BILL ANALYSIS Ó SB 1129 Page 1 Date of Hearing: June 14, 2016 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 1129 (Monning) - As Introduced February 17, 2016 SUMMARY: Repeals specified mandatory minimum sentences for specified prostitution offenses. Specifically, this bill: 1)Repeals the mandatory minimum terms for repeated prostitution offenses, leaving discretion with the court to impose an appropriate sentence as follows: a) Eliminates the requirement that a person convicted for a second prostitution offense must serve a sentence of at least 45 days, no part of which can be suspended or reduced SB 1129 Page 2 by the court, regardless of whether or not the court grants probation. b) Eliminates the requirement that a 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. 2)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 1,000 feet of a residence. EXISTING LAW: 1)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).) 2)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).) 3)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).) 4)Provides that any person convicted for a third prostitution offense shall serve a sentence of at least 90 days, no part of SB 1129 Page 3 which can be suspended or reduced by the court regardless of whether or not the court grants probation. (Pen. Code, § 647, subd. (k).) 5)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.) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: 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 sentencing many crimes from a rehabilitative approach, to a punitive, deterrence centered approach. The creation of statutory minimum sentences has not only increased jail and prison populations over subsequent decades; they have also stripped the court's ability to address the underlying issues that cause a person to offend in the first place. "California's misdemeanor crime provisions for prostitution contain some of the harshest mandatory penalties of all the current misdemeanor offenses by requiring a mandatory, minimum sentence of up to 90 days in jail for reoffending. Penal Code Section 647 requires that upon a second conviction of SB 1129 Page 4 prostitution charges an offender must serve a minimum of 45 days in county jail, and 90 days upon a third misdemeanor conviction. The mandatory sentence found in Penal Code 647 exists under the assumption that mandatory jail time will deter future offenders from engaging in prostitution. 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. "California's prison and jail overcrowding problem has reached crisis levels, and has culminated in pushing supervision of more serious offenders down to the county jails. Requiring a 'john' or sex-worker to spend a minimum of 45, or even 90 days in county jail for a misdemeanor like prostitution creates the potential for jails needing 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 require jail time in all instances, and even goes so far as to specifically forbid judicial intervention. This prohibition on court involvement prevents a judge from tailoring a sentence for a specific offender, or ordering alternative probationary sanctions, such as participation in diversion and rehabilitation programs that target the root cause of the recidivism. Mandatory jail time also creates a potential disincentive for offenders to take part in court mandated probation or treatment programs, as an offender may opt to choose the 45 days in jail in order to avoid longer supervision terms or required programs. "Many of those who engage in prostitution are themselves victims of human trafficking and are often n forced into sex work and should not be incarcerated for 45 to 90 days. Providing the courts discretion will allow judges to recognize trafficking and use their discretion in sentencing. With greater discretion a judge can order a sentence longer than 90 days for a recidivist john, or recommend a lesser, more programmatic-oriented option for victims of trafficking. SB 1129 Page 5 "SB 1129 will repeal the mandatory minimum sentencing requirements for repeat offenders of prostitution and ensure that California's crowded jails are not burdened with these non-violent, non-serious offenders. Removing mandatory jail time will ensure repeat offenders are still punished for breaking the law, but allows for judicial discretion in determining the suitability of the punishment. "SB 1129 will also remove the current statutory punishments outlined in Vehicle Code Section 13201.5, which 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." 2)Prostitution Generally: The basic crime of prostitution is a misdemeanor offense. (Pen. Code § 647(b).) Prostitution can be generally defined as "soliciting or agreeing to engage in a lewd act between persons for money or other consideration." Lewd acts include touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person. To implicate a person for prostitution themselves, the prosecutor must prove that the defendant "solicited" or "agreed" to "engage" in prostitution. A person agrees to engage in prostitution when the person accepts an offer to commit prostitution with specific intent to accept the offer, whether or not the offerer has the same intent. SB 1129 Page 6 For the crime of "soliciting a prostitute" the prosecutors must prove that the defendant requested that another person engage in an act of prostitution, and that the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication containing the request. The defendant