Assembly Committee on Public Safety

AB 1571 Page 1

Date of Hearing: March 27, 2012 Counsel: Milena Blake

ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair

AB 1571 (Donnelly) – As Amended: March 22, 2012

SUMMARY: Increases the penalties for human trafficking involving a commercial sex act and creates a new offense of human smuggling. Specifically, this bill:

1) Specifies that trafficking a person under the age of 18 where the human trafficking does not involve a commercial sex act is punishable by imprisonment in the state prison for 4, 6 or 8 years.

2) States that trafficking a person 18 years or older where the human trafficking involves a commercial sex act is punishable by imprisonment in the state prison for 10, 12 or 14 years.

3) States that trafficking a person under the age of 18 where the human trafficking involves a commercial sex act is punishable by imprisonment in the state prison for 25 years to life.

4) States that a person who commits rape or unlawful sexual intercourse with a minor, as specified, while engaged in human trafficking, as specified, or human smuggling, shall be punished by imprisonment in the state prison for 10 years, in addition to any other penalty.

5) Specifies that if the individual engages in unlawful sexual intercourse with a minor while engaged in human trafficking or smuggling, and would otherwise be eligible to serve his or her sentence in county jail, he or she shall serve the sentence in state prison.

6) Defines "human smuggling" as the importation of people into the country via the deliberate evasion of immigration law, including bringing undocumented aliens into the country, as well as the unlawful transportation and harboring of undocumented aliens already in the country.

EXISTING LAW:

1) Prohibits any person from taking compensation to knowingly make a false or misleading material statement or misleading material statement or assertion of fact in the preparation of an immigration matter which statement or assertion is detrimentally relied upon by another. Violation of this section is a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, a fine not exceeding $2,500, or by both imprisonment and a fine. (Penal Code Section 653.55)

2) Provides that any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of enticement of a minor into prostitution, pimping or pandering, abduction of a minor for the purposes of prostitution, extortion, or to obtain forced labor or services, is guilty of human trafficking. [Penal Code Section AB 1571 Page 2

236.1(a)]:

a) States that violation of this section is punishable by imprisonment in the state prison for three, four, or five years. [Penal Code Section 236.1(b).]

b) States that violation of this section where the victim is under 18 years of age at the time of the commission of the offense if punishable by imprisonment in the state prison for four, six, or eight years. [Penal Code Section 236.1(c).]

3) States that any person who commits human trafficking involving a commercial sex act where the victim was under the age of 18 years at the time of the commission of the offense shall be punished by a fine of not more than $100,000 in addition to other penalties previously specified. [Penal Code Section 236.1(g)(1).]

4) States unlawful deprivation or violation of the personal liberty of another includes substantial and sustained restriction of another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out. [Penal Code Section 236.1(d).]

5) Defines "commercial sex act" as any sexual conduct on account of which anything of value is given or received by any person. [Penal Code Section 236.1(g)(2).]

FISCAL EFFECT: Unknown

COMMENTS:

1) Author's Statement: According to the author, "AB 1571 takes important steps to bring justice to perpetrators of the vicious crimes of rape and human sex trafficking especially against children. With busy ports, large immigrant communities and a porous international border, California has a unique and vital role to play in putting an end to this inexcusable crime against innocence, human dignity and liberty. For the sake of the victims, the communities marred by this exploitation and future generations of Californians, it is critical that perpetrators be brought to justice. AB 1571 will help law enforcement and communities by keeping these criminals off the streets."

2) Distinction between "Trafficking" and "Smuggling": Although "trafficking" and "smuggling" may be used interchangeably in everyday usage, they are legally separate and distinct concepts, and law enforcement officers in California are trained to understand these distinctions.

According to the Commission on Peace Officer Standards and Training (POST) Guidelines on Law Enforcement Responses to Human Trafficking, smuggling has several distinguishing characteristics: (1) the relationship between the parties ends at the destination when fees are paid; (2) the transaction is made for the smuggling service; (3) the person is free to leave upon payment of the fee; and (4) it is a crime against the national borders. [POST, Guidelines on Law Enforcement Response to Human Trafficking (2008), p. 4-5.] In contrast, trafficking is: (1) the relationship does not end at the destination; it involves compelled labor AB 1571 Page 3

or service through the use of force, fraud or coercion; (2) debts are incurred; (3) the person is not free to leave and becomes enslaved; (4) it is a crime against persons; (5) it does not require movement across a state or international border. (ibid.)

