BILL ANALYSIS
AB 988
Page 1
Date of Hearing: April 28, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 988 (Brownley) - As Amended: April 22, 2009
SUMMARY : Requires the Commission on Peace Officers Standards
and Training (POST), upon the next regularly scheduled review of
a training module relating to human trafficking, to create and
make available training content on the "U Visa", as specified.
Specifically, this bill :
1) States that the Commission on POST shall, upon the next
regularly scheduled review of a training module relating to
human trafficking, create and make available training content
on the U Visa as authorized by the Victims of Trafficking and
Violence Act.
2)Provides that the training shall include how to inform victims
about the U Visa and how to apply for a U Visa. The training
regarding the U Visa shall include, but not be limited to, an
explanation that it is available to non-citizen crime victims
who have suffered substantial physical or mental abuse from
criminal activity, have information regarding criminal
activity, and assist government officials in the investigation
or prosecution of that criminal activity if the criminal
activity violated United States law or occurred in the United
States, including Indian country and military installations,
or in the territories and possessions of the United States.
3)States that the training content shall be designed for, and
made available to, peace officers employed by law enforcement
agencies that participate in, and comply with, training
standards set forth by the commission.
EXISTING LAW :
1)Provides for undocumented immigrants to receive U Visas if
they have suffered substantial physical or mental abuse
resulting from a wide range of criminal activity, and have
been helpful with the investigation and prosecution of the
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crime. (22 USC 7101.)
2)Establishes the California Trafficking Victims Protection Act,
which provides civil and criminal penalties for trafficking in
human beings, allows for forfeiture of assets derived from
human trafficking, makes legislative findings and requires law
enforcement agencies to provide Law Enforcement Agency
Endorsement (LEAE) to trafficking victims, creates California
Alliance to Combat Trafficking and Slavery (California ACTS)
Task Force, and provides restitution to victims. (Civil Code
Section 52.5; Evidence Code Sections 1038 to 1038.2;
Government Code Section 13956; Penal Code Sections 186.2,
236.1 to 236.2, 273.7, 1202.4, 13990 and 14023.)
3)Provides that human trafficking, involving adults, is
punishable by imprisonment up to five years and up to eight
years for human trafficking of a minor. (Penal Code Section
236.1.)
4)Allows asset forfeiture for offenses categorized as "criminal
profiteering." Includes "human trafficking" in the list of
crimes categorized as "criminal profiteering." Requires a
conviction of the underlying offense before asset forfeiture
under "criminal profiteering." Requires, among other things,
filing of a petition of forfeiture with the superior court,
service of process of a notice and a forfeiture hearing.
Provides that the funds obtained through asset forfeiture be
distributed to legally recognizable interests, the local
governmental entity, for reimbursement, and the balance to the
general fund of the prosecuting state or local governmental
entity. (Penal Code Sections 186 to 186.8.)
5)Establishes guidelines to ensure the proper utilization of the
laws permitting the drug-related seizure and forfeiture of
property, including the following:
a) Provides that law enforcement is the principal objective
of forfeiture. Potential revenue must not be allowed to
jeopardize the effective investigation and prosecution of
criminal offenses, officer safety, the integrity of ongoing
investigations, or the due process rights of citizens; and,
b) Prohibits a prosecutor's or sworn law enforcement
officer's employment or salary from being made to depend
upon the level of seizures or forfeitures he or she
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achieves.
(Health and Safety Code Section 11469.)
6)Allows, in drug-related asset forfeiture actions, property
subject to forfeiture to be seized without process if any of
the following situations exist:
a) The seizure is incident to an arrest or a search under a
search warrant;
b) The property subject to seizure has been the subject of
a prior judgment in favor of the state in a criminal
injunction or forfeiture proceeding based upon this
division;
c) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety; or,
d) There is probable cause to believe that the property was
used or is intended to be used in a drug-related crime.
(Health and Safety Code Section 11471.)
7)Prohibits drug-related seizure of real property subject to
forfeiture, absent exigent circumstances, without notice to
the interested parties and a hearing to determine that seizure
is necessary to preserve the property pending the outcome of
the proceedings. Specifies the manner in which this hearing
is to be conducted. [Health and Safety Code Section 1147(e).]
8)Provides, in drug-related asset seizure and forfeiture,
disbursement priority to a person possessing a bona fide
ownership interest in the seized property. Provides that the
law enforcement agency responsible for the investigation of
the offense is reimbursed for all expenditures made or
incurred with the sale of the seized property. Provides that
the balance of the assets is to be distributed as follows:
a) 65% to the state, local, or state and local law
enforcement entities that participated in the seizure
distributed to reflect the proportionate contribution of
each agency. Requires 15% of this portion to be deposited
in a special fund maintained by the county, city of any
agency making the seizure of seeking an order for
forfeiture. Requires this fund to be used for the sole
purpose of funding programs designed to combat drug abuse
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and divert gang activity;
b) 10% is given to the prosecutorial agency that processes
the forfeiture action;
c) 24% is deposited into the state's General Fund; and,
d) 1% is given to a private, non-profit organization
composed of local prosecutors to provide a statewide
program of education and training. (Health and Safety Code
Section 11489.)
9)Provides concurrent with, or subsequent to, the filing of a
forfeiture petition, the prosecuting agency may move the
superior court for the following pendente lite orders to
preserve the status quo of the property alleged in the
petition of forfeiture: (Penal Code Section 186.6.)
a) An injunction to restrain all interested parties and
enjoin them from transferring, encumbering, hypothecating
or otherwise disposing of that property.
b) Appointment of a receiver to take possession of, care
for, manage, and operate the assets and properties so that
such property may be maintained and preserved.
c) No preliminary injunction may be granted or receiver
appointed without notice to the interested parties and a
hearing to determine that such an order is necessary to
preserve the property, pending the outcome of the criminal
proceedings, and that there is probable cause to believe
that the property alleged in the forfeiture proceedings are
proceeds or property interests forfeitable. However, a
temporary restraining order may issue pending that hearing.
d) Notwithstanding any other provision of law, the court in
granting these motions may order a surety bond or
undertaking to preserve the property interests of the
interested parties.
e) The court shall, in making its orders, seek to protect
the interests of those who may be involved in the same
enterprise as the defendant, but who were not involved in
the commission of the criminal profiteering activity.
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10)Defines the term "severe forms of trafficking in persons" as,
among other things, sex trafficking in which a commercial sex
act is induced by force, fraud, or coercion, or in which the
person induced to perform such act has not attained 18 years
of age. [22 USC Section 7102(8)(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)U Visas : The U Visa was created by the Victims of Trafficking
and Violence Prevention Act, enacted in October 2000 and is
available to non-citizens who have suffered substantial
physical or mental abuse resulting from a wide range of
criminal activity, and have been helpful, are being helpful,
or are likely to be helpful with the investigation or
prosecution of the crime. The U Visa provides eligible
immigrants with authorized stay in the United States and
employment authorization.
2)Human Trafficking : Human trafficking involves the
recruitment, transportation or sale of people for forced
labor. Through violence, threats and coercion, victims are
forced to work in, among other things, the sex trade, domestic
labor, factories, hotels and agriculture. According to the
January 2005 United States Department of State's Human
Smuggling and Trafficking Center report, "Fact Sheet:
Distinctions Between Human Smuggling and Human Trafficking",
there is an estimated 600,000 to 800,000 men, women and
children trafficked across international borders each year.
Of these, approximately 80% are women and girls and up to 50%
are minors. A recent report by the Human Rights Center at the
University of California, Berkeley cited 57 cases of forced
labor in California between 1998 and 2003, with over 500
victims. The report, "Freedom Denied", notes most of the
victims in California were from Thailand, Mexico, and Russia
and had been forced to work as prostitutes, domestic slaves,
farm laborers or sweatshop employees. [University of
California, Berkeley Human Rights Center, "Freedom Denied:
Forced Labor in California" (February, 2005)]. According to
the author:
"While the clandestine nature of human trafficking makes it
enormously difficult to accurately track how many people are
affected, the United States government estimates that about
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17,000 to 20,000 women, men and children are trafficked into
the United States each year, meaning there may be as many as
100,000 to 200,000 people in the United States working as
modern slaves in homes, sweatshops, brothels, agricultural
fields, construction projects and restaurants.
