BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1129 Hearing Date: April 19, 2016
-----------------------------------------------------------------
|Author: |Monning |
|-----------+-----------------------------------------------------|
|Version: |February 17, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |No |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JM |
| | |
-----------------------------------------------------------------
Subject: Prostitution: Sanctions
HISTORY
Source: California Public Defenders Association
Prior Legislation:SB 244 (Liu) 2014, Died in Assembly Public
Safety
Support: American Civil Liberties Union; Legal Services for
Prisoners with Children
Opposition:California District Attorneys Association; California
Police Chiefs Association
PURPOSE
The purpose of this bill is to repeal statutory provisions
imposing mandatory minimum prostitution jail terms for repeat
offenders and specifically authorizing the court to impose a
driver's license suspension on a first-time offender where a
SB 1129 (Monning ) PageB
of?
prostitution offense occurred within 1,000 feet of a residence.
Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty of
misdemeanor. 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 any person is convicted for a second
prostitution offense 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).)
Existing law provides that any person convicted for a third
prostitution offense 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).)
Existing law authorizes a sentencing court to suspend the
driver's license of a person convicted of a prostitution offense
that occurred with the use of a motor vehicle within 1,000 feet
of a "private residence." The court may restrict for six months
the person's driving privilege to necessary travel to and from
the person's place of employment or education. If operation of
a motor vehicle is necessary for the performance of the person's
employment duties, the court may allow driving for that purpose.
(Pen. Code § 647, subd. (k); Veh. Code § 13201.5.)
This bill repeals the mandatory minimum terms for repeated
prostitution offenses, leaving discretion with the court to
impose an appropriate sentence.
This bill repeals the specific authority of a court to order
suspension of the driver's license of a convicted prostitution
defendant if the offense was committed with a vehicle within
SB 1129 (Monning ) PageC
of?
1,000 feet of a residence.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
SB 1129 (Monning ) PageD
of?
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
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:
Mandatory minimum sentencing laws grew largely out of
1980's tough-on-crime laws that sought stiffer
punishments for drug and violent crimes and shifted
much of sentencing from rehabilitation to punishment
and deterrence. Statutory minimum sentences have
increased jail and prison populations over subsequent
decades and stripped the court's ability to address
the underlying issues that cause a person to offend in
the first place.
SB 1129 (Monning ) PageE
of?
California's prostitution laws contain some of the
harshest mandatory misdemeanor penalties by requiring
a mandatory minimum sentence of up to 90 days in jail
for reoffending. Penal Code Section 647 requires that
upon a second prostitution conviction? an offender
must serve a minimum of 45 days in county jail, and 90
days upon a third conviction. The court can also ?
restrict an individual's ability to drive for up to
six months, so long as the offense involved the use of
a vehicle, or was committed within a thousand feet of
a residence. These sentences are based on the
assumption that mandatory jail time will deter future
offenders. The efficacy of mandatory minimums as a
deterrent to crime has been the subject of debate,
with many researchers concluding that they have been
massively ineffective. An October, 2011 United States
Sentencing Commission report to the US Congress state
that: "Some scholars counter the claims?that
[mandatory minimum] penalties serve as an effective
deterrent to crime. ?[R]esearch ? has found little
evidence to support the argument that mandatory
minimums prevent crime. In fact, many assert ? [that]
certainty of punishment through the prosecution of
more offenders ? is the more cost effective deterrent
compared to the severity of punishment?" (Page 98)
California's prison and jail overcrowding problem ?
has culminated in the realignment of the entire
criminal justice system, pushing supervision of more
serious offenders to the county jails, and an increase
in the use of? supervision for low-level?offenses.
Requiring a "john" or sex-worker to spend a minimum of
45, or 90 days in jail ? creates the potential for the
need to release more serious offenders in order to
make room for those convicted of
recidivist-prostitution.
Additionally, the mandatory sentences required under
conviction of Penal Code 647 ? specifically forbid
judicial intervention. This ? prevents a judge from
tailoring a sentence for a specific offender, or
SB 1129 (Monning ) PageF
of?
ordering alternative probationary sanctions, such as
participation in diversion and rehabilitation programs
that target the root cause of the recidivism. The
Sentencing Commission's 2011 report further describes
that: "[T]he Judicial Conference has long urged
Congress 'to reconsider the wisdom' of mandatory
minimum penalties because they 'block judges from
considering the individual circumstances of particular
cases.' ?[T]he resulting sentence may be unfair or
irrational." (Page 95)
Mandatory jail time also creates a potential
disincentive for offenders to take part in ? probation
or treatment, as an offender may opt to choose the 45
days in jail in order to avoid [lengthy] supervision
and drug treatment. A mandatory sentence shifts
discretion from judges to prosecutors who can create
their own charging schemes and use the threat of
incarceration to gain plea-deal convictions. Many of
those who engage in prostitution are victims of human
trafficking and forced into sex work. They should not
be incarcerated for 45 to 90 days. Ending mandatory
minimums will allow judges to recognize trafficking
and use discretion in sentencing. Judges will have
discretion to order a sentence longer than 90 days for
a recidivist john, or recommend diversion for
trafficking victims.
SB 1129 will also remove the current Vehicle Code
Section 13201.5 provisions that allow the courts to
remove a person's driving privileges for engaging in
prostitution. These punitive statutes allow a judge to
suspend a person's driver's license for up to 30 days,
or restrict their driver's license for up to 6 months,
if the prostitution was committed within 1,000 feet of
a private residence and with the use of a vehicle.
This arbitrary and summary removal of a person's
license for up to 6 months is excessive, and would
likely derail any rehabilitative efforts that could
dissuade an offender from engaging it further
prostitution.
SB 1129 (Monning ) PageG
of?
