AB 124 Justice for Survivors Act (Kamlager) Signed into Law!!!
By Pallavi Garg and Jamie Beck
One of the most surprising facts about human trafficking is that the vast majority of victims of sex trafficking are charged with crimes that directly relate to their trauma. The same can be said for many survivors of domestic abuse or sexual violence. At Free to Thrive, over 75% of our clients have a criminal record that is tied to their trafficking. A Georgetown Law report on The Sexual Abuse to Prison Pipeline explains the path of girls from sexual abuse to the juvenile justice system. This path is even more pronounced for girls of color. The juvenile justice system not only fails to address the trauma that catches girls up in that system, it often exacerbates it.
Free to Thrive was founded to respond to the criminalization of trafficking survivors. We began with post conviction relief, and in the 4 years since we started serving clients, we have won 32 vacatur petitions throughout Southern California clearing 314 criminal records for trafficking survivors using California’s vacatur law. We recognized that vacatur alone is not enough; clearing criminal records treats the symptoms but not the cause. The criminal justice system must take into account the trauma suffered by victims of human trafficking, domestic violence and sexual violence at every step of the criminal case.
That is why Free to Thrive joined other like-minded organizations to create a statewide coalition to advocate for AB 124 - the Justice for Survivors Act. The coalition included representatives from the Black Futures Lab Public Policy Institute, California Coalition for Women Prisoners, Dr. Beatriz María Solís Policy Institute (SPI) - Women’s Foundation of California, Human Rights Watch, National Center for Youth Law, Survived & Punished; USC School of Law Post Conviction Justice Project, and Young Women’s Freedom Center. Free to Thrive was honored to work alongside these organizations in pushing for California’s criminal justice system to recognize and take into account victim-offender intersectionality.
After a year of advocacy by this incredible coalition, on Friday, October 8th, 2021, Governor Newsom signed AB 124 into law! This new law will take us one step closer to justice, restoration and healing.
We are deeply grateful for the partnership of every single survivor who shared their lived experience and advocated fiercely to get this bill signed. AB 124 was conceived and built with leadership from survivors and those most impacted in every stage, from the intentionality of the language to the inclusion of all survivors in the relief we sought.
We appreciate the support of our legislative champion Senator Kamlager and co-authors Assemblymember Bauer-Kahan, Assemblymember Burke, Assemblymember Garcia, Assemblymember Quirk, Assemblymember L. Rivas, and Assemblymember Wicks, and the California Legislative Women’s Caucus, who selected AB 124 as a priority bill.
What does the bill mean for survivors? The following will go into effect on January 1st, 2022:
Extending the existing affirmative defense statute, which currently applies to human trafficking survivors, to also include survivors of intimate partner violence and sexual violence;
Requiring prosecutors to consider the impact of violence experienced by the survivor, whether the individual was a youth at the time of the commission of the offense, or whether the individual was a victim of intimate partner violence, sexual violence, or human trafficking during plea negotiations;
Creating a presumption that judges should start at the lower term when sentencing a survivor to prison if trauma, age, or victimization contributed to the commission of the offense, while maintaining a judge's discretion to order the middle or high term if the aggravating factors outweigh the mitigating factors;
Encouraging judges to consider whether the survivor’s experience of trauma, intimate partner violence, sexual violence, and human trafficking was a contributing factor in the commission of the offense when evaluating a survivor’s petition for resentencing; and
Expanding the vacatur law to allow survivors to petition the court to vacate convictions and expunge arrests for nonviolent offenses that were the direct result of being a victim of intimate partner violence or sexual violence.
In the coming months, there will be a series of training sessions for advocates and survivors to better understand the new law and how to implement it to benefit survivors. Please join us for a four part series on Changing the Narrative: Recognizing the Victimization of Criminalized Survivors. The kick-off event will be a panel on October 20, 2021 at 12:00 pm PST. Click here to register.
While we are invigorated by this step forward, there is much more work to be done to make sure that no survivors are left behind, and that every part of the court process is considered in this policy.
We will call on you to help us move the following pieces forward:
Allowing jurors to consider evidence of an individual’s mental health diagnosis and symptoms when weighing the questions of guilt. The current statute was last amended in 2003. It is unacceptable that our laws are not consistent with our more developed understanding of trauma, brain development, and post-traumatic stress.
Creating a presumption against imposing sentence enhancements and consecutive sentences when the individual is young or a survivor. We know that youth and trauma can jeopardize an individual’s ability to engage in rational and considered analysis of future consequences, and our courts should recognize this, too.
Expanding affirmative defense and vacatur laws to apply to all crimes. Survivors frequently find themselves criminalized and serving unjustly long sentences for violations that are determined to be violent but were a direct result of trauma and abuse. We cannot continue to leave survivors like Cyntoia Brown, Zephaniah Trevino, Sara Kruzan, and Keiana Aldrich behind. Most, if not all, of these survivors were forced to choose between their own survival or that of their abuser/s.
Our goal should always be to protect our communities, especially the most vulnerable. Yet, our laws continually fail survivors, youth, Black and brown people, and especially people with intersecting identities. It is past time that our state consider a person’s full circumstances during any interactions with our justice system, including investigations, arrests, charging decisions by prosecutors, and ultimately determinations of guilt and sentencing before judges. Our work toward justice for survivors is nowhere near complete.
We will continue to advocate for all survivors and ask you to stand alongside us in this tremendously important work. We can’t just stand by while progressive policies only protect some of our community members. Let’s get to work. If you’d like to receive updates about our legislative efforts, please sign up here.
Pallavi Garg is a Staff Attorney and the Criminal Justice program coordinator at Free to Thrive. Jamie Beck is the President & Managing Attorney of Free to Thrive