BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2199 Hearing Date: June 21, 2016
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|Author: |Campos |
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|Version: |April 25, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Sexual Offenses Against Minors: Persons In a Position
Of Authority
HISTORY
Source: Author
Prior Legislation:None Known
Support: Association for Los Angeles Deputy Sheriffs; Board of
Behavioral Sciences;
California Association of Code Enforcement Officers;
California Police Chiefs Association; California
District Attorneys Association; California Narcotic
Officers Association; California Police Chiefs
Association; California State Sheriff's Association;
Child Abuse Prevention Center; Crime Victims United of
California; Los Angeles County Professional Peace
Officers Association; Los Angeles Police Protective
League; Riverside Sheriffs Association; Secular
Coalition for California
Opposition:American Civil Liberties Union of California; Legal
Services for Prisoners with Children
Assembly Floor Vote: 77 - 3
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PURPOSE
The purpose of this bill is to define a two-year sentence
enhancement where a defendant who committed a sex crime against
a minor held a position of authority over the minor, as
specified.
Existing U.S. Supreme Court decisional law establishes that
California's determinate sentencing law prior to enactment of SB
40 (Romero) in 2007 violated the Sixth Amendment right of the
accused to a trial by jury. (Cunningham v. California (2007)
549 U.S. 270.)
Existing U.S. Supreme Court decisional law established that to
conform California law to Constitutional requirements,
California may either require juries "to find any fact necessary
to the imposition of an elevated sentence" or "permit judges
genuinely 'to exercise broad discretion . . . within a statutory
range.'" (Cunningham v. California, supra, 549 U.S. 270.)
Existing law provides, in response to the Cunningham decision,
that when a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the
appropriate term shall rest within the sound discretion of the
court. (Pen. Code § 1170, subd. (b); (SB 40 (Romero) - Ch. 3,
Stats. 2007.)
Existing law provides that prior to sentencing, either party or
the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation,
as specified. In determining the appropriate term, the court
may consider the record in the case and other relevant material,
testimony and argument. (Pen. Code § 1170, subd. (b).)
Existing law provides that the court may not impose an upper
term by using the fact of any enhancement upon which sentence is
imposed. (Pen. Code § 1170, subd. (b).)
Existing law provides that the Judicial Council shall promote
uniformity in sentencing through rules providing criteria for
the sentencing court to consider in making any sentencing
decision, including imposition the lower, middle or upper term
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or a sentence enhancement. (Pen. Code 1170.3.)
Existing California Rules of Court, provide that:
When a sentence of imprisonment is imposed, or the
execution of a sentence of imprisonment is ordered
suspended, the sentencing judge must select the upper,
middle, or lower term on each count for which the defendant
has been convicted, as provided in section 1170(b) and
these rules.
In exercising his or her discretion in selecting one of
the three authorized prison terms referred to in section
1170(b), the sentencing judge may consider circumstances in
aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. The relevant
circumstances may be obtained from the case record, the
probation officer's report, other reports and statements
properly received, statements in aggravation or mitigation,
and any evidence introduced at the sentencing hearing.
To comply with section 1170(b), a fact charged and found
as an enhancement may be used as a reason for imposing the
upper term only if the court has discretion to strike the
punishment for the enhancement and does so. The use of a
fact of an enhancement to impose the upper term of
imprisonment is an adequate reason for striking the
additional term of imprisonment, regardless of the effect
on the total term.
A fact that is an element of the crime upon which
punishment is being imposed may not be used to impose a
greater term.
The reasons for selecting one of the three authorized
prison terms referred to in section 1170(b) must be stated
orally on the record, including where the court imposes the
middle term. (Cal. Rule of Court, 4.420.)
Examples of factors most relevant to the aggravated
manner in which a sex crimes was committed against minor
include:
o The defendant induced a minor to commit or
assist in the commission of the crime;
o The defendant threatened witnesses,
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unlawfully prevented or dissuaded witnesses from
testifying, suborned perjury, or in any other way
illegally interfered with the judicial process;
o The manner in which the crime was carried out
indicates planning, sophistication, or
professionalism;
o The defendant took advantage of a position of
trust or confidence to commit the offense.
.
