BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1129|
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UNFINISHED BUSINESS
Bill No: SB 1129
Author: Monning (D)
Amended: 8/4/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/19/16
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
SENATE FLOOR: 23-14, 5/2/16
AYES: Allen, Beall, Block, De León, Glazer, Hall, Hancock,
Hernandez, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu,
McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Wieckowski,
Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines,
Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Stone, Vidak
NO VOTE RECORDED: Galgiani, Hertzberg, Runner
ASSEMBLY FLOOR: 41-29, 8/18/16 - See last page for vote
SUBJECT: Prostitution: sanctions
SOURCE: California Public Defenders Association
DIGEST: This bill repeals statutory provisions imposing
mandatory minimum prostitution jail terms, including for those
who accept probation, for repeat offenders.
Assembly Amendments authorize a court to restrict the driver's
license of a person who is convicted of repeated prostitution
offenses.
SB 1129
Page 2
ANALYSIS:
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
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.)
This bill repeals the mandatory minimum terms for repeated
prostitution offenses, leaving discretion with the court to
impose an appropriate sentence.
SB 1129
Page 3
Background
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.
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 ?
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Page 4
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
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
Page 5
Under existing law, 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.
A 2008 John Jay College study 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.
https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf, pp
48-49,. 32-102. 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.
http://www.newyorker.com/magazine/2012/12/10/netherland
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,
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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.
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,
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.
SB 1129
Page 7
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified8/18/16)
California Public Defenders Association (source)
American Civil Liberties Union
Legal Services for Prisoners with Children
OPPOSITION: (Verified8/18/16)
None received
ASSEMBLY FLOOR: 41-29, 8/18/16
AYES: Achadjian, Alejo, Atkins, Bloom, Bonilla, Bonta, Brown,
SB 1129
Page 8
Burke, Calderon, Chau, Chu, Cooley, Dababneh, Dodd, Eggman,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Holden, Jones-Sawyer, Levine, Lopez, Low,
McCarty, Medina, Mullin, O'Donnell, Quirk, Ridley-Thomas,
Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood,
Rendon
NOES: Travis Allen, Arambula, Baker, Bigelow, Brough, Chang,
Chávez, Dahle, Daly, Beth Gaines, Gallagher, Gray, Grove,
Hadley, Harper, Irwin, Jones, Kim, Lackey, Linder,
Maienschein, Mayes, Melendez, Patterson, Salas, Steinorth,
Wagner, Waldron, Wilk
NO VOTE RECORDED: Campos, Chiu, Cooper, Frazier, Roger
Hernández, Mathis, Nazarian, Obernolte, Olsen, Williams
Prepared by:Jerome McGuire / PUB. S. /
8/19/16 19:21:39
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