BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
4
9
AB 499 (Swanson) 9
As Amended May 21, 2008
Hearing date: June 10, 2008
Welfare and Institutions Code
MT/AA:mc
SEXUALLY EXPLOITED MINORS PILOT PROJECT - ALAMEDA COUNTY
HISTORY
Source: Alameda County District Attorney
Prior Legislation: None
Support: Alameda County Board of Supervisors; American College
of Obstetricians and Gynecologists District IX (CA);
California Commission on the Status of Women;
California National Organization for Women (NOW); City
of Oakland Department of Human Services; Mayor of the
City of Oakland; Planned Parenthood Affiliates of
California; Planned Parenthood Golden Gate; Planned
Parenthood of San Diego and Riverside Counties;
Taxpayers for Improving Public Safety; Crime Victims
United of California; two individuals
Opposition:None known
Assembly Floor Vote: Ayes 72 - Noes 0
KEY ISSUE
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SHOULD A DISCRETIONARY PILOT PROJECT BE EXPRESSLY, STATUTORILY
AUTHORIZED IN ALAMEDA COUNTY to encourage the development of a
comprehensive, multidisciplinary model reflecting the best practices
for the response of law enforcement and the criminal and juvenile
justice systems to identify, assess and address the needs of
commercially sexually exploited children who have been arrested or
detained by local law enforcement, AS SPECIFIED?
PURPOSE
The purpose of this bill is to statutorily authorize a
discretionary pilot project in Alameda County to encourage the
development of a comprehensive, multidisciplinary model
reflecting the best practices for the response of law
enforcement and the criminal and juvenile justice systems to
identify, assess and address the needs of commercially sexually
exploited children who have been arrested or detained by local
law enforcement, as specified.
Under current law , the purpose of juvenile court law "is to
provide for the protection and safety of the public and each
minor under the jurisdiction of the juvenile court and to
preserve and strengthen the minor's family ties whenever
possible, removing the minor from the custody of his or her
parents only when necessary for his or her welfare or for the
safety and protection of the public." (Welfare and Institutions
Code ("WIC") 202.)
Minors under the jurisdiction of the juvenile
court as a consequence of delinquent conduct
shall, in conformity with the interests of public
safety and protection, receive care, treatment,
and guidance that is consistent with their best
interest, that holds them accountable for their
behavior, and that is appropriate for their
circumstances. This guidance may include
punishment that is consistent with the
rehabilitative objectives of this chapter. (Id.)
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Current law expressly defines the scope and nature of
"punishment" in the juvenile court:
As used in this chapter, "punishment" means the
imposition of sanctions. It shall not include a
court order to place a child in foster care as
defined by Section 727.3. Permissible sanctions may
include the following:
(1) Payment of a fine by the minor.
(2) Rendering of compulsory service without
compensation performed for the benefit of the
community by the minor.
(3) Limitations on the minor's liberty imposed as a
condition of probation or parole.
(4) Commitment of the minor to a local detention or
treatment facility, such as a juvenile hall, camp,
or ranch.
(5) Commitment of the minor to the Department of the
Youth Authority.
"Punishment," for the purposes of this chapter, does
not include retribution.
(Id.)
Current law provides that when a minor is adjudged a delinquent
ward of the court, "the court may make any and all reasonable
orders for the care, supervision, custody, conduct, maintenance,
and support of the minor, . . . ." (WIC 727.) The juvenile
court has broad discretion in imposing probation conditions.
(In re Josue S. (1999) 72 Cal.App.4th 168.)
This bill would establish the "Sexually Exploited Minors Pilot
Project," with the following features:
Model to Address Needs and Treatment of Commercially Sexually
Exploited Minors
This bill would expressly authorize the County of Alameda,
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AB 499 (Swanson)
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contingent upon local funding, to "establish a pilot project
consistent with this chapter to develop a comprehensive,
multidisciplinary model to address the needs and effective
treatment of commercially sexually exploited minors who have
been arrested or detained by local law enforcement for a
violation of subdivision (a) or (b) of Section 647, subdivision
(a) of Section 653.22, or subdivision (a) of Section 653.23 of
the Penal Code."<1>
Development of Protocols for Identifying and Assessing Minors
This bill would expressly state that the "District Attorney of
the County of Alameda, in collaboration with county and
community-based agencies, may develop, as a component of the
pilot project described in this chapter, protocols for
identifying and assessing minors, upon arrest or detention by
law enforcement, who may be victims of commercial sexual
exploitation."
Development of a Diversion Program Reflecting Best Practices to
Address Needs of Arrested or Detained Minors who Have been
Commercially Sexually Exploited
This bill would expressly state that the "District Attorney of
the County of Alameda, in collaboration with county and
community-based agencies that serve commercially sexually
exploited minors, may develop, as a component of the pilot
project described in this chapter, a diversion program
reflecting the best practices to address the needs and
requirements of arrested or detained minors who have been
determined to be victims of commercial sexual exploitation."
Multidisciplinary Teams to Develop and Provide Training
Curriculum
This bill would expressly state that the "District Attorney of
the County of Alameda, in collaboration with county and
community-based agencies, may form, as a component of the pilot
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<1> These sections generally pertain to prostitution. See
Comment (2), infra.
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project described in this chapter, a multidisciplinary team
including, but not limited to, city police departments, the
county sheriff's department, the public defender's office, the
probation department, child protection services, and
community-based organizations that work with or advocate for
commercially sexually exploited minors, to do both of the
following:
(1) Develop a training curriculum reflecting the best practices
for identifying and assessing minors who may be victims of
commercial sexual exploitation.
(2) Offer and provide this training curriculum through
multidisciplinary teams to law enforcement, child protective
services, and others who are required to respond to arrested or
detained minors who may be victims of commercial sexual
exploitation.
