BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 776 Hearing Date: May 12, 2015
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|Author: |Block |
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|Version: |April 6, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Disorderly Conduct: Prostitution
HISTORY
Source: California Against Slavery
Prior Legislation:SB 1388 (Lieu) Ch. 714, Stats. 2014
Support: The A-21 Campaign; Project Concerned; Burning Bush
Moments; Redeeming Love; California Police Chiefs
Association; Rolling Hills Covenant Church; Mary
Magdalene Project, Inc.; several individuals
Opposition:California Public Defenders Association
PURPOSE
The purpose of this bill is to 1) direct the sentencing court to
impose a fine of between $700 and $2,000 upon a defendant
convicted of a prostitution offense if the defendant offered to
provide, agreed to provide or provided compensation in exchange
for a lewd act from a person who was at least 18 years of age;
and 2) provide that a portion of the fine shall be retained by
the county and used to fund services to "victims of commercial
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sexual abuse."
Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty of a
misdemeanor.<1> This 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).)
Existing law provides that any person who solicits another
person to engage in any lewd or dissolute act in a public place
is guilty of a misdemeanor. (Pen. Code § 647, subd. (a).)
Existing law provides that where any person is convicted for a
second prostitution offense, the person shall serve a sentence
of at least 45 days, no part of which can be suspended or
reduced.
This bill provides that where the defendant is convicted of a
prostitution offense and the person to whom the defendant paid
or agreed to pay compensation was an adult, the defendant shall
pay a fine of between $700 and $2,000, in addition to any other
penalty or fine.
This bill provides that an undetermined percentage of the fine
shall be retained by the county of prosecution and used to fund
housing, counseling, and other direct services and "exit
programs" for victims of commercial sexual exploitation. The
board of supervisors shall designate a fund for deposit of
"moneys collected pursuant" to this special fine provision.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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
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<1> Soliciting or engaging in an act of prostitution is a form
of disorderly conduct. (Pen. Code § 647.)
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the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year 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).
While significant gains have been made in reducing the prison
population, 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). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has
contributed to reducing the prison population;
Whether a proposal addresses a major area of public
safety or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which
there is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1.Need for This Bill
According to the author:
SB 776, increases the base fine for individuals
convicted of soliciting prostitution. This measure
requires a court to impose a fine of not less than
$700 and not more than $2,000 on a defendant convicted
of soliciting prostitution. SB 776 would also require
counties to direct 75% of the collected fines to
victim services, such as shelter, counseling, and exit
programs for victims of commercial sexual exploitation
and sexual abuse.
The commercial sex industry operates on supply and
demand. While California criminalizes the solicitation
of prostitution, buyers of sex continue to be arrested
and prosecuted at a lower rate than exploited
individuals. Little is done to curb demand. SB 776
would help address this deficiency. Current law sets
the maximum fine at $1000 and has no minimum.
According to studies focused on sex buyers, the
majority of purchasers would be deterred with
increased fines .
SB 776 would deter demand of commercial sexual
exploitation while also increasing resources and help
for exploited victims.
2.Uncertain Interpretation and Application of this Bill -
Penalty Assessments Issue
The bill provides that any defendant convicted of a prostitution
offense in which the defendant was the party who offered to pay,
agreed to pay, or paid compensation to an adult for a lewd act
shall pay a fine of between $700 and $2,000, "in addition to any
other fine or penalty imposed." The base fine for a
prostitution offense is a maximum of $1,000. It is not clear
how courts would interpret this "additional" fine. Courts could
find that the fine would only be imposed after any base fine is
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imposed, as this is an additional fine applicable in specified
cases. Other courts might find that the fine must be imposed
regardless of whether the base fine is imposed. Courts that
understood that the fine had to be imposed would treat this
"additional fine" as if it were the base fine, with a mandatory
minimum of $700. In that case, no money would flow to all the
entities that receive the numerous penalty assessments that are
calculated as a percentage of the base fine, as discussed below.
Criminal fines are subject to "penalty assessments" that
effectively quadruple the base fine. A defendant ordered to pay
a fine of $2,000, would actually pay approximately $8,000.
Penalty assessments are designated for specific purposes,
according to an exceedingly complex formula. Unless
specifically exempted from penalty assessments, all fines are
subject to them. This bill provides that a set percentage of
the proceeds of the fine defined by this bill shall be used for
victim services. The bill does provide that the fine shall be
imposed "notwithstanding any other law. However, it is not clear
that the "notwithstanding" phrase exempts the fine from penalty
assessments. If the fine is not exempt from penalty
assessments, it is unclear if penalty assessments would apply to
the entire fine, or just the 25% not retained by the county.