Specified aggravating factors also in include a
defendant's criminal history and
The court can consider other factors statutorily
declared to be circumstances in aggravation.
This bill provides that any person who is found guilty of felony
statutory rape (when the adult is 21 years of age or older, and
the minor is under 16 years of age) who holds a "position of
authority" over the minor is subject to an additional term of
two-years.
This bill provides that any person who is found guilty of the
following acts who holds a "position of authority" over the
victim is subject to an additional term of two-years in state
prison if convicted of the felony offense in lieu of the
alternate misdemeanor offense (when the offenses are alternate
felony/misdemeanor "wobblers"):
Sexual penetration, oral copulation and sodomy when the
adult is 21 years of age or older, and the minor is under
16 years of age.
Lewd acts with a 14-15 year old when the adult is 10
years older or more.
This bill defines an offender in a "position of authority" over
a victim as "a person, by reason of that position, is able to
exercise undue influence over a minor." A position of authority
includes, but is not limited to, a stepparent, foster parent,
partner of the parent, caretaker, youth leader, recreational
director, athletic manager, coach, teacher, counselor,
therapist, religious leader, doctor, employer, or employee of
one of the aforementioned persons.
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This bill defines "undue influence" through a reference to
Welfare and Institutions Code Section 15610.70, which defines
the term as "excessive persuasion that causes another person to
act or refrain from acting by overcoming that person's free will
and results in inequity." In determining whether a person
exercised undue influence over another, the following factors
are applied:
The victim was vulnerable, as shown, for example by the
victim's age, incapacity, education, impaired cognitive
ability, or related factors.
The basis or nature of the apparent "authority,"
including, for example, being the victim's fiduciary,
family member, health care provider, spiritual adviser or a
related position.
The actions or tactics used by the "influencer,
including, for example,
o Controlling life necessities, medication,
sleep and access to information or others
o Use of affection, intimidation or coercion
o Changes in personal property rights,
especially with secrecy or haste
The equity of the result, including, for example,
economic consequences, divergence from the victim's plans
or intents.
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
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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
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
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Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The dynamic between the perpetrators and victims in
statutory rape situations are often very unequal
because perpetrators have the power to shape the
victims intuitions and feelings about the
relationship, especially perpetrators who hold a
position of authority over the minor like a teacher,
coach, family friend or family member. 14 and 15 year
olds are the most vulnerable to the influences of a
person in a position of authority, in addition to
being one of the most targeted age groups because
these perpetrators know their victim's ages, their
vulnerabilities and have direct responsibility over
them and can exert undue influence.
Statutory rape cases are often misconceived as a
consensual relationship between an adult and a minor,
however, researchers state that many victims have a
delayed reaction to being manipulated into a sexual
relationship, which can lead to negative outcomes like
an increased risk for delinquency and longer-term
psychological effects. Although the victims may deny
harm, researchers argue this cannot be taken at face
value because victims often have delayed reactions and
"later come to understand the inherent power
differential in the relationship, the subtle
manipulation they were subjected to, and the adult's
use of implied or actual threats" (Grover, 2003).
Currently, cases covered under this bill receive
similar sentences to non-violent offenses like car
theft because unlike the sentences for sexual
relations with minors 13 and younger that have strong
penalties (3, 6 or 8 year or life sentences), cases
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with 14 and 15 year olds are minimal (16 months, 2
years or 3 years).
2. Existing Penalties for the Offenses Subject to Enhancement
Under This Bill
Under existing law "unlawful sexual intercourse" and related
forms of illegal sodomy, oral copulation, sexual penetration and
lewd and lascivious acts with a minor who is 14 or 15 years of
age are punished on a scale depending on the conduct of the
perpetrator, and the respective ages of the defendant and the
victim of the crime.
Minors, by law, do not have the capacity to consent to sexual
acts. The essence or purpose of the laws to which the
enhancement defined by this bill would apply is to protect
children from adults who are in a position of authority or
influence over the minors involved. This bill thus would impose
an enhancement for something that is typically inherent in the
underlying crime and the basis for the punishments imposed under
existing law.