The provisions of this bill involve actions related to both smuggling and trafficking. As mentioned in the POST guidelines, smuggling is a crime against national borders, the protection of which is with the sole discretion of the United States Attorney General, as discussed below. It is also worth noting that while there are extensive training guidelines for California law enforcement related to human trafficking, there is no such training related to smuggling, human or otherwise.

3) Immigration Issues Are Committed to the Absolute Discretion of the US Attorney General: In State of California v. United States, 104 F.3d 1086 (9th Circuit 1996), California alleged that the US Attorney General failed to perform his or her statutory duties under specified sections of Title 8, United States Code, by not conducting deportation proceedings immediately following the conviction of aliens eligible for deportation and for failing to take into custody aliens convicted of aggravated felonies upon their release from state incarceration pending a determination of deportability and other related issues.

The Ninth Circuit Court of Appeals rejected California's argument, stating that "agency refusals to institute investigation or enforcement proceedings fall within the exception to reviewability provided by 5 U.S.C. Section 701(a)(2) for action 'committed to agency discretion.' The Court held that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to the agency's absolute discretion . . . these issues are not subject to judicial review." (Id at p. 1094.)

Similarly, the United States Supreme Court has held that "our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders." [See, e.g., Matthews v. Diaz, 426 U.S. 67 (1976).] States may not impose auxiliary burdens on aliens. (Toll v. Moreno, 458 U.S. 1 (1982).)

In Williams v. Williams, 328 F. Supp. 1380 (U.S. District Court for the District of Virgin Islands), the Court held that non-compliance with immigration laws was not a reason to deny the parties the jurisdiction of the civil courts of the United States. "To deny an alien access to our divorce courts on the sole ground that he may be in violation of an immigration law would be to deny both due process and the equal protection of the laws. Such a denial would attach a civil disability to some aliens without the prior benefit of the procedures designed or the purpose of enforcing the immigration laws. [See 8 U.S.C. § 1251 et seq.; 8 C.F.R. pt. 241-44 (1970).] The divorce court is patently an inappropriate forum in which to attempt to reproduce these procedures. An exclusion from court on this ground would also discriminate, without compelling reason to do so, against persons who violate this particular immigration law, as distinguished from persons who violate any other law. The remedy for a violation of 8 U.S.C. § 1101(a)(15)(H) is deportation or other administrative sanctions, not withdrawal of access to our divorce courts." The Williams Court thus rejected using the state court system to assist federal immigration authorities with the enforcement of immigration law, a field fully occupied by the Federal Government.

The Ninth Circuit Court of Appeals has affirmed that "power to regulate immigration is unquestionably exclusively a federal power. [T]he United States Constitution provides that AB 1571 Page 4

Congress shall have the power to . . . establish a uniform Rule of Naturalization. U.S. Constitution, article I, § 8." [Cazarez-Guiterrez v. Ashcroft, 382 F. 3d 905 (2004).] The Ninth Circuit has repeatedly recognized that the immigration laws should be applied uniformly across the country, without regard to the nuances of state law." (Id. at p.913.)

This bill is one of several bills in this Committee that have attempted to use California State law enforcement resources in the enforcement of federal immigration laws. As stated in a long line of federal court cases, enforcement of immigration laws is a matter entirely committed to the US Attorney General. [See, e.g., Takahashi v. Fish and Game Commission, 334 U.S. 410, 419 (1948); California v. United States, 104 F. 3d 1086 (9th Circuit 1996); New Jersey v. United States, 91 F. 3d 463 (3rd Circuit 1996).] Individual states may not enact laws that impose an auxiliary burden upon the entrance or residence of aliens that was never contemplated by Congress. This was recently reiterated by the Ninth Circuit, which upheld the injunction of Arizona's SB 1070, which, in part, grants immigration enforcement authority to state and local law enforcement, on grounds of federal preemption of immigration law. [United States v. Arizona, (9th Cir. 2011) 641 F.3d 339, cert. granted Dec. 12, 2011.]

