BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
9
8
8
AB 988 (Brownley)
As Amended May 18, 2009
Hearing date: July 2, 2009
Penal Code
SM:br
HUMAN TRAFFICKING
HISTORY
Source: Author
Prior Legislation: AB 2810 (Brownley) - Ch. 358, Stats. 2008
AB 1278 (Lieber) Ch.r258, Stats. 2008
AB 22(Lieber) - Ch. 240, Stats. 2005
SB 180 (Kuehl) - Ch. 239, Stats. 2005
SB 741 (Morrow) - 2005; failed in Senate Public
Safety
Support: Legal Services for Prisoners with Children; Junior
League of Los Angeles, Inc.; California Commission on
the Status of Women; Crime Victims United; California
Catholic Conference
Opposition:None
Assembly Floor Vote: Ayes 66 - Noes 10
KEY ISSUES
SHOULD THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING
(POST) BE REQUIRED, UPON THE NEXT REGULARLY SCHEDULED REVIEW OF
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A TRAINING MODULE RELATING TO HUMAN TRAFFICKING, CREATE AND MAKE
AVAILABLE TRAINING CONTENT ON THE U VISA AS AUTHORIZED BY THE
FEDERAL VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT OF
2000?
(CONTINUED)
SHOULD IT BE REQUIRED THAT THE TRAINING INCLUDE HOW TO INFORM
VICTIMS ABOUT THE U VISA AND HOW TO APPLY FOR A U VISA, AS
SPECIFIED?
SHOULD IT BE REQUIRED THAT THE TRAINING CONTENT 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?
PURPOSE
The purpose of this bill is to (1) require that the Commission
on Peace Officer Standards and Training (POST), 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 federal Victims of Trafficking
and Violence Protection Act of 2000; (2) require that the
training include how to inform victims about the U Visa and how
to apply for a U Visa including, but not be limited to, an
explanation that it is available to noncitizen 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; and (3) require that the
training content 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.
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Existing law provides that any person who deprives or violates
the personal liberty of another with the intent to effect or
maintain a felony violation of specified sex crimes, extortion,
or to obtain forced labor or services is guilty of human
trafficking. If committed against an adult, this offense is
punishable by 3, 4 or 5 years in state prison. If committed
against a minor, this offense is punishable by 4, 6 or 8 years
in state prison. (Penal Code 236.1.)
Existing law 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 crime.
(22 USC 7101.)
Existing law requires POST to adopt rules establishing minimum
standards relating to physical, mental, and moral fitness that
governs the recruitment of specified groups of peace officers.
POST is also required to adopt rules establishing minimum
standards for training specified peace officers. (Penal Code
13510; 13510.5.)
Existing law requires that every law enforcement officer in this
state shall participate in expanded training as prescribed and
certified by the Commission on Peace Officers Standards and
Training. (Penal Code 13519.4 (g).)
Existing law requires that the POST Commission shall implement
by January 1, 2007, a course or courses of instruction for the
training of law enforcement officers in California in the
handling of human trafficking complaints and also shall develop
guidelines for law enforcement response to human trafficking.
The course or courses of instruction and the guidelines shall
stress the dynamics and manifestations of human trafficking,
identifying and communicating with victims, providing
documentation that satisfy the law enforcement agency
endorsement (LEA) required by federal law, collaboration with
federal law enforcement officials, therapeutically appropriate
investigative techniques, the availability of civil and
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immigration remedies and community resources, and protection of
the victim. Where appropriate, the training presenters shall
include human trafficking experts with experience in the
delivery of direct services to victims of human trafficking.
Completion of the course may be satisfied by telecommunication,
video training tape, or other instruction. (Penal Code
13519.14 (a).)
Existing law requires that the course of instruction, the
learning and performance objectives, the standards for the
training, and the guidelines shall be developed by the
commission in consultation with appropriate groups and
individuals having an interest and expertise in the field of
human trafficking. The commission, in consultation with these
groups and individuals, shall review existing training programs
to determine in what ways human trafficking training may be
included as a part of ongoing programs. (Penal Code 13519.14
(c) and (d).)