must do something more than just agree to engage in prostitution. The defendant must do some act in furtherance of the agreement to be convicted. Words alone may be sufficient to prove the act in furtherance of the agreement to commit prostitution Violation of Pen. Code § 647(b) is a misdemeanor. For a first offense conviction of prostitution the defendant faces up to 180 days in jail. If a defendant has one prior conviction of prostitution he or she must receive a county jail sentence of not less than 45 days. If the defendant has two or more prior convictions, the minimum sentence is 90 days in the county jail. In addition to the punishment described above, if the defendant has a conviction of prostitution, he or she faces fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions. Closely associated crimes to prostitution include: abduction of a minor for prostitution (Pen. Code, § 267); seduction for prostitution (Pen. Code, § 266); keeping a house of prostitution (Pen. Code, § 315); leasing a house for prostitution (Pen. Code, § 318); sending a minor to a house of prostitution (Pen. Code, § 273e); taking a person against that person's will for prostitution (Pen. Code 266a); compelling a person to live in an illicit relationship (Pen. Code, § 266b); placing or leaving one's wife in a house of prostitution (Pen. Code, §266g); loitering for prostitution (Pen. Code, § 653.22, subd. (a)); pimping (Pen. Code, § 266h); or, pandering SB 1129 Page 7 (Pen. Code, § 266i). Most of these crimes are punished much more severely than the underlying prostitution offense, particularly the crimes of pimping, pandering, and procurement. 3)Current Law Limits Judicial Discretion to Impose Appropriate Sentences Based on the Facts and Circumstances of a Particular Case: Specifically, current law mandates that upon a conviction of subsequent acts of prostitution, an offender must spend 45 days in county jail for a second offense, and 90 days in county jail for a third offense. Additionally, as applied to both mandatory minimum sentences, a person convicted may have no part of which suspended or reduced by the court regardless of whether or not the court grants probation. From a policy standpoint, there are no mandatory minimum jail sentences for a variety of offenses that are far more serious than misdemeanor prostitution. For instance, there is no mandatory jail sentence for first time domestic violence offenses, or a wide range of violent felony offenses. This bill takes the discretion from a judge to craft an appropriate remedy in a misdemeanor case. Judges are in the best position to make decisions based on the particular facts and circumstances of a case. Imposing mandatory jail time on a person convicted of prostitution can result in the loss of employment and create problems for the offender that may lead to further criminal acts. Courts have found success in fashioning other remedies that have kept offenders employed, outside of county jails at the public expense, and freed up jail space for more dangerous offenders. a) San Francisco District Attorney's Office First Offender Prostitution Program (FOPP): FOPP is a court diversion program aimed at reducing the volume and impact of sex buying by targeting those who purchase sex. The program SB 1129 Page 8 was first started in San Francisco in 1995. The program is based on the belief that education as opposed to punishment was an effective strategy to address the problems created by the sex industry. The program is focused on educating the purchasers of sex, sometimes referred to as "john's." Purchasers of sex that are dealing with criminal charges for that behavior are predominantly men. The curriculum of the first offender is designed to help men understand the negative effects of being raised in a culture that promotes a system of male superiority and entitlement toward women. The program has incorporated evidence-based practices into the FOPP programming. It includes: Social Learning Theory, Cognitive Behavioral Interventions, Brief Interventions, Harm Reduction, and Peer Reeducation. As part of the FOPP, the legal consequences for subsequent arrests for solicitation of prostitution are emphasized. Participants in the FOPP, are educated about the impacts of prostitution on the participants in the sex industry, the impact of sexual exploitation, the health risks of engaging in prostitution, and the impact of prostitution on the neighborhoods where it occurs. b) Success of Education Programs for Buyers of Sex: As of 2012, approximately 50 cities and counties in the U.S. including Santa Clara, San Diego, Los Angeles, and Fresno have similar programs. (An Overview of John Schools in the United States, (2012), pp. 3-5.) A 2008 study commissioned by the Department of Justice and conducted by Abt Associates found that the First Offender Prostitution Program (FOPP) was successful in substantially reducing recidivism among men arrested for soliciting prostitutes. According to the report, data collected from 10 SB 1129 Page 9 years prior to implementation and 10 years after implementation (1985 through 2005) showed a sharp drop in re-offense rates (recidivism) in 1995, the first year of implementation. This low level of recidivism was sustained throughout the 10 years studied between 1995 and 2005. The study also found that data from San Diego showed that recidivism rates were cut in half after their education program was implemented. In summary, "FOPP significantly reduces