4) Vagueness and Due Process: The "void for vagueness" doctrine exists in the due process clause of the Fifth and Fourteenth Amendments. It is a general principle of statutory law that it must be definite to be valid. "A statute is void for vagueness when its prohibition is so vague as to leave an individual without knowledge of the nature of activity that is prohibited. To pass constitutional muster, statutes challenged as vague must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply it to avoid arbitrary and discriminatory enforcement." [16A Am.Jur. 2nd (2006) Constitutional Law §920; Maroney v. University Interscholastic League (5th Cir. 1985) 764 F.2nd 403.] "The due process doctrine concerning vagueness of statutes incorporates notions of fair notice or warning and requires legislatures to set reasonably clear guidelines for law enforcement officials and tiers of fact in order to prevent arbitrary and discriminatory enforcement; there is a denial of due process where inherently vague statutory language permits selective law enforcement." [Smith v. Goguen (1974) 415 U.S. 566, 573.]

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abut[s] upon sensitive areas of basic first amendment freedoms, it 'operates to inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." [Grayned v. City of Rockford (1972) 408 U.S. 104, 108.]

In its present form, this bill would require imposing an additional 10 year penalty for engaging in specified sex offenses while engaged in "human smuggling." The definition of AB 1571 Page 5

human smuggling in the bill includes "the unlawful transportation" of undocumented aliens already in the country. There is no definition of unlawful transportation, and there is no definition found elsewhere in the penal code. It is unclear what behavior would be prohibited under this section. Would driving a person who is undocumented in a car without seatbelts violate this provision? Would driving a person who is undocumented in a car at night without the headlights on? As a reasonable individual would not know if he or she is violating this section, a court would likely strike down this provision as vague.

5) Effect on Criminal Justice Realignment Act: Criminal justice realignment created two classifications of felonies: those punishable in county jail and those punishable in state prison. Realignment limited which felons can be sent to state prison, thus requiring that more felons serve their sentences in county jails. The new law applies to qualified defendants who commit qualifying offenses and who were sentenced on or after October 1, 2011. Specifically, sentences to state prison are now mainly limited to registered sex offenders and individuals with a current or prior serious or violent offense. In addition to the serious, violent, registerable offenses eligible for state prison incarceration, there are approximately 70 felonies which have been specifically excluded from eligibility for local custody (i.e., the sentence for which must be served in state prison).

This bill specifies that notwithstanding the realignment provisions of Penal Code Section 1170(h), the sentence for this offense must be served in state prison. Thus, this bill creates a new exclusion for local custody eligibility and, as such, conflicts with the policy change created by realignment to shift the responsibility for low-level adult offenders from the state to the counties.

6) On-going Concerns for Prison Overcrowding: In November 2006, plaintiffs in two ongoing class action lawsuits - Plata v. Brown (involving inmate medical care) and Coleman v. Brown (involving inmate mental health care) - filed motions for the courts to convene a three-judge panel pursuant to the U.S. Prison Litigation Reform Act. The plaintiffs argue that persistent overcrowding in the state’s prison system was preventing the California Department of Corrections and Rehabilitation (CDCR) from delivering constitutionally adequate health care to inmates. The three-judge panel declared that overcrowding in the state’s prison system was the primary reason that CDCR was unable to provide inmates with constitutionally adequate health care. In January 2010, the three-judge panel issued its final ruling ordering the State of California to reduce its prison population by approximately 50,000 inmates in the next two years. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ S- 90-0520 LKK JFM P/NO. C01-1351 THE.]

The United State Supreme Court upheld the decision of the three-judge panel, declaring that “without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill” inmates in California’s prisons. [Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.]

According to a recent report by the Legislative Analyst's Office, "Based on CDCR’s current population projections, it appears that it will eventually reach the court-imposed population limit, though not by the June 2013 deadline." [See Refocusing CDCR After the 2011 Realignment, Feb. 23, 2012, pp.3; < http://lao.ca.gov/analysis/2012/crim_justice/cdcr- 022312.pdf>.] "In particular, the projections show the state missing the final population limit of no more than 110,000 inmates housed in state prisons by June 2013. Specifically, the AB 1571 Page 6

projections show the state exceeding this limit by about 6,000 inmates. However, the projections indicate that the state will meet the court-imposed limit by the end of 2014." (Id. at p. 9.)

