January 20, 2010
Pursuant to Elections Code Section 9005, we have
reviewed the proposed statutory initiative related to human trafficking
(A.G. File No. 09‑0103).
Background
Federal Law. Federal law contains
various criminal prohibitions against human trafficking. The Federal
Trafficking Victims Protection Act generally defines two types of
trafficking in persons: (1) sex trafficking in which a commercial
sex act is induced by force or fraud, or in which the victim performing
the act is under age 18, and (2) labor trafficking in which
persons are recruited, transported, provided, or obtained for labor or
services through the use of force or fraud. These federal laws are
enforced by federal law enforcement agencies that may act independently
or in conjunction with state and local law enforcement agencies.
State Law. Existing state law
contains similar criminal prohibitions against trafficking in persons.
Specifically, state law defines human trafficking as violating the
liberty of a person with the intent to either (1) commit certain felony
crimes (such as pandering or prostitution) or (2) obtain forced labor or
services. Human trafficking is punishable under the state Penal Code by
a state prison sanction of up to five years, or, if the victim is under
the age of 18, by a state prison sanction of up to eight years. In
addition, state law permits victims of human trafficking to file for
damages from defendants in civil court. State law also requires that all
funds derived from assets forfeited as the result of a sex trafficking
conviction in which the victim is under age 18 be used to support
programs for minor victims of human trafficking. Forfeited assets
derived from other human trafficking convictions are generally retained
by state and local governments for a variety of purposes.
Proposal
Expanded Definition of Human Trafficking.
This measure proposes to amend the definition of human
trafficking under state law by adding new crimes to the list of criminal
violations that may be associated with human trafficking. For example,
under the measure, violating the liberty of a person with the intent to
distribute obscene matter would now be defined in statute as a form of
human trafficking. In addition, the measure amends the definition of a
sex trafficking crime involving minors such that, similar to federal
law, it would no longer be necessary for the crime to involve force or
coercion in order for it to be considered human trafficking.
More Severe Criminal Penalties for Human
Trafficking. This measure increases the current criminal
penalties for human trafficking under state law. Under the measure, most
sex trafficking and labor trafficking crimes would generally be
punishable by up to 16 years in state prison. Sex trafficking of minors
that involved such actions as force or fraud would be punishable by up
to a life term in prison. Moreover, offenders with previous convictions
for human trafficking could receive an additional and consecutive five
years in prison for each previous conviction. Offenders convicted of
human trafficking which resulted in great bodily injury to the victim
could be punished with an additional and consecutive term of up to ten
years. The measure also permits criminal courts to impose new fines of
up to $500,000 for human trafficking, depending on the specific offense.
In addition, the measure creates a new state crime for, among other
actions, destroying or confiscating a person's government
identification, including but not limited to a passport or immigration
document, for the purposes of restricting the person's liberty of
movement. This crime would be punishable by a state prison sanction of
up to eight years, as well as a fine.
Additional Changes to Human Trafficking
Laws. The measure increases the amount of damages that victims
of human trafficking could potentially be awarded in civil court for,
among other purposes, compensating them for any losses they suffered. It
also increases the statute of limitations for filing such suits and
allows human trafficking victims to be represented by a parent,
guardian, or court appointee in the event the victim is unable to appear
in court.
The measure also affects the trial of criminal
cases involving charges of human trafficking. Specifically, the
measure affects cases involving potential evidence that a victim of
human trafficking was also liable for criminal sexual conduct. This
measure does not allow such evidence to be used to prosecute a crime
victim in such circumstances. It also makes evidence of sexual conduct
by a victim inadmissible for the purposes of attacking the victim's
credibility in court. In addition, this measure states that certain
defenses to the criminal prosecution of human trafficking involving
minors are invalid—for example, a claim that the minor consented to the
illegal activities alleged in the case.
Programs for Human Trafficking Victims.
The measure requires that funds derived from assets forfeited as a
result of any human trafficking conviction—not only those involving the
sex trafficking of minors—be used to support programs for victims of
human trafficking. In addition, the measure provides that a penalty of
up to $100,000, in addition to the penalties discussed above, may be
imposed on defendants convicted of human trafficking, with the proceeds
used to support these same programs.
