Bill Description: House Bill 494 reorganizes Idaho laws that criminalize human trafficking and sex work, imposes mandatory minimum incarceration periods for certain crimes, including a misdemeanor, and expands the scope of criminal forfeiture.

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Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

House Bill 494 is a 42-page bill reorganizing chapters 56 and 86, Title 18, Idaho Code, and other related code sections. Chapter 56 would be renamed from "Prostitution" to "Commercial Sexual Activity," and this change in terminology would be adopted throughout Idaho code. 

Unfortunately, these code sections continue and exacerbate the current problem of combining and conflating two kinds of activity in criminal code. The first kind is made up of serious crimes with victims, such as human trafficking, or using a child for commercial sexual activity. The second one consists of entirely voluntary sex work involving consenting adults, which is termed "soliciting commercial sexual activity." (This was previously known as "patronizing a prostitute.")

Under the bill, the penalties for serious crimes are increased and some mandatory minimum sentences are added or increased.

The penalties for "human sex trafficking" increase to imprisonment for a period of 5 – 25 years and a fine of $15,000 – $80,000. The penalties for "human sex trafficking of a child" increase to imprisonment for a period of 10 – 30 years and a fine of $20,000 – $100,000.

The penalty for the newly defined crime of "human labor trafficking" would be set at 3 – 25 years imprisonment and a $10,000 – $80,000 fine. The penalty for "human labor trafficking of a child" will be set at 5 – 25 years imprisonment and a fine of $15,000 – $80,000.

Far more concerning than the harsh penalties imposed for these real crimes is a new mandatory minimum incarceration period for a misdemeanor conviction of "soliciting commercial sexual activity." This refers to voluntary sexual activity between consenting adults involving "sexual contact in return for a fee." 

Under House Bill 494, "any person convicted of a misdemeanor violation of this section shall be sentenced to a minimum period of confinement of five (5) days in jail and may be sentenced to up to one (1) year in jail or fined up to two thousand dollars ($2,000), or both. The minimum period of confinement shall be served in a county jail, and a court shall not have the power to suspend, withhold, retain jurisdiction over, or commute the minimum period of confinement imposed pursuant to this section."

The imposition of mandatory minimum incarceration period for a misdemeanor is highly irregular. The maximum penalty imposed by this bill would also be double the standard penalty for a misdemeanor, which is up to six months of incarceration and/or up to a $1,000 fine. 

Additionally, the bill would make a second or subsequent violation a felony, while current law applies the felony standard only to a third or subsequent violation.

Of note, the penalty for "providing commercial sexual activity" would remain at the standard penalty for a misdemeanor and only a third or subsequent violation would be considered a felony. 

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Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

In addition to the criminal penalties discussed above, House Bill 494 creates and amends numerous sections of code related to the criminal forfeiture of "any property constituting, or derived from, any proceeds the person obtained directly or indirectly as the result of such violation; and any of the person's property used, or intended to be used, in any manner or part to commit or to facilitate the commission of such violation."

The law would say, "The issue of criminal forfeiture shall be for the court alone, without submission to a jury, as a part of the sentencing procedure within the criminal action."

It is concerning that the details of potential forfeiture would be kept from a jury considering the facts of a case. 

Additionally problematic is new language allowing the state to "request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this chapter … if the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture."

This language allows the state to seize property from someone based on an accusation alone — not a conviction — and to keep the accused from using it during the trial. Despite the constitutional requirement for "speedy" trials, some trials take many months or years. If this bill were enacted, a defendant could be deprived of his dwelling, vehicles, and even bank accounts, severely jeopardizing his ability to defend himself at trial.

Forfeiture of property for purposes of restitution can be justified in cases where victims have suffered articulable harm, but such forfeiture should not occur prior to conviction. 

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