"While the state has undergone various changes to reduce overcrowding prior to the passage of the realignment legislation—including transferring inmates to out-of-state contract facilities, construction of new facilities, and various statutory changes to reduce the prison population—the realignment of adult offenders is the most significant change undertaken to reduce overcrowding." (Id. at p. 8.) Because the provisions of this bill require a defendant to serve his or her sentence in state prison, it appears to aggravate the on-going problem of prison overcrowding.

7) Related Legislation:

a) AJR 1 (Donnelly) urges Congress and the President of the United States to restore full funding for the federal State Criminal Alien Assistance Program and to fully reimburse states for the cost of incarcerating undocumented criminals. AJR 1 failed passage on the Assembly Floor.

b) AJR 17 (Solorio), Chapter 124, Statutes of 2011, urged Congress and the President of the United States to increase funding for various law enforcement and crime prevention programs and to fully reimburse states for the cost of incarcerating undocumented criminals.

c) AB 26 (Donnelly) makes it a felony under specified circumstances for an undocumented immigrant to be present on public or private land, and would prohibit public officials and agencies from adopting a policy that would restrict enforcement of federal immigration law. AB 26 failed passage in the Assembly Judiciary Committee.

d) AB 1031 (Donnelly) requires an arresting authority report the presence of an individual to the United States Immigration and Customs Enforcement if that individual is arrested for driving under the influence (DUI) or DUI with injury, as specified, and the individual fails to provide the arresting authority with the appropriate documentation demonstrating his or her legal presence in the United States. AB 1031 failed passage in this Committee.

8) Previous Legislation:

a) AB 1082 (Garrick), of the 2007-08 Legislative Session, would have permitted federal and local law enforcement officials to cooperate with enforcement of immigration laws, provided that the Director of Homeland Security develop a program to reimburse local law enforcement in an amount equal to the prorated salary of the local officer for time the officer spent attending training on the federal Immigration Reform and Immigrant Responsibility Act of 1996. AB 1082 failed passage in this Committee.

b) AB 648 (Adams), of the 2007-08 Legislative Session, would have created a new 10-year sentencing enhancement for any felony conviction of a person who was previously convicted of a felony in California for which he or she was deported from the United States. AB 648 failed passage in this Committee. AB 1571 Page 7

c) AB 39 (Benoit), of the 2007-08 Legislative Session, would have required the Secretary of CDCR to demand in writing that the US Attorney General take federal custody of any undocumented inmate incarcerated in California's correctional system. AB 39 failed passage in this Committee.

d) AB 332 (Bogh) of the 2005-06 Legislative Session, would have provided that it would be the policy of California that no law enforcement entity or any local governing body may adopt any ordinance, rule, regulation or order, or otherwise implement a policy that prohibits law enforcement officers from initiating action to discover a person's immigration status, or that prohibits a law enforcement officer from arresting or booking a person for entering the United States illegally. AB 332 failed passage in this Committee.

e) SB 1314, Chapter 567, Statutes of 1994, requires state correctional agencies, within 48 hours of establishing identifying information, to transfer undocumented felons to the custody of the US Attorney General and required that evaluation and classification procedures cease once identity as undocumented felons has been established. This law was contingent upon enactment of federal legislation requiring the United States government to imprison in the federal prison system any undocumented alien convicted of a felony in California.

f) SB 1258 (Torres), of the 1993-94 Legislative Session, would have required that all undocumented aliens be transferred to the United States government within 48 hours of identification as an undocumented alien. SB 1258 was vetoed.

REGISTERED SUPPORT / OPPOSITION:

Support

California Probation, Parole and Correctional Association 4 Private Individuals

Opposition

American Civil Liberties Union California Attorneys for Criminal Justice California Public Defenders Association Coalition for Humane Immigrant Rights of Los Angeles

Analysis Prepared by: Milena Blake / PUB. S. / (916) 319-3744