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Diversion Blog

by | Sep 22, 2018

By Michelle Chen  September 25, 2015
Jenna Torres was about to start college on the day she was arrested for prostitution. Then she became a criminal. The 17-year-old learned this after spending a day in jail and meeting with a lawyer who urged her to plead guilty and participate in the city’s Human Trafficking Intervention Court (HTIC) system.

As she recalled at a recent City Council hearing, “I never agreed to the things they charged me of, but they arrested me anyway.” And she agreed to cop a plea and attend court-mandated “treatment” sessions in exchange for having the charges dismissed. But the criminal procedure cost her more than she imagined.

After cycling through holdings, which left her hospitalized with a urinary-tract infection that Torres attributes to the unsanitary facilities, she wended her way through a few weeks of mandatory counseling sessions. Torres would have far preferred freshman courses to the perfunctory talk therapy, but, ironically, that was made nearly impossible by her court intervention. She scrambled between court dates and counseling sessions, she recalled, knowing that “If I went to school and not do the programs, they would arrest me.

On top of court appointments in Harlem and classes in Staten Island, Torres was raising an infant in Brooklyn, struggling as a single mother to cope with his health problems following a premature birth. “If I go to the court, and not deal with my son,” she recalled in a follow-up interview, “my son’s going to be even more sick than he was when I left.” By the time she “graduated” from the program, she had dropped school. “It’s ridiculous, because the things that they have put in place to help you kind of collide with each other,” she says.

According to the peer-led sex workers’ advocacy group Red Umbrella Project, the city’s scheme to divert sex workers from the criminal-justice system has often further criminalized them, by treating all people arrested for prostitution as one-dimensional victims—presuming that they are undeserving or incapable of asserting power or self-determination over their labor or their bodies.

The city runs five anti-trafficking courts, part of a statewide network of 11 such courts that handle about 90 percent of prostitution-related criminal cases. Guided by recently passed state legislation aimed at criminalizing sex trafficking and rehabilitating child victims, the courts are designed, according to a City Council committee report, to route the participants into “services that will assist in pursuing productive lives, rather than sending victims back into the grip of their abusers” and “to promote a just and compassionate resolution to the victims of sex trafficking.” Upon completion, participants’ criminal records can be scrubbed, if they stay arrest-free for six months.

To Council Member Rory Lancman, chair of the Courts & Legal Services Committee, the “working assumption,” is that “every person who is working as a prostitute should get out of that life.” Under that rationale, “If someone commits a crime, they’ve got to pay the consequences.… And here we’re offering a very, very attractive alternative [to] going to jail. And I think [despite] the fact that that alternative is mandatory—it’s still a pretty good deal.”

Margaret Martin, an attorney who works with the policy and planning wing of the state’s Office of Court Administration, tells The Nation that since participants are unlikely to be readily identified as trafficking victims in court and face complex social barriers in pushing them toward services, “the mandate is overall a positive thing in the lives of the participants in these courts.” Under current law, which categorically criminalizes sex work, she says, “This is an imperfect solution…. We’re acknowledging the fact that the large majority of these women are human trafficking victims, crime victims themselves, and therefore need to be treated as such.”

The demographics of participants seem to reflect the traditional criminal-justice system in more insidious ways. Activists cite court data showing extremely disproportionate arrests of black and Latina trans people at the Brooklyn and Queens courts—suggesting police profiling—along with inadequate interpreting services for participants with limited English proficiency, particularly in Queens, where nearly half of participants speak Mandarin.

While HTICs purport to “creatively” divert people from jail, the testimony of Stacy—a married mother and Red Umbrella Project activist who was arrested in Brooklyn while walking to get food at a neighborhood deli—shows how criminalization-based policy regimes can drive people into the system, not deter them:

I was told take the deal or I’d face jail time based on my 15-year old history of prostitution arrests as a minor, when I was a victim of human trafficking as defined under Federal Law.… [The counseling sessions] were an invasion of my life and time, especially considering I was not offered job training, financial aid application/tuition/grant assistance for college, housing assistance, or any other meaningful services.

While RedUP’s founding principle is full decriminalization of sex work, the group says HITCs can be reformed immediately to protect participants’ human rights. It recommends establishing an independent oversight committee, with representation from people who have been through the system; and following the council’s recently approved funding boost for court-mandated services, RedUP wants the program restructured to prioritize “economic empowerment through job training assistance and educational opportunities,” while making other social services, especially trauma-based psychotherapy, voluntary.

Citing research and interviews on hundreds of HTIC cases in 2013 and 2014, RedUP director Audacia Ray says via e-mail, “The reason most people we work with are in the sex industry is because of economic insecurity, and therapy does nothing to help with that. Sex work isn’t a moral issue, it’s an economic one.”