recidivism" and is highly transferable, having been successfully replicated and adapted in other cities in the U.S. (Final Report on the Evaluation of the First Offender Prostitution Program (2008), Abt Associate, pp. v-vi and x.) c) Courts General Power to Impose Conditions of Probation: Courts have broad general discretion to fashion and impose additional probation conditions that are particularized to the defendant. (People v. Smith (2007) 152, Cal.App.4th 1245, 1249.) Courts may impose any "reasonable conditions" necessary to secure justice, make amends to society and individuals injured by the defendant's unlawful conduct, and assist the "reformation and rehabilitation of the probationer." (Pen. Code, § 1203.1.) A valid condition must be reasonably related to the offense and aimed at deterring such misconduct in the future. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) 4)Jail Overcrowding: According to a recent report by the Public Policy Institute of California titled Capacity Challenges in California's Jails, California's county jails are facing increasing adult daily populations (ADP). Many counties are facing capacity constraints on their population. Prior to realignment, 17 counties were operating under court orders limiting the number of inmates in their jails. In all, 13 counties including some of the biggest (Los Angeles, Orange, San Diego, and Sacramento) had average daily populations that were larger than the number of beds their jails were rated for. SB 1129 Page 10 5)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 SB 1129 Page 11 occur within 1,000 feet of residences. Committee staff found no cases applying or interpreting the license suspension provisions. 6)Mandatory Jail Terms as Conditions of Probation Encourage Defendants to Refuse Probation: 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. 7)Argument in Support: According to the American Civil Liberties Union, "under current California law, a person who solicits, agrees to engage in, or engages in prostitution is guilty of a misdemeanor disorderly conduct offense. If that person is convicted of a second prostitution offense, imprisonment in the county jail for no less than 45 days is required. Third and subsequent prostitution offenses require SB 1129 Page 12 incarceration for no less than 90 days. A court is also authorized to suspend the driving privileges for up to 30 days of a person convicted of one of the above-described disorderly conduct offenses if the offense was committed within 1,000 feet of a private residence and with the use of a private vehicle. By removing these delineated additional sanctions for prostitution offenses, SB 1129 aligns these offenses with the rest of the California Penal Code, which imposes mandatory minimums on very few misdemeanor offenses. Mandatory minimum sentencing laws, which grew out of the national tough-on-crime stance from the 1980's, contributed to the problems California faces today with significant prison and jail overcrowding. These mandatory sentencing policies no longer reflect California's current approach to realigning the criminal justice system by adopting smarter and more humane sentencing laws. By removing these sentencing mandates for prostitution offenses, courts can employ evidence-based practices that reduce recidivism and further offender rehabilitation. This legislation also recognizes that prostitution is a unique criminal offense where the offender can be both a perpetrator and a victim. Many individuals who engage in prostitution are trafficked and forced, induced, or coerced into commercial sex, and others are runaways who find themselves on the streets with no other means to survive. Imposing mandatory incarceration on these victims fails to advance their rehabilitation or provide them with the services and support they need to escape coercive and abusive situations." 8)Argument in Opposition: According to the California District Attorneys Association, "this bill would eliminate mandatory jail time for individuals convicted of prostitution (buying or selling) more than once. It would also eliminate the authority of a court to suspend a person's driving privileges SB 1129 Page 13 if the offense was committed in a vehicle in close proximity to a private residence. "At a time when our communities continue to struggle with the scourge of human trafficking, we cannot support eliminating tools of deterrence frequently deployed against purchasers of commercial sex. We believe these additional sanctions, which apply only to individuals convicted on multiple occasions, serve an important purpose in our efforts to crack down on the illegal sex trade in California." 9)Related Legislation: AB 1708 (Gonzalez), imposes mandatory minimum sentences of 72 hours upon first offense prostitution offenses. AB 1708 is awaiting a hearing in the Senate Public Safety Committee. 10)Prior Legislation: SB 244 (Liu) of the 2013-2014 Legislative Session, would have created a 90 day mandatory jail term minimum for solicitation of a minor for prostitution related offenses. SB 244 failed passage in the Assembly Public Safety Committee. REGISTERED SUPPORT / OPPOSITION: Support American Civil Liberties Union California Attorneys for Criminal Justice SB 1129 Page 14 California Public Defenders Association Legal Services for Prisoners with Children Opposition California District Attorneys Association Erotic Service Providers Union Analysis Prepared by:Gabriel Caswell / PUB. S. / (916) 319-3744