3. Basic Sentencing Rules and Procedures applied to this Bill -
A Fact used to Impose an Enhancement cannot Support an Upper
Term Sentence
The Enhancement in this Bill Considered Alone
The sentencing laws are designed to allow the sentencing court
to rely on a wide range of aggravating and mitigating factors to
impose an upper term, middle or lower term. The court must
state on the record the reasons for any sentencing choice. (Pen
Code §§ 1170, subds. (b)-(c), 1170.1, subd. (d).)
This bill would define a sentence enhancement in sex crimes
against a minor that are based on the age of the defendant and
the minor. An enhancement of two years would be imposed where
the defendant held "a position of authority" over the minor.
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The bill further defines "position of authority" as a position
or relationship that gives the perpetrator "undue influence"
over the minor.
Because abuse of a position of authority occurs in many cases
where an adult engaged in illicit sexual conduct with a minor,
the bill appears to be a penalty increase applicable to a very
large proportion of these offenses. The application of the
bill, however, would be affected by other sentencing rules.
The Enhancement in this Bill Applied in the Context of Existing
Sentencing Law
The Rules of Court provide guidance to the sentencing court in
imposing sentence. The rules include a list of specified
factors in aggravation, although courts are not limited to the
enumerated factors. A common factor in aggravation in a sex
crime committed by an adult against a minor is the following:
"The defendant took advantage of a position of trust or
confidence to commit the offense." The abuse of a position of
influence or trust is often the major reason the defendant was
able to commit the offense. The author's statement in the
Assembly analysis refers to this point.
A fact that is an element of or inherent in an offense cannot be
used as factor in aggravation or an enhancement. (Cal. Rules
of Court, rule 4.420 (d).) For example, the fact that the
defendant suffered great bodily harm cannot be used as to
enhance the sentence for manslaughter. (People v. Piceno (1987)
195 Cal.App.3d 1353, 1357; See, People v. Dixon (1993) 20
Cal.App.4th 1029, 1038.) The fact that a defendant took
advantage of an elderly person to commit a financial crime could
not likely be used as a factor in aggravation to impose an upper
term in a conviction under Penal Code Section 368 for a
financial crime against a person older than 65 years of age.
The use of great violence could not likely be used as a factor
in aggravation in a murder committed with a firearm, as such a
crime inherently involves violence and an enhancement of 25
years would be imposed because the defendant used a firearm.
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It is another basic feature of California sentencing law that a
fact used to impose an enhancement cannot be used to impose an
upper term. An upper term is essentially considered a sentence
enhancement. (Pen. Code § 1170, subd. (b).) If a defendant was
convicted of engaging in sexual conduct with a minor under age
of 16 crime and the prosecutor proved that the defendant
occupied a position of authority, the court could impose the
two-year enhancement defined or described by this bill.
However, the court could not likely impose an upper term based
on the aggravating factor that the defendant "took advantage of
a position of trust or confidence" to commit the crime, as that
factor greatly overlaps with an enhancement based on the
defendant's use of a position of authority to commit the crime.
This is particularly likely because this bill defines a position
of authority in terms of "undue influence over the minor."
For example: If the court imposes the two-year enhancement
because the defendant had a position of authority, the court
could only impose the lower (16 months) or middle ( two years)
term, if no other factors in aggravation exist. The crimes
covered by the enhancement defined in this bill do not involve
force, violence or weapons. Thus, in many cases the only
significant aggravating factor is likely to be an abuse of a
position of authority or trust. The result would be a maximum
possible increase of one year over the upper (three years) term
maximum sentence under current law. If the court imposed the
enhancement and the lower term (16 months), the maximum sentence
would be three years and 4 months.
The court could, however, rely on the defendant's position of
authority or undue influence over the minor as a factor in
aggravation to impose an upper term, and not the enhancement.
This sentencing choice would result in no change over the
current maximum sentence.
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Prosecutor's Arguments that other Factors in Aggravation would
Justify Imposition of the Upper Term
In discussions with committee staff, prosecutors have argued
that these cases generally involve factors other than abuse of
a position of authority and trust that the court could rely upon
in imposing an upper term. Specifically mentioned were the
degree of callousness involved, the vulnerability of the victim,
whether the victim induced a minor (other than the victim) to
assist in the crime, planning and sophistication and whether the
defendant interfered with the judicial process.