3.Limited Distribution of Fines into the Victim Witness Fund for
Sex Trafficking Victims
The value of special fines to fund services for sexually
exploited persons - particularly juveniles - appears to be quite
limited. A negligible amount of income - $20,000 in 2013-14 is
generated from surplus money investments and penalties on
specific felony convictions.
The Victim Witness Assistance Fund is largely funded by a small
portion of the penalty assessments imposed on each criminal
fine. Local victim-witness assistance programs also receive
federal Victims of Crime Act and Violence Against Women Act
funding. In 2013-14, the fund was projected to have a negative
balance of $83,000. In 2014-15, the fund was projected to have
a balance (reserve) of $5.8 million due to a $10.1 million
General Fund loan repayment from 2011. The fund balance for
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2015-2016 is projected to be approximately $900,000, arguably
not a substantial sum in light of the need for assistance to
victims. Each county designates an agency to operate a victim
witness assistance program. The district attorney is the
designated agency in all but seven counties (three in probation
departments and one in a county sheriff's office).
There appears to be a great unmet need for funding
community-based agencies that provide services to sex
trafficking victims and commercially sexually exploited persons.
The fund created by this bill could raise funds that individual
counties could disburse to address specific problems in their
areas.
4.Effective Fines for Funding Services for Sexually Exploited
Persons; Author's Proposal for a $500 Fine, 75% of Which Would
Fund Services
A moderate and certain fine would appear to be the most
effective way to produce substantial amounts of money for
services to victims of commercial sexual exploitation. The
restitution fine - a minimum fine of $300 for a felony and $150
for a misdemeanor - provides substantial and steady funding for
the Victims of Crime Program. It appears that total revenues of
$60 million are expected for 2015-2016 from restitution
fines.<2> A $200 minimum fine would require the defendant to
actually pay $800 with penalty assessments - similar to the
amount of the $750 special fine in the introduced version of the
bill. The base fine - the amount of the fine stated in the
penalty for the crime, not including penalty assessment - is
paid to the county.
The author has proposed to amend the bill to require sex buyers
in prostitution cases to pay a base fine of at least $500, 75%
of which would be designated for services in each county for
commercially sexually exploited persons. The author has stated
that a fine of at least $500 appropriately addresses the harm
caused by the demand for prostitution, provides more money for
services and could deter potential prostitution customers.
(Comment #7 concerns research that has found that penalty
increases are not a deterrent to the commission of crimes.)
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<2>
http://www.ebudget.ca.gov/2015-16/pdf/GovernorsBudget/7500/7870.p
df
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A fine of $500 would require the defendant to pay at least
$2,150 fine - the base fine and mandatory penalty assessments on
the base fine, and a restitution fine. Other fees and costs
apply, including reimbursement to the county for court-appointed
counsel. Large criminal fines may be difficult to collect, as
collection could take years of effort and expense. The
estimated amount of uncollected court ordered debt in 2011 was
$10.2 billion.<3>
As noted in Comment # 5, the few demographic and economic
studies of prostitution customers indicate that they come from a
wide range of socio-economic backgrounds. It appears that
persons with low incomes are more likely to seek out
street-level prostitutes, and those are the persons most likely
to be arrested.<4> Without specific authority to reduce the
fine, the court could, pursuant to Penal Code Section 1385,
strike the entire fine provision if it found that the defendant
could not pay the fine, including penalty assessments. In that
case, no fine would be imposed at all. Authorizing the court to
reduce the minimum amount in an unusual case in the interests of
justice would make it more likely that a fine would actually be
imposed and collected in such cases.
To address concerns that many defendants will be unable to pay a
fine of over $2,000, it is suggested that the court be granted
authority to decline imposition of the full amount of the
mandatory minimum fine in unusual circumstances in the interests
of justice. As with numerous similar provisions in the Penal
Code, the bill should also provide that the court shall state on
the record the reason for not imposing the full minimum fine.
SHOULD THE BILL BE AMENDED TO REQUIRE SEX BUYERS IN PROSTITUTION
CASES TO PAY A MINIMUM BASE FINE, 75% OF WHICH WOULD BE PLACED
IN A FUND TO PROVIDE SERVICES FOR SEXUALLY EXPLOITED PERSONS?
