BILL ANALYSIS
AB 1002
Page 1
Date of Hearing: April 14, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1002 (Fong) - As Amended: March 26, 2009
As Proposed to be Amended in Committee
SUMMARY : Creates the Human Trafficking Trust Fund, and provides
that forfeiture proceeds from human trafficking be deposited in
that fund for use, upon appropriation by the Legislature, for
the purpose of funding services for the victims of human
trafficking and for providing training to law enforcement and
prosecutorial personnel to help combat human trafficking.
Specifically, this bill :
1)States that for criminal profiteering forfeiture proceeds
related to human trafficking violations shall no longer be
deposited into the General Fund (GF) or to local governmental
entities to recoup the costs the incur in the forfeiture
process. Instead, the funds will be deposited into a Human
Trafficking Trust Fund.
2)States that the Human Trafficking Trust Fund is hereby
established within the GF for the purpose of funding services
for the victims of human trafficking and for providing
training to appropriate personnel to help combat human
trafficking.
3)Specifies that upon appropriation by the Legislature, 90% of
the funds deposited in the Human Trafficking Trust Fund shall
be distributed to non-governmental, non-profit entities
providing direct services to the victims of human trafficking.
Services eligible for this funding shall include, but not be
limited to, housing and medical care, legal assistance, job
training, case management, mental health services, education
and life skills training, and travel expenses. Upon
appropriation by the Legislature, 10% of these funds shall be
distributed to a combination of non-governmental, non-profit
entities; law enforcement agencies; and prosecutors for
purposes of training law enforcement personnel and prosecutors
regarding human trafficking and the laws pertaining to
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combating and prosecuting human trafficking.
EXISTING LAW :
1)Establishes the "California Control Profits of Organized Crime
Act." (Penal Code Section 186.)
2)Defines "human trafficking" as a "criminal profiteering
activity." [Penal Code Section 186.2(a)(28).]
3)States that the following assets of any person who is
convicted a specified underlying offense and of engaging in a
pattern of criminal profiteering activity are subject to
forfeiture (Penal Code Section 186.3):
a) Any property interest whether tangible or intangible,
acquired through a pattern of criminal profiteering
activity.
b) All proceeds of a pattern of criminal profiteering
activity, which property shall include all things of value
that may have been received in exchange for the proceeds
immediately derived from the pattern of criminal
profiteering activity.
4)States that, notwithstanding that no response or claim has
been filed, in all cases where property is forfeited, as
specified, and, if necessary, sold by the Department of
General Services (DGS) or local governmental entity, the money
forfeited or the proceeds of sale shall be distributed by the
state or local governmental entity as follows (Penal Code
Section 186.8):
a) To the bona fide or innocent purchaser, conditional
sales vendor, or holder of a valid lien, mortgage, or
security interest, if any, up to the amount of his or her
interest in the property or proceeds, when the court
declaring the forfeiture orders a distribution to that
person. The court shall endeavor to discover all those
lien holders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to
an additional 60 days to ensure that all valid claims are
received and processed.
b) To DGS or local governmental entity for all expenditures
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made or incurred by it in connection with the sale of the
property, including expenditures for any necessary repairs,
storage, or transportation of any property seized, as
specified.
c) To the State's GF or local governmental entity,
whichever prosecutes.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Human
trafficking is the modern form of slavery in today's society.
Victims, often women and children, are forced into labor,
prostitution, and other forms of exploitation. In fear of
their lives and their families' lives, these victims often
succumb to horrendous conditions on a daily basis. Rape,
abuse, isolation, confinement, and emotional trauma are just
some of the conditions these victims face. Unfortunately,
California is a prominent destination for this crime.
"In the past, the state has enacted legislation that protects
and assists these victims. AB 22, AB 1278, AB 2810, SB 972,
and SB 1569 have given assistance to victims of human
trafficking and law enforcement agencies in order to protect
and prevent this crime. However, more needs to be done in
order to protect the human rights of all individuals.
"AB 1002 will ensure that victims of human trafficking will have
access to immediate services once they are freed from
captivity. In its final report in October 2007, the
California Alliance to Combat Trafficking and Slavery Task
Force recommended the need for the Legislature to identify
potential funding sources to fund non-governmental victim
service organizations. AB 1002 will establish that the
proceeds from property forfeited from those convicted of human
trafficking will go directly to the human trafficking fund for
the purpose of assisting these victims. Also, some proceeds
will be appropriated to law enforcement agencies and
prosecutors to combat this crime."
2)Background : According to background supplied by the author,
"Existing law authorizes that those convicted of human
trafficking may have property used in the process of criminal
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profiteering, forfeited to state or local government entities.