Existing law states that participation in the course or courses
specified in this section by peace officers or the agencies
employing them is voluntary. (Penal Code 13519.14 (e).)
Existing law provides that any employee of a law enforcement
agency who personally receives a report from any person,
alleging that the person making the report has been the victim
of a sex offense, or was forced to commit an act of prostitution
because he or she is the victim of human trafficking, as defined
in Section 236.1, shall inform that person that his or her name
will become a matter of public record unless he or she requests
that it not become a matter of public record, pursuant to
Section 6254 of the Government Code. (Penal Code 293.) Any
written report of an alleged sex offense shall indicate that the
alleged victim has been properly informed pursuant to
subdivision (a) and shall memorialize his or her response.
(Penal Code 293 (a) and (b).)
Existing law provides that any person who maliciously publishes,
disseminates, or otherwise discloses the location of any
trafficking shelter or domestic violence shelter or any place
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designated as a trafficking shelter or domestic violence
shelter, without the authorization of that trafficking shelter
or domestic violence shelter, is guilty of a misdemeanor,
punishable by up to six months in county jail, a fine of up to
$1000, or both. (Penal Code 273.7.)
Existing law provides that a victim of human trafficking may
bring a civil lawsuit for actual damages, compensatory damages,
punitive damages, injunctive relief, any combination of those,
or any other appropriate relief. In such a lawsuit the
plaintiff may be awarded up to three times his or her actual
damages or $10,000, whichever is greater. In addition, punitive
damages may also be awarded upon proof of the defendant's
malice, oppression, fraud, or duress in committing the act of
human trafficking. (Civil Code 52.5.)
Existing law provides that a trafficking victim has a privilege
to refuse to disclose, and to prevent another from disclosing, a
confidential communication between the victim and a human
trafficking caseworker, as specified. (Evidence Code 1038 -
1038.2.)
Existing law provides that no law enforcement agency shall
disclose to any person, except the prosecutor, parole officers
of the Department of Corrections and Rehabilitation, hearing
officers of the parole authority, probation officers of county
probation departments, or other persons or public agencies where
authorized or required by law, the address of a person who
alleges to be the victim of a sex offense or who was forced to
commit an act of prostitution because he or she is the victim of
human trafficking, as defined in Section 236.1. (Penal Code
293 (c).)
Existing law provides that no law enforcement agency shall
disclose to any person, except the prosecutor, parole officers
of the Department of Corrections and Rehabilitation, hearing
officers of the parole authority, probation officers of county
probation departments, or other persons or public agencies
where authorized or required by law, the name of a person who
alleges to be the victim of a sex offense or who was forced to
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commit an act of prostitution because he or she is the victim
of human trafficking, as defined in Section 236.1, if that
person has elected to exercise his or her right pursuant to
this section and Section 6254 of the Government Code. (Penal
Code 293 (d).)
Existing law provides that parole officers of the Department of
Corrections and Rehabilitation and hearing officers of the
parole authority, and probation officers of county probation
departments, shall be entitled to receive information pursuant
to subdivisions (c) and (d) only if the person to whom the
information pertains alleges that he or she is the victim of a
sex offense or was forced to commit an act of prostitution
because he or she is the victim of human trafficking, as defined
in Section 236.1, the alleged perpetrator of which is a parolee
who is alleged to have committed the offense while on parole, or
in the case of a county probation officer, the person who is
alleged to have committed the offense is a probationer or is
under investigation by a county probation department. (Penal
Code 293.)
Existing law provides that the name of a victim of human
trafficking may be withheld at the victim's request, or at the
request of the victim's parent or guardian if the victim is a
minor. When a person is the victim of more than one crime,
information disclosing that the person is a victim of a crime
defined in any of the sections of the Penal Code set forth in
this subdivision may be deleted at the request of the victim, or
the victim's parent or guardian if the victim is a minor, in
making the report of the crime, or of any crime or incident
accompanying the crime, available to the public in compliance
with the requirements of this paragraph. (Government Code
6254 (f)(2).)
Existing law states that any provision of a contract that
purports to allow a deduction from a person's wages for the cost
of emigrating and transporting that person to the United Sates
is void as against public policy. (Civil Code 1670.7.)
This bill requires that the POST Commission shall, upon the next
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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 federal Victims of Trafficking
and Violence Protection Act of 2000.
This bill requires 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 noncitizen 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.
This bill requires 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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According to the author:
Due to the underground nature of human trafficking,
law enforcement has a hard time finding traffickers
and bringing them to justice. In response to that
difficulty, Congress created the "U" visas, which are
designed to provide immigration status to
non-citizens that are assisting or are willing to
assist authorities in the investigation of crimes.
AB 988 will require the Commission on Peace Officers
Standards and Trainings (POST) to create and make
available a training module on U Visas. Since the
bill is crafted to state that the POST commission
need not update their training module until the next
regularly scheduled review the bill.
2. Background: The Problem of Human Trafficking
AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005) established the
California Alliance to Combat Trafficking and Slavery Task Force
(hereafter, "Task Force") to examine the issue of human
trafficking in California and make findings and recommendations
to the Governor, the Attorney General and the Legislature. The
Task Force issued its final report in October 2007. The report
described the phenomenon of human trafficking as follows:
Traffickers lure victims into the United States with
deceptive promises of good jobs and better lives, and
then force them to work under brutal and inhuman
conditions, and deprive them of their freedom.
Victims of human trafficking may be involved in
agricultural labor, construction labor, hotel and
motel cleaning services, illegal transporters,
organized theft rings, pornography, prostitution,
restaurant services, domestic services, servile
marriage (mail-order brides) and sweatshops. Once in
this country, many suffer extreme physical and mental
abuse, including rape, sexual exploitation, torture,
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beatings, starvation, death threats and threats to
family members.
(Human Trafficking in California, Final Report of the California
Alliance to Combat Trafficking and Slavery Task Force, October
2007, pg 16.
http://safestate.org/documents/HT_Final_Report_ADA.pdf.)
3. The Federal Trafficking Victims Protection Act of 2000
In October 2000, the federal Trafficking Victims Protection Act
of 2000 (TVPA) was enacted. (22 USC Sections 7101 et seq.) 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.
4. Federal Assistance to Human Trafficking Victims: T-1 Visa and
U Visa
The final Task Force report describes the types of assistance
available to victims of human trafficking, both US citizens and
non-citizens:
The federal Trafficking Victims Protection Act makes
housing, education, health care, job training and
other federally funded social service programs
available to assist victims in rebuilding their
lives. To be eligible the individual must be
certified by the U.S. Department of Health and Human
Services (DHHS) as a victim of human trafficking.
Once certified, the victim becomes eligible for
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benefits to the same extent as refugees, including
refugee cash, medical assistance and social services.
Victims under the age of 18 and those who are U.S.
citizens do not need to be certified in order to
obtain these benefits. Individuals not yet certified
may be able to obtain interim assistance and services
through NGOs.
Non-citizen victims of human trafficking may be
eligible for immigration relief, including:
T visas. The TVPA grants non-citizen victims the
right to remain in the country legally for up to
three years, and then adjust their status to lawful
permanent residents. However, currently, victims
cannot become lawful permanent residents because
regulations have not yet been developed covering this
status adjustment. In order to qualify for a T visa,
applicants must be victims of a severe form of
trafficking, face severe and unusual harm if they
were sent back to their home country, comply with any
reasonable request from law enforcement to assist in
the investigation or prosecution of the trafficker
and meet other eligibility requirements. Children
under 18 years of age are eligible for a T visa
without meeting the requirement to aid in the
criminal investigation. The law provides for the
issuance of up to 5,000 T visas to victims per year.
Continued Presence. In order to assist in the
prosecution of human traffickers, eligible
non-citizen victims who are potential witnesses of
trafficking may receive temporary immigration relief
under the "Continued Presence" provision of federal
law. This designation is granted so that a foreign
victim of human trafficking may be present in the
U.S. during the investigation and prosecution of the
trafficker. A federal law enforcement officer must
initiate a request for Continued Presence.
Trafficked victims may apply for a T visa, however,
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without having Continued Presence requested on their
behalf.
U visas. U visas, also created by the federal TVPA,
allow non-citizen victims who have suffered
substantial physical or mental abuse as a result of
being the victims of certain crimes, including
trafficking, to remain lawfully in the country for a
specified period of time. Victims must be likely to
be helpful with the investigation or prosecution of
the crime. Up to 10,000 U visas may be issued to
victims annually. To obtain a U visa, individuals do
not have to be victims of a "severe form of human
trafficking," as required for the T visa, and,
therefore, more victims may be eligible for a U visa.
However, until September 2007, regulations had not
been developed on the issuance of U visas, so the
U.S. Department of Homeland Security, meanwhile,
provided for "U visa interim relief," which has
allowed potential recipients of a U visa to remain
lawfully in the country pending the issuance of
regulations governing U Visas. Recipients of U visas
are not eligible for federal benefits.
(Note: The letter, "T," used in T visas relates to a
section of the federal code and does not stand for
"trafficking." Similarly, the "U" in U visas refers
to a section of the federal code.)
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(Human Trafficking in California, Final Report of the California
Alliance to Combat Trafficking and Slavery Task Force, October
2007, pgs 48-49.
http://safestate.org/documents/HT_Final_Report_ADA.pdf.)
5. Previous Training Requirements Established for Law Enforcement
SB 180 (Kuehl) (2005) also enacted Penal Code Section 13519.14.
(Chapter 239, Stats. of 2005.) That section required the POST
Commission to implement by January 1, 2007, a course or courses
of instruction for the training of law enforcement officers in
California in the handling of human trafficking complaints and
also shall develop guidelines for law enforcement response to
human trafficking. It specifies that the training and
guidelines shall stress the dynamics and manifestations of human
trafficking, identifying and communicating with victims,
providing documentation that satisfy the law enforcement agency
endorsement required by federal law to obtain the T-1 visa,
collaboration with federal law enforcement officials,
therapeutically appropriate investigative techniques, the
availability of civil and immigration remedies and community
resources, and protection of the victim. Completion of the
course may be satisfied by telecommunication, video training
tape, or other instruction. (Penal Code 13519.14 (a).) It is
also required under current law that the training, and the
guidelines be developed in consultation with appropriate groups
and individuals having an interest and expertise in the field of
human trafficking. (Penal Code 13519.14 (c).) Participation
in this training by peace officers or the agencies employing
them is voluntary. (Penal Code 13519.14 (e).)
As noted above, AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005)
also established a 19 member Task Force to examine the issue of
human trafficking in California and make findings and
recommendations to the Governor, the Attorney General and the
Legislature. Notwithstanding the training required by Section
13519.14, one of the recommendations of the Task Force was, "The
Legislature should mandate a two-hour training session on human
trafficking for state and local law enforcement through the
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Commission on Peace Officers Standards and Training (POST) that
would be offered through a telecourse and learning portal to
strengthen the chance of successful identification of victims and
prosecution of traffickers. POST should be encouraged to include
human trafficking training for law enforcement in its Basic
Academy Curriculum, and law enforcement should include this
training during roll-call sessions." (Human Trafficking in
California, Final Report of the California Alliance to Combat
Trafficking and Slavery Task Force, October 2007, pg. 9,
http://safestate.org/documents/HT_Final_Report_ADA.pdf.)
DO THE TRAINING REQUIREMENTS OF AB 22 AND SB 180 ADEQUATELY
ADDRESS THE NEED FOR LAW ENFORCEMENT TRAINING WITH RESPECT TO
NOTIFYING HUMAN TRAFFICKING VICTIMS OF AVAILABLE FEDERAL
ASSISTANCE?
SHOULD ADDITIONAL LAW ENFORCEMENT TRAINING BE MANDATED, AS
SPECIFIED, WITH RESPECT TO NOTIFYING HUMAN TRAFFICKING VICTIMS OF
THE AVAILABILITY OF THE U VISA?
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