SHOULD THE BILL BE AMENDED TO PROVIDE THAT THE SENTENCING COURT
CAN DECLINE TO IMPOSE THE FULL MINIMUM FINE IN UNUSUAL
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<3>
http://www.lao.ca.gov/reports/2014/criminal-justice/debt-collecti
on/court-ordered-debt-collection-111014.pdf
<4>
http://economics.uchicago.edu/pdf/Prostitution%205.pdf?q=venkates
h
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CIRCUMSTANCES IN THE INTERESTS OF JUSTICE?
5.Limited Studies of the Demographics of Prostitution Customers
According to a John Jay College study, commercially sexually
exploited homeless youth in New York often sought out customers,
rather than being solicited by adults. Particularly in
Manhattan, or through the Internet, CSEC (commercially sexually
exploited children) sought older white customers who were
perceived to have more money. (See Comment # 8) However, the
range of customers was relatively wide.
A draft University of Chicago study by Steven Levitt and Sudhir
Alladi Venkatesh (Freakonomics) considered street-level
prostitution in certain Chicago neighborhoods, including a
neighborhood where prostitution was controlled by pimps and a
neighborhood where prostitutes were independent.<5> Levitt
estimated that there were 1,200 acts of prostitution per arrest,
indicating that even street-level prostitution customers
generally need not fear arrest. The Chicago study noted that
more upscale prostitution occurred over the Internet and through
escort services, where the likelihood of arrest was especially
low.
Levitt found "many men making a few visits and a small number of
men making very frequent visits." He found 25 johns arrested
twice and 2,969 johns who were arrested once. As in the Western
Criminology Review study, Leavitt speculated that some men may
have learned from one arrest how to avoid another. However,
some johns may have been arrested multiple times because they
were not good at distinguishing between an actual prostitute and
a police decoy.
A 2008 review in the Electronic Journal of Human Sexuality<6> of
studies from cities across the country found wide variance in
education, income and ethnicity among prostitution customers.
There have been two studies of the attitudes of sex buyers by
Melissa Farley, Jacqueline Golding and others in Boston and
London that were based on interviews with men who self-reported
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<5>
http://economics.uchicago.edu/pdf/Prostitution%205.pdf?q=venkates
h . Levitt noted that the data was preliminary and cautioned
those who would cite the report, the study has been widely read
and cited.
<6> http://www.ejhs.org/volume11/brewer.htm.
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themselves as sex buyers. The sponsors and authors of the
studies stated that they were advocates for ending or limiting
commercial sex and argued that such activity was particularly
harmful to women. The purpose of the studies was in large part
to document harms caused by the demand for prostitution.
The Boston study included 101 men who stated that they had
purchased sexual services and 100 who stated they had not done
so. The authors had great difficulty recruiting men who had not
purchased sex for the study.<7> As the study participants were
not a random sample of men, and as there could have been no
confirmation of the men's sexual histories, the reports would
appear to be of limited statistical significance in determining
the number and characteristics of sex buyers. The authors
matched the socio-economic, age and ethnic characteristics of
the sex buyers and those who had not purchased sex. As the
authors had great difficulty finding participants who did not
buy sex, the characteristics of the men who reported never
buying sex essentially determined the characteristics of the sex
buyers. The Boston participants were chosen through
advertisements on-line and in newspapers. They were paid $45 to
engage in a two-hour interview.
The London study only considered interviews of men who
identified themselves as buyers of sex. The London participants
"were invited to participate via advertisements in local
newspapers. The advertisements listed a phone number,
guaranteed anonymity, and stated that payment of 20 would be
offered to cover the cost of transportation and as a token of
appreciation for their time."<8> The advertisements drew
"hundreds" of telephone calls from men who wanted to participate
in the study. The London study was sponsored by Eaves, "a
feminist organization committed to working to curb demand for
commercial sex acts, which increase sex trafficking and
organized crime in general" and Prostitution Research &
Education (PRE), "a U.S. non-governmental non-profit
organization which has since 1995 researched and documented the
harms resulting from prostitution and trafficking and explored
alternatives to prostitution."
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<7> http://www.newsweek.com/growing-demand-prostitution-68493
<8>
https://www.sm.ee/sites/default/files/content-editors/eesmargid_j
a_tegevused/Sooline_vordoiguslikkus/Inimkaubandus_ja_prostitusioo
n/men_who_buy_sex.pdf
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The studies concluded that prostitution customers come from a
wide range of socio-economic and ethnic backgrounds. The sex
buyers were described as having false beliefs about sex workers
and had little empathy for the sex workers from whom they bought
services.<9> The Boston study reported that sex buyers were
more criminally involved than those who did not buy sex. Given
the difficulty the researchers had in finding men who had not
bought sex, the significance in the differences between the two
classes of participants could be limited.