Existing state law does not fund direct services to victims
of human trafficking. Services to these victims are provided
in the form of reimbursements through the Victim's
Compensation Program. This bill would create the California
Human Trafficking Fund within the GF. Proceeds from property
sold connected with human trafficking will be deposited into
the fund. Upon appropriation by the Legislature, 90% of the
fund will be distributed to nongovernmental entities to
provide direct services to victims. 10% of these funds will
be distributed to law enforcement agencies and prosecutors for
the purpose of combating this crime."
3)Criminal Profiteering Procedure : Criminal profiteering asset
forfeiture is a criminal proceeding held in conjunction with
the trial of the underlying criminal offense. Often, the same
jury that heard the criminal charges also determines whether
the defendant's assets were the ill-gotten gains of criminal
profiteering. As a practical matter, the prosecution must
assemble its evidence for the forfeiture matter simultaneously
with the evidence of the crime.
In contrast, drug asset forfeiture is a separate civil action.
Except where the property forfeited is cash of value of at
least $25,000, a conviction for an underlying drug offense is
required. However, the rules of civil discovery and procedure
apply. The prosecution can conduct substantial civil
discovery to determine the extent of the defendant's assets.
Pursuant to Public Resources Code Section 14591, it is a crime
to defraud the State's Recycling Fund. However, in order for
the asset forfeiture laws to apply in a recycling fraud case,
the prosecutor must argue that the violation of Public
Resources Code Section 14591 is "grand theft" as defined in
Penal Code Section 487. The crime of grand theft is currently
included in the definition of criminal profiteering contained
in Penal Code Section 186.2. This bill removes the second
step of proving that the recycling fraud is grand theft in an
asset forfeiture case. By listing fraud of the California
Beverage Container Recycling and Letter Reduction Act in Penal
Code Section 186.2, a prosecutor can seek asset forfeiture
without proving grand theft.
4)Criminal Profiteering Proceeds : Under existing law, the
forfeited proceeds of criminal profiteering are placed in the
county GF with no directions for use. There is an exception
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for forfeiture in child pornography cases. In such cases, the
money is deposited in the county or State Children's Trust
Fund for child abuse and neglect prevention and intervention.
(Penal Code Section 186.8 and Welfare and Institutions Code
Sections 18966 and 18969.)
In California drug asset forfeiture, law enforcement receives
65% of forfeiture proceeds. (Health and Safety Code Sections
11469 et seq.) Of this amount, 15% must be placed in a
special county or city fund used "to combat drug abuse and
divert gang activity." Under federal forfeiture law allowing
"adoption" of state seizures of drug proceeds, the agency
seizing that property may receive as much as 80% of these
proceeds. This money must be used according to guidelines set
by the United States Department of Justice and require that
the money be used largely for law enforcement.
5)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
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
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modern slaves in homes, sweatshops, brothels, agricultural
fields, construction projects and restaurants.
6)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."
7)Argument in Support : According to the Coalition to Abolish
Slavery and Trafficking , "On behalf of the Coalition to
Abolish Slavery and Trafficking (CAST), we are proud to be the
sponsor of AB 1002. AB 1002 will provide funding for human
trafficking victim services as well as law enforcement and
prosecutor training on human trafficking by directing the
proceeds of assets forfeited by human traffickers into the
Human Trafficking Trust Fund.
AB 1002
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"This approach was recommended 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.
"Prominent in the recommendations was the need to fund
non-government organizations that can provide immediate
services to victims including 'caseworker, shelter, legal
support, health care, interpreter and other services, as well
as community outreach and measures to help victims become
self-sufficient'. The need for these services in place is
critical as victims will not typically be in a position where
they will, once freed, have a safe place to go and the ability
to pay for services upfront for later reimbursement from the
Victims Compensation Fund. Many victims of human trafficking
have been brought into the California from foreign countries,
and the very factors that the traffickers use to enslave -
isolation from friends and family, language barriers, lack of
knowledge of our systems, dependency on trafficker for all
resources, is the very reason why the victims will not be able
to fend for themselves and must be provided with comprehensive
services upon their liberation.
"To date, most human trafficking prosecutions have occurred at
the Federal level so currently there are not monies from state
or locally prosecuted cases. However, we would like to have
the Fund set up in advance of increases in state and local
prosecutions. CAST and other organizations are working
cooperatively with law enforcement and others to increase the
awareness and the prosecution of these heinous crimes using
California agencies in addition to Federal agencies. AB 1002
will have the Fund in place for when those cases occur.
8)Related Legislation : AB 17 (Swanson) increases fines and
creates impoundment and forfeiture proceedings for specified
prostitution related crimes. This bill is pending hearing by
this Committee.
9)Prior Legislation : SB 968 (Bowen), Chapter 125, Statutes of
2003, included fraud involving the California Beverage
Recycling Program in the crimes for which the State may seek
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criminal asset forfeiture from a convicted defendant.
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference
Coalition to Abolish Slavery and Trafficking
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744