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
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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
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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
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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.
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"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.
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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
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(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
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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
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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.
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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
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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
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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
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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
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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