2.Enactment of Mandatory Minimum Sentences and Driver's
License Suspension Provisions
The authority of a court to suspend for 30 days the
driver's license of a prostitution offender was enacted by
AB 2949 (Harvey), Ch. 1019, Stats. of 1996. AB 1788
(Wright), Ch. 758, Stats. of 1998 authorized the court to
impose a six month suspension of a driver's license or a
convicted prostitution offender, except for travel to and
from work. The Senate Floor Analysis of AB 1788 explained:
The Prostitution Abatement and Neighborhood Protection
Act and authorized courts to suspend the driving
privilege of any person convicted of soliciting,
agreeing to, or engaging in, an act of prostitution
with the use of a vehicle and within 1,000 feet of a
private residence for up to 30 days. AB 2949's intent
was to deter individuals from "cruising" residential
neighborhoods in search of prostitutes. According to
Los Angeles County: "The existing 30 days suspension
is little more than an inconvenience for many
offenders. A six month suspension should cause
violators to think about potential penalties before
engaging in acts of prostitution in an automobile. It
will help keep prostitution away from residential
neighborhoods."
Committee staff is unaware of any studies of the effect the
driver's license suspension had on prostitution offenses
committed within 1,000 feet of private residence. Existing
law does not define the term "private residence." A
thousand feet is the length of three and 1/3 football
fields. It would appear that many, if not most,
prostitution offenses in urban areas occur within 1,000
feet of residences. Committee staff found no cases
applying or interpreting the license suspension provisions.
3.A Defendant Required to Serve a Minimum Jail Term as a
Condition of Probation is Likely to Refuse Probation
SB 1129 (Monning ) PageH
of?
If the court does not impose sentence for a repeated
prostitution offenses, but places the defendant on
probation, the 45 and 90-day terms must be imposed as a
condition of probation - the same penalty as the minimum
penalty for an executed sentence. Many, if not most,
county jails are crowded, particularly in urban areas. A
defendant who is convicted of a prostitution offense in a
county with crowded jail conditions would very likely
refuse probation because he would know that he would not
serve more than 45 or 90 days, depending on whether it is
the second or subsequent offense, upon a straight sentence
without probation.
A defendant who is not on probation cannot be monitored by
the probation department or the court. A defendant who is
not on probation cannot be ordered to engage in
rehabilitative or restorative justice programs. If the
odds of getting caught committing such a crime is low, and
that may be likely, such a person could remain a
significant source of demand for prostitution.
4.Study of Homeless Young People Engaged in Survival-Sex
Prostitution in New York City
A 2008 John Jay College study<1> of commercially, sexually
exploited homeless youth in New York city found that these
young people often sought out customers and found customers
for each other. Sexually exploited youth sought older
white customers who were perceived to have more money,
although the actual range of customers was relatively wide.
A 2012 New Yorker article reported that these young people
in lived in harsh conditions and risked becoming "lifers"
on the street. Programs and services for them were scarce
and typically short-term.<2>
5.Limited Studies of the Demographics of Prostitution
Customers
-------------------------
<1> https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf , pp
48-49,. 32-102.
<2> http://www.newyorker.com/magazine/2012/12/10/netherland
SB 1129 (Monning ) PageI
of?
A draft University of Chicago study by Steven Levitt and
Sudhir Alladi Venkatesh (Freakonomics) examined
street-level prostitution in certain Chicago neighborhoods
known for prostitution, including a neighborhood where
prostitution was controlled by pimps and a neighborhood
where prostitutes were independent. 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 low. Freakonomics publications later noted that the
cost of prostitution had declined in recent decades, likely
indicating that customers were spread across economic
classes.
Levitt found "many men making a few visits and a small
number of men making very frequent visits." He found that
25 johns were arrested twice and 2,969 johns were arrested
once. As in the Western Criminology Review study discussed
in Comment # 6, Leavitt concluded 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
of studies from cities across the country found wide
variance in education, income and ethnicity among
prostitution customers. There were some regional
differences, such as lower levels of education in
Indianapolis, marginally higher income in Portland, Oregon.
6.Recidivism Studies on Persons Convicted of Purchasing Sex
- Effects of Special Programs
A study in 2002 in the Western Criminology Review of a now
defunct first-offender program in Portland, Oregon (SEEP)
found very low recidivism rates for all prostitution
arrestees, regardless of whether they participated in SEEP,
SB 1129 (Monning ) PageJ
of?
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 from the data that an arrest, per
se, could have deterred offenders, as prostitution offenses
involve significant shame. The authors, however, 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 a avoid prostitution for
a substantial time in the future.
A number of other cities adopted special first-offender
prostitution diversion programs that educate "johns" about
the harms caused by or attendant to the commercial sex
trade. The San Francisco program - First Offender
Prostitution Program (FOPP) - was one of the first of these
programs. The program required men arrested for the first
time for a prostitution offense to attend a one-day course
of the harms caused or exacerbated by the demand for
prostitution. Men who completed the course were diverted
out of the criminal justice system. A report on the San
Francisco FOPP conducted by Abt Associates concluded that
program was well run and effective. The claims of a sharp
drop in recidivism in the Abt report have been harshly
criticized and questioned. One study by researchers from
DePaul University and American University found
methodological flaws in the Abt report. The study from
the Western Criminology Review (noted above) found that
recidivism rates attributable to FOPP programs 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.
DOES RESEARCH INDICATE THAT AN ARREST, PER SE, MAY BE A
SUBSTANTIAL DETERRENT FOR MEN WHO SOLICIT PROSTITUTES?
IS THERE DATA ABOUT THE EFFECT OF MANDATORY MINIMUM
PENALTIES IN EXISTING LAW FOR REPEAT PROSTITUTION
OFFENDERS?
SB 1129 (Monning ) PageK
of?
-- END -