Law Enforcement Training. This
measure requires that all police officers and sheriff's deputies, as
well as peace officers employed by the California Highway Patrol, who
perform field or investigative work undergo at least two hours of
training in the handling of human trafficking complaints. This training
would have to be completed by July 1, 2012 or within six months of the
officer being assigned to the position.
Fiscal Effects
Currently, human trafficking cases are often
prosecuted under federal law, rather than California state law, even
when California law enforcement agencies are involved in the
investigation of the case. This is partly because these types of crimes
often involve multiple jurisdictions and also because of the federal
government's historical lead role in such cases. Therefore, it is
unknown whether the expanded definition of human trafficking and other
changes proposed in this measure would significantly increase the number
of state human trafficking arrests and convictions or whether most such
cases would continue to be handled primarily by federal law enforcement
authorities. As a result, the potential fiscal effects of this measure
on state and local governments that we discuss below are subject to
considerable uncertainty.
Potential Increase in Local Law Enforcement
Training Costs. As noted earlier, this measure requires that
certain state and local law enforcement officers receive specific
training on human trafficking. The state law enforcement officers
specified in the measure already receive such training. Therefore, there
would be no additional state costs for this training. The fiscal impact
of this requirement on local agencies would partially depend on the
unknown extent to which local officers are currently receiving such
training, such as through the Commission on Peace Officer Standards and
Training. Depending on how local law enforcement agencies choose to
satisfy the measure's training requirements, counties and cities could
collectively incur costs of up to a few million dollars on a one-time
basis to train existing staff, and provide back-up staff to officers who
are in training, with lesser additional costs incurred each year to
train newly-hired officers.
Potential Fiscal Effects on State and Local
Revenues. The measure could have various effects on state and
local revenues. If more offenders are convicted of human trafficking
under the state statutes, there could be an increase in state and local
revenues (including to cities and counties) due to the new criminal
fines established in the measure. However, the measure requires that
some of these revenues be dedicated to programs that serve victims of
human trafficking. In addition, the measure could change the way
revenues from asset forfeitures related to human trafficking cases are
distributed to require that they all be used instead to support programs
serving victims of human trafficking. The net fiscal effect of all of
these changes on state and local government revenues is unknown.
Potential Minor Increase in State and Local
Correctional Costs. If the measure increases the number of human
trafficking arrests, prosecutions, and convictions, it could result in a
minor increase in costs for the state prison and parole systems, as well
as for county jails and probation departments. This is because state and
county governments would be responsible for supervising additional
offenders subject to these provisions. However, given that, as of
December 2009, only six individuals were reportedly being held in state
prison for human trafficking, any increase in costs resulting from this
measure is likely to be minimal compared to the overall cost of the
state and county correctional systems.
Potential Minor Increase in Other State Program Costs.
If the measure were to increase the
number of human trafficking arrests and convictions, it could result in
a minimal increase in costs for certain state health and social services
programs. This is because the state provides certain temporary benefits
to victims of human trafficking until they qualify to receive such
benefits from the federal government. However, the current benefit costs
for human trafficking victims are relatively small compared to the
overall size of these programs. Any increase in health and social
services costs from this measure is therefore likely to be minimal. In
addition, an increase in the number of human trafficking cases could
result in a minimal increase in costs for the state court system.
Summary of Fiscal Effects
It is unknown whether the measure would increase
state human trafficking arrests and convictions given the current
dominant federal role in these types of cases. Thus, the fiscal effects
resulting from the measure are subject to significant uncertainty. The
fiscal effects we have identified are summarized below:
-
Potential increased local government costs of
up to a few million dollars on a statewide basis due to the new
mandatory training requirements for certain law enforcement
officers.
-
Unknown but probably minor net fiscal effects
for state and local governments from a potential increase in human
trafficking arrests and convictions. This would be a negligible
percentage increase in state General Fund spending.
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