Arguably, it would be difficult to separate the callous nature
of the offense, the vulnerability of victim and the defendant's
planning or sophistication from the fact that an adult defendant
abused a position of authority and trust to prey on minor for
sexual gratification. The victim is vulnerable because of the
defendant's position of authority and influence and the
defendant would show callousness in abusing his or her position.
The ability to manipulate a vulnerable victim also arguably
shows planning and sophistication, possibly merging that factor
with the enhancement as well. The fact that a defendant used
another minor to commit the offense would be a separate factor
in aggravation. Interference with the judicial process can
often be charged as a felony. (Pen. Code § 136.1) If the
defendant recruited others to interfere with the judicial
process, a conspiracy could be charged. However, if
interfering with the judicial process is not charged as a
separate crime, that can be the basis of a factor in
aggravation.
Sentencing law is complex and it is difficult to predict how the
enhancement would be applied in individual cases. The
application of the enhancement defined by this bill is likely to
be fully determined through litigation over time. This bill
would add to the complexity of sentencing law, which is so
complex currently that judges often make errors in imposing
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sentence. These errors would be subject to challenge and
correction on appeal.
4.California Sentencing is so Complex as to often Result in
Sentencing Errors That Require Remand to Trial Courts or
Correction of Unauthorized Sentences
While sentences may not change substantially if this bill is
enacted, sentencing calculations and decisions will become more
complex. Courts and practitioners very often make mistakes in
sentencing. It is not uncommon for cases to be remanded to the
trial court from the appellate court to fix a sentencing error.
Sentencing has become so complex that it is not unusual for an
inmate to learn that he or she faces a greater sentence than the
one the court imposed, because the court failed to impose a
mandatory penalty. While a defendant cannot receive a greater
sentence because he or she appealed, an "unauthorized" sentence
can be corrected at any time.
5.The Definition of Undue Influence in the Bill is Drawn from
Elder Financial Abuse Law and May be Difficult to Apply in Sex
Crimes Against Minors
This bill imports a definition of "undue influence" from the
Welfare and Institutions Code that is complex on its own. This
standard or definition of undue influence was added to the code
by AB 140 (Dickinson) Ch. 668, Stats. 2013. The standard is
designed for cases of financial abuse of elderly persons. Many
of the factors in the standard would not apply in a case
involving sex between an adult and a minor. This could lead to
confusion for juries and be the basis for defendants to argue
that their conduct is not described in the applicable definition
of an abuse of authority or influence.
6. Author's Proposed Amendment to Strike the Reference to an
"Employee" as a Person of Authority Over a Minor
The bill includes an "employee" as a person of authority who
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could exert undue influence on a minor. Prosecutors have
informed the author that an "employee" should not be included as
a person of authority over a minor. The author has agreed to
amend the bill to strike "employee" from the descriptive list of
persons in a position of authority.
7. Deterrence and Punishment Issues Generally
Punishment Theory - Just Deserts
The use of criminal sentences to punish, rather than
rehabilitate or incapacitate an offender, is described as "just
deserts" in criminology. A 2002 article in the Journal of
Personality and Social Psychology succinctly described the
theory:
The theory of just deserts is retrospective rather than
prospective. The punisher need not be concerned with
future outcomes, only with providing punishment
appropriate to the given harm. Although it is
certainly preferable that the punishment serve a
[deterrence] function? its justification lies in
righting a wrong, not a ? future benefit. The central
precept? is that the punishment be proportionate to the
harm. The task ?is to assess the magnitude of the harm
and to devise a punishment that is proportionate in
severity, if not in kind. Kant (1952) recommended
censure proportionate to a perpetrator's "internal
wickedness," a quantity that may be approximated by
society's sense of moral outrage over the crime. (Why
do We Punish?, Journal of Personality and Social
Psychology, (2002) Vol. 83, No. 2, 284-299, Carlsmith,
Darley and Robinson.)<1>
Deterrence Issues
Criminal justice experts and commentators have noted that, with
regard to sentencing, "a key question for policy development
regards whether enhanced sanctions or an enhanced possibility of
---------------------------
<1>
http://www.colgate.edu/portaldata/imagegallerywww/184416d4-5863-4
a3e-a73b-b2b6b86e7b60/ImageGallery/Carlsmith_Darley_Robinson_2002
.pdf
AB 2199 (Campos ) PageN
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being apprehended provide any additional deterrent benefits.
Research to date generally indicates that increases in
the certainty of punishment, as opposed to the
severity of punishment, are more likely to produce
deterrent benefits.<2>
A comprehensive report published in 2014, entitled The
Growth of Incarceration in the United States, discusses the
effects on crime reduction through incapacitation and
deterrence, and describes general deterrence compared to
specific deterrence:
A large body of research has studied the effects of
incarceration and other criminal penalties on crime.
Much of this research is guided by the hypothesis that
incarceration reduces crime through incapacitation and
deterrence. Incapacitation refers to the crimes
averted by the physical isolation of convicted
offenders during the period of their incarceration.
Theories of deterrence distinguish between general and
specific behavioral responses. General deterrence
refers to the crime prevention effects of the threat
of punishment, while specific deterrence concerns the
aftermath of the failure of general deterrence-that
is, the effect on reoffending that might result from
the experience of actually being punished. Most of
this research studies the relationship between
criminal sanctions and crimes other than drug
offenses.
In regard to deterrence, the authors note that in "the
classical theory of deterrence, crime is averted when the
expected costs of punishment exceed the benefits of
offending. Much of the empirical research on the deterrent
power of criminal penalties has studied sentence
enhancements and other shifts in penal policy. . . .
Deterrence theory is underpinned by a rationalistic
----------------------
<2> Valerie Wright, Ph.D., Deterrence in Criminal Justice
Evaluating Certainty vs. Severity of Punishment (November 2010),
The Sentencing Project
(http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pd
f.)
AB 2199 (Campos ) PageO
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view of crime. In this view, an individual
considering commission of a crime weighs the benefits
of offending against the costs of punishment. Much
offending, however, departs from the strict decision
calculus of the rationalistic model. Robinson and
Darley (2004) review the limits of deterrence through
harsh punishment. They report that offenders must
have some knowledge of criminal penalties to be
deterred from committing a crime, but in practice
often do not."<3>
Members may wish to discuss whether imposing enhancements
for factors that are often inherent in crimes involving
illicit sexual conduct between minors and adults would
deter possible offenders.
The authors of the 2014 report discussed above conclude
that incapacitation of certain dangerous offenders can have
"large crime prevention benefits," but that incremental,
lengthy prison sentences are ineffective for crime
deterrence:
Whatever the estimated average effect of the
incarceration rate on the crime rate, the available
studies on imprisonment and crime have limited utility
for policy. The incarceration rate is the outcome of
policies affecting who goes to prison and for how long
and of policies affecting parole revocation. Not all
policies can be expected to be equally effective in
preventing crime. Thus, it is inaccurate to speak of
the crime prevention effect of incarceration in the
singular. Policies that effectively target the
incarceration of highly dangerous and frequent
offenders can have large crime prevention benefits,
whereas other policies will have a small prevention
effect or, even worse, increase crime in the long run
if they have the effect of increasing postrelease
criminality.
Evidence is limited on the crime prevention effects of
most of the policies that contributed to the post-1973
increase in incarceration rates. Nevertheless, the
evidence base demonstrates that lengthy prison
----------------------
<3> Id. at 132-133.
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sentences are ineffective as a crime control measure.
Specifically, the incremental deterrent effect of
increases in lengthy prison sentences is modest at
best. Also, because recidivism rates decline markedly
with age and prisoners necessarily age as they serve
their prison sentence, lengthy prison sentences are an
inefficient approach to preventing crime by
incapacitation unless they are specifically targeted
at very high-rate or extremely dangerous offenders.
For these reasons, statutes mandating lengthy prison
sentences cannot be justified on the basis of their
effectiveness in preventing crime.<4>
WOULD REQUIRING ENHANCEMENTS BASED THE DEFENDANT'S POSITION OF
AUTHORITY IN SEX CRIMES DEFINED BY THE AGE OF THE PARTICIPANTS
DETER PERSONS FROM COMMITTING SUCH OFFENSES?
-- END -
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<4> Id. at 155-156 (emphasis added).