BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1129       Hearing Date:    April 19, 2016    
          
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          |Author:    |Monning                                              |
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          |Version:   |February 17, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|JM                                                   |
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                         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  










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          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  










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          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  










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          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.  











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               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  










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               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.










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          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










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          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









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          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,  










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          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?










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