Definition of "Commercially Sexually Exploited Minor"
This bill would provide that, for purposes of the chapter it
would create, "commercially sexually exploited minor" means a
person under 18 years of age who has been detained for a
violation of the law or placed in civil protective custody on a
safety hold based only on a violation of subdivision (a) or (b)
of Section 647, subdivision (a) of Section 653.22, or
subdivision (a) of Section 653.23 of the Penal Code, all of
which relate to prostitution and pimping crimes.
Sunset
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This bill would provide a sunset of January 1, 2012.
Legislative Intent
This bill would state in uncodified language that it is "the
intent of the Legislature to encourage the development of a
comprehensive, multidisciplinary model reflecting the best
practices for the response of law enforcement and the criminal
and juvenile justice systems to identify and assess commercially
sexually exploited children who have been arrested or detained
by local law enforcement."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<2> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison populations
have increased significantly. County jail
populations have increased by about 66 percent over
that period, an amount that has been limited by
court-ordered population caps. The prison population
has grown even more dramatically during that period,
tripling since the mid-1980s.<3>
----------------------
<2> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
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services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not aggravate the prison overcrowding crisis
outlined above.
COMMENTS
1. Stated Need for This Bill
The author states:
AB 499 seeks to respond to the specialized needs of
sexually exploited children that focus on victimization
rather than criminalization. As it stands, minors who
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are detained for prostitution go through the Juvenile
Justice System with little opportunity for healing and
recovery. There has been a rapid increase in CA of the
number of children being sexually exploited, especially
in the form of child prostitution and pornography.
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2. What This Bill Would Do
As recently amended, this bill would enact a statutory provision
stating that Alameda County may establish, contingent upon local
funding, a pilot program relating to commercially sexually
exploited children who have been arrested or detained by local
law enforcement. The bill contemplates the following specific
(although discretionary) aspects of the pilot:
Development of a comprehensive, multidisciplinary model
to address the needs and effective treatment of
commercially sexually exploited minors who have been
arrested or detained by local law enforcement for
solicitation,<5> loitering with the intent to commit
prostitution,<6> or pimping.<7>
Development of protocols for identifying and assessing
minors, upon arrest or detention by law enforcement, who
may be victims of commercial sexual exploitation.
Development of a diversion program reflecting the best
practices to address the needs and requirements of arrested
or detained minors who have been determined to be victims
of commercial sexual exploitation.
Formation of a multidisciplinary team to (1) develop a
training curriculum reflecting the best practices for
identifying and assessing minors who may be victims of
commercial sexual exploitation, and (2) offer and provide
this training curriculum through multidisciplinary teams to
law enforcement, child protective services, and others who
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<5> Specifically, a violation of subdivision (a) or (b) of
Section 647.
<6> Specifically, a violation of subdivision (a) of Section
653.22.
<7> Specifically, a violation of subdivision (a) of Section
653.23 of the Penal Code.
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are required to respond to arrested or detained minors who
may be victims of commercial sexual exploitation.
"Commercially sexually exploited minor" under this bill would
mean a person under 18 years of age who has been detained for a
violation of the law or placed in civil protective custody on a
safety hold based only on a violation of prostitution or pimping
crimes, as specified.
This bill would provide a sunset of January 1, 2012.
3. Sexually Exploited Minors and the Criminal Justice System
Recent news articles have highlighted the problem of child and
teen prostitutes. For example, the Contra Costa Times recently
reported, "last year, of the 443 females arrested for
prostitution in Oakland, 29 were juvenile cases. ? Meanwhile,
police have only just started to quantify the problem and have
been working to nail down firm numbers. ? Technology, the
Internet, and cell phones have all changed the game. Pimps now
use technology to sell girls as young as 11 or 12 on the
street."<8> Similarly, an Oakland Tribune article from earlier
this year described efforts to address child prostitutes as
victims rather than criminal offenders:
The majority of youngsters involved in the sex trade
have been abused or neglected. Almost all the
youngsters on the streets have run away from a home
situation they find untenable.
"A lot of these young girls are foster care youth and
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<8> Dunlap, Kamika, Cops Treating Child Prostitutes as
Victims, Contra Costa Times, April 23, 2008.
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kids not connected to any family system," said Brian
Bob, outreach coordinator for Covenant House, a
nonprofit homeless shelter for youth that drives a van
around Oakland five nights a week to provide food and,
if they'll accept it, shelter to homeless youngsters.
The vast majority of homeless girls Covenant House
finds are prostitutes, he said.
. . .
Alameda County Deputy District Attorney Sharmin
Eshraghi Bock, who prosecutes human exploitation and
trafficking cases, said many young girls who fall into
prostitution have never known a loving family, so they
mistake a pimp's affection and promises of material
things for love.
. . .
Sexually Abused and Commercially Exploited Youth, an
Oakland- based counseling program, last year surveyed 100
children ages 11 to 17 who had been peddled on the
streets and referred for counseling.
They found that 75 percent of the children had been
raped at some time in their lives, 48 percent had been
physically or sexually abused, and 70 percent had been
assaulted while working the streets.
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Most respondents were runaways: Eighty-eight percent
said they had run away from their family home or a
foster care home. . . .
Nola Brantley, coordinator of the SACEY counseling program,
said the child prostitution epidemic in Oakland can be
partially blamed on an overtaxed police system.
"There are cases of severe child abuse in Oakland that
will go uninvestigated and not prosecuted because of
lack of manpower," Brantley said. "Some of these same
children who were abused and nobody intervened will go
on to become sexually exploited minors."<9>
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<9> Barbara Grady, Many Child Prostitutes Seeking Shelter,
Oakland Tribune, April 22, 2008.