUPPORT / OPPOSITION:
Support
Coalition to Abolish Slavery & Trafficking (Sponsor)
ACT for Women and Girls
American Academy of Pediatrics
American Association of University Women Long Beach
California Church IMPACT
California Public Defenders Association
California Women's Law Center
CAST Survivor Advisory Caucus
California Public Defenders Association
Clergy and Laity United for Economic Justice
Coalition for Humane Immigrant Rights of Los Angeles
Department on the Status of Women, City and County of San
Francisco
Housing California
Legal Services for Prisoners with Children
Los Angeles Alliance for a New Economy
Opening Doors
National Association of Social Workers, California Chapter
National Council of Jewish Women CA
Religious Action Center of Reform Judaism
Shared Hope International
Opposition
California State Sheriffs' Association
Office of the District Attorney, Alameda County
Sacramento County District Attorney
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744
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