The participants were asked what would deter them from buying
sex. A wide range of penalties and consequences were
identified. Most men opined that being listed as a sex offender
would be the most significant deterrent, and also noted, for
example, being publicly identified as a sex buyer, a jail time
sentence and high fines. It does not appear that any
substantial number of participants had been convicted of a
prostitution offense and punished. Consistent with the Chicago
study of observed purchasers of sex, it did appear that most men
had little fear of being arrested.
6.Recidivism Studies of Persons Convicted of Purchasing Sex -
Effects of Special Programs
A study<10> in 2002 in the Western Criminology Review of a now
defunct first-offender program in Portland (SEEP) found very low
recidivism rates for all prostitution arrestees, regardless of
whether they were referred to SEEP and participated, were
referred to SEEP but did not attend, or were not referred to the
program. The study considered only a two-year period and a
relatively small number of offenders. The researchers inferred
that an arrest, per se, could have deterred offenders, as the
crime involves significant shame. The authors also questioned
if the offenders continued to solicit prostitutes but simply
learned how to avoid arrest. They could not say whether the
education from the SEEP program would have led the participants
to avoid prostitution for a substantial time in the future.
A number of cities around the country have adopted special
first-offender prostitution diversion programs that educate men
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<9>
https://www.sm.ee/sites/default/files/content-editors/eesmargid_j
a_tegevused/Sooline_vordoiguslikkus/Inimkaubandus_ja_prostitusioo
n/men_who_buy_sex.pdf
<10> http://wcr.sonoma.edu/v3n2/monto.html.
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arrested for soliciting an act of prostitution about the harms
caused by or attendant to the commercial sex trade. Initial
reports of the effectiveness of the programs have been sharply
criticized in peer-reviewed studies.<11> The study from the
Western Criminology Review (noted above) found that recidivism
rates attributable to the First Offender Prostitution Program
are difficult to measure, as johns arrested for prostitution
offenses can easily learn how to avoid arrest. Further, the
increasing shift of prostitution to the Internet makes it
difficult to measure recidivism.
7. Deterrence Issues - Little Support for the Deterrence Value
of Specific Penalties, but
Deterrence from the Certainty of Punishment
It is often argued that bills increasing penalties deter crime.
The deterrent value of an increased penalty depends on 1)
potential perpetrators knowing about the increased penalty, and
2) those persons deciding to avoid the penalty by not committing
the crime to which the increased penalties apply.
Criminologists generally accept the general deterrence of
criminal statutes - the tendency of people to avoid doing acts
that would subject them to criminal penalties. Criminologists
have, however, long been skeptical of the value of special
deterrence - deterring commission of a particular crime through
the specific penalty for that crime.<12>
Research appears to clearly establish that certainty of
punishment is a much more effective deterrent than the severity
of punishment.<13>
Discussions of deterrence in research have noted that the theory
of deterrence depends on potential criminals making rational
decisions based on risk and reward. However, people who commit
crimes often do not act rationally or wisely. For example,
researchers have reported that half of all state prison inmates
were under the influence of alcohol or drugs when they committed
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<11>
http://rightswork.org/wp-content/uploads/2012/09/John-Schools.Lov
ell.Jordan.7.12.pdf.
<12> (http://bjc.oxfordjournals.org/content/21/2/136.extract )
<13>
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
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their crimes.<14> It is likely that many persons seeking to buy
sexual services are intoxicated or under the influence of a drug
when doing so.
8.Seattle Law Enforcement Assisted Diversion Program for
Prostitution and Drug Offenders
The Seattle Police Department and other agencies and entities
have implemented a program of Law Enforcement Assisted Diversion
(LEAD). LEAD officers are authorized to take drug offenders and
sellers of prostitution services - categories of offenders that
may often overlap - directly to services and treatment. The
process bypasses the court system, saving court resources and
time.
The second evaluation of the program was recently released by
the University of Washington. Short and long term recidivism is
significantly lower for LEAD participants than for offenders in
the court system<15>, with better results over the long term.
LEAD programs could be one of the programs or efforts in helping
street-level sex workers transition out of their plight.
Without services to assist sex workers with underlying problems
of drug abuse, lack of housing and exploitation, focusing
prosecution efforts on sex purchasers will not likely produce
optimum results.
-- END -
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<14>
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
, p.2
<15> http://leadkingcounty.org/lead-evaluation/