3)Trafficking Victims Protection Act of 2000 (22 USC Sections
7101 et seq.) . In October 2000, the Trafficking Victims
Protection Act of 2000 (TVPA) was enacted. The law is
comprehensive, addressing the various ways of combating
trafficking, including prevention, protection and prosecution.
The prevention measures include the authorization of
educational and public awareness programs. Protection and
assistance for victims of trafficking include making housing,
educational, health-care, job training and other
federally-funded social service programs available to assist
victims in rebuilding their lives. Finally, the TVPA provides
law enforcement tools to strengthen the prosecution and
punishment of traffickers, making human trafficking a federal
crime.
This bill conforms to federal law with respect to human
trafficking involving children under 18 years old. In such
instances, prosecutors need not prove force, fraud or
coercion. When the victim is under 18 years old, prosecutors
need only prove that the child was induced to perform a sex
act in relation to the trafficking. [22 USC Section
7102(8)(a).] According to the California District Attorneys
Association:
"Child victims are often too fragile to testify or falsely
believe that they consented to participating in their own
sexual abuse. This bill improves prosecutors' ability to
bring cases involving child victims, removing the elements of
force, fraud and coercion for child victims. Like other
statutes, such as statutory rape or the federal law against
trafficking, the law is premised on the idea that children
cannot consent to their own abuse and it is not required to
show that they were defrauded or coerced into participating in
commercial sex acts."
4)Argument in Support : The Coalition to Abolish Slavery and
Trafficking (CAST) states, "[w]e are proud to be the sponsor
of AB 988. AB 988 provides a certification process for
required training of human trafficking caseworkers. The
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training is needed for the caseworker and client to be able to
invoke a confidentiality privilege for communications. The law
already provides for this privilege when a caseworker
completes certified training, but fails to designate who will
certify the training. This issue was recognized in the Final
Report of the California Alliance to Combat Trafficking and
Slavery Task Force in October 2007. The Task Force was created
by Assembly Bill 22 (Lieber, 2005) and Senate Bill 180 (Kuehl,
2005) to analyze California's response to human trafficking.
The final product was the report, also known as the "Safe
State" report.
"This privilege also exists for sexual assault caseworkers.
The law provides that the Department of Finance will designate
an agency to certify the training as acceptable. Currently,
the California Emergency Management Agency is the designated
agency for certifying sexual assault caseworker training. As
CalEMA is already well versed in these issues, which have
considerable overlap with human trafficking issues, AB 988
mirrors those provisions to have CalEMA certify the human
trafficking training.
"Additionally, current law requires the caseworker to work
with an organization providing comprehensive victim services
in order for the caseworker to be afforded the privilege. Due
to the infancy of many of the human trafficking programs, and
limited funding, few if any programs can provide all of the
services. The bill will recognize this fact by allowing the
privilege for caseworkers with organizations that can not
currently provide the full range of services."
5)Related Legislation: AB 17 (Swanson) increases fines on
pimping, pandering, and procurement of a minor to fund human
trafficking programs for minors. Additionally adds
procurement of a minor to the criminal profiteering section.
AB 17 is scheduled to be heard in this Committee today.
6)Prior Legislation : AB 22 (Lieber), Chapter 240, Statutes of
2005, established the California Trafficking Victims
Protection Act. This Act established civil and criminal
penalties for human trafficking and allowed for forfeiture of
assets derived from human trafficking. In addition, this Act
required law enforcement agencies to provide Law Enforcement
Agency Endorsement to trafficking victims, providing
trafficking victims with protection from deportation and
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created the human trafficking task force.
REGISTERED SUPPORT / OPPOSITION :
Support
Coalition to Abolish Slavery and Trafficking
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744