Torres, now 20, ultimately connected with RedUP through the Legal Aid Society. There, instead of court orders, she got voluntary job-training assistance and engaged with a growing sex worker activist community. Reflecting on her court experience, she testified, “I didn’t need to be treated for sex work; that isn’t an illness.”

What if she had encountered a RedUP outreach worker instead of a cop, on that fateful day three years ago? Maybe she would have found a more dignified pathway to “justice and compassion”—not through a judge’s order, but through a peer asking her what she really needed.

Diversion Blog

by | Sep 22, 2018

Mellisa Gira Grant in the Village Voice, July 18, 2017
One Friday morning in June, two Immigration and Customs Enforcement agents tried to conceal themselves in a courtroom vestibule, where a “No standing” sign was taped to the wall. Hidden from the view of everyone in Queens Criminal Court room AP8, the agents could see and faintly hear who was being called before the judge’s bench, including a 29-year-old Chinese woman who expected to have her case resolved that day. She had no idea ICE was there to arrest her.

The woman’s Legal Aid Society attorney learned of ICE’s plans from Queens Criminal Court Judge Toko Serita. The judge was under no obligation to share this information; Legal Aid Criminal Defense Practice attorney-in-charge Tina Luongo later said at a City Council hearing that by doing so, the judge “probably broke a rule.” The woman’s attorneys had to act quickly: After Judge Serita called her case, the woman would be fair game for ICE. The public defenders made the desperate decision to ask the judge to set bail in her case, and through a Mandarin interpreter they explained the situation. In the custody of a city court or in jail, it would be much harder for ICE to arrest her. Minutes later, the woman was taken into custody by court officers. Kate Mogulescu, the Criminal Defense Practice supervising attorney, who was there that day, later told the City Council, “This was terrifying for our client and her family.”
The plainclothes immigration agents refused to produce identification, according to Mogulescu. She approached one of the agents, who she said told her his last name was Lee and that he was there for several women in AP8, though he would not say whom — nor did he produce warrants or any paperwork for those women. Later that day, Legal Aid staff said, they saw that the same ICE team had taken two other people into custody from outside the Queens courthouse. Once it appeared ICE was gone, they asked for the Chinese woman’s case to be called again. She was then released from custody.

ICE’s attempt to arrest this woman made local headlines, but the stories had few details about the agency’s target. She had been arrested by the NYPD in February in Queens and charged with prostitution and practicing massage without a license, a common allegation after police raid massage parlors. This arrest is how she ended up in AP8, one of New York’s human trafficking intervention courts, and how she came to be described in statements to the press as a victim of human trafficking — though she had made no statements of her own.

A human trafficking intervention court does not prosecute people for trafficking. The “intervention” in the name begins with vice officers, after they place someone accused of prostitution offenses in handcuffs. “By and large, we work under the assumption that anyone who’s charged with this kind of crime is trafficked in some way,” Judge Judy Harris Kluger, one of the court’s prominent advocates, told the City Council in 2013. The courts, she has written, are meant to treat those arrested as “victims, not defendants.”

Now ICE has signaled that it will use the trafficking courts as a way to stalk immigrants. As Legal Aid’s client learned, ICE wields terrifying power in these courts: Agents will try to take people away from the defense attorneys standing at their sides, and without a warrant. People can then disappear into the immigration detention system, where they are not currently guaranteed the same rights to legal representation. As it stands, defendants risk being released from criminal court right into the custody of ICE. “This is an agency that zealously guards its ability to arrest anyone that it wants, wherever it wants to do it,” Andrew Wachtenheim, supervising attorney at the Immigrant Defense Project, testified before City Council in June.
On a blistering-hot morning just six days after ICE showed up at the Queens trafficking court, dozens of community activists flanked members of the council, including Speaker Melissa Mark-Viverito, on the steps of City Hall. “To target a survivor of human trafficking as she benefits from a highly specialized court program to help survivors rebuild their lives is indefensible,” Mark-Viverito said. “We will not allow this to stand.”

But in addition to the outrage expressed at ICE arresting immigrants in this sanctuary city, there is a question worth asking: how and why those immigrants came to be in trafficking court in the first place. The vast majority — 91 percent — of Legal Aid clients charged with unlicensed massage are not U.S. citizens, Mogulescu told the City Council.

Immigrants, like the other defendants in trafficking court, got there the same way: through arrests. “While we share in all of the outrage and shock that this happened in the human trafficking intervention court, we really can’t be very surprised,” Mogulescu said. “This is a question of arrest policy, and who is brought into criminal court as sitting ducks for ICE enforcement.”

On average, the NYPD arrests three people a day — 1,196 in 2015, according to data obtained by the Legal Aid Society from the New York State Division of Criminal Justice Services — for offenses related to selling sex, including prostitution, “loitering for the purpose” of prostitution, and “unauthorized practice of a profession” (the charge used in massage parlor raids).

The day after the City Hall press conference, Judge Serita would hear another thirty or so cases in her trafficking court. Waiting their turn on the wooden benches, the defendants sat solo and in pairs. It was not unusual to see one woman stick around until another’s case was called; they’d watch each other’s bags, exchange commentary between cases, and leave together. The defendants the week after ICE turned up were Asian, Latina, and black, which also wasn’t unusual. Most of the defendants asked for an interpreter — Chinese, Korean, Spanish. One defendant almost missed her case when the court officer fumbled with her name. Another woman two rows back called out to her in time for her to rush up to the bench.

Judge Serita’s demeanor throughout was warm but practiced. She offered variations of the same phrase: “If you stay out of trouble and lead a law-abiding life, your case will be dismissed.” If you take at face value the court’s mission to treat people as victims and not criminal defendants, it’s a strange thing to say. Women engaged in prostitution, the court’s advocates argue, don’t have a choice when it comes to the offenses they stand accused of. How are they then supposed to choose to lead “law-abiding lives” as the judge orders?
These defendants’ victim status is conditional: not only on agreeing to “stay out of trouble,” but on attending multiple sessions with one of the agencies Serita assigns them to based on their case. Then they return to court, where the judge reads a report on their progress. The judge can decide if their case will be sealed or if she will mandate more sessions. On that day, the week after ICE targeted her court, Serita saw defendants she had mandated to six, eight, or even twelve sessions. If defendants fail to complete the sessions, or if they fail to appear again in court, a warrant could be issued for their arrest.

When the statewide rollout of the trafficking courts was announced in 2013, they were heralded as a new approach to addressing prostitution charges. This new approach has not been accompanied by a new approach to policing. Since 2013, some prostitution arrests have gone up, and dramatically in Asian immigrant communities, like charges for “unauthorized practice of a profession,” the same offense the woman targeted by ICE faced. In 2012, there were just 31 such arrests of Asian-identified people in New York City, according to a 2017 report from the Urban Institute and the Legal Aid Society; in 2016, the NYPD arrested 631 Asian-identified people for this offense. Overall arrests of Asian-identified people in New York City charged with both unlicensed massage and prostitution increased by 2,700 percent between 2012 and 2016.

In trafficking court, judges don’t get into the particulars of these arrests. “I’m gonna try to stay out of trouble,” one of the Queens AP8 defendants was heard to say as she left court. “But I can’t promise.” No one in this court could. The defendants walking out with their cases sealed have every reason to believe they could be arrested again, so long as the police treat any past prostitution arrest as a reason to lock them up. As the Voice has reported, this is all too common: A group of women are suing the city over what looks like the standard police practice of profiling women based on their race, gender, and past arrests, even those who have gone through trafficking court.

Even before that suit, the City Council was aware of the problems with prostitution arrests. In 2015, at a special hearing on the trafficking courts, Jessica Peñaranda, special project coordinator at the Urban Justice Center’s Sex Workers Project (SWP), testified, “While we support the basic tenets of the courts as a way to reduce the harm and risk of exploitation of sex workers and trafficking victims, our extensive experience informs a strong belief that arresting individuals is not the most effective way.” Peñaranda added that one defendant had told SWP that, during a raid, an undercover officer had commented, “If it wasn’t for us finding you, you would be dead.”

At the same hearing, Audacia Ray, then the director of the Red Umbrella Project (RedUP) — a group led by people in the sex trade, including those who have been arrested and sent to the courts — also testified. “The assumption is embedded in the system right now that arresting folks is rescue and is a way to get people into services,” Ray told the council. “There has been a lot of talk today about the violence of the sex industry and the trauma people face….For us, experiences in the courts and experience with the police — that is trauma and violence.”

Judges know, intimately, the risks that come with these courts. Though ICE’s presence in the trafficking courts is a recent development, deportation is not a new threat faced by defendants. “You understand that if this happens again,” Judge Serita told a defendant in 2013 when a reporter was present, “the offer that is being made now might not happen, and if there are immigration issues you can be deported.” At the press conference to protest ICE actions in the trafficking courts, Kluger — one of the architects of the courts — told reporters that the agency’s actions were a “violation.” But then she was asked: If that’s so, why does the NYPD continue to arrest victims of trafficking?

Kluger, who now heads Sanctuary for Families, which offers services to trafficking court defendants, tried to bat the question away: “Well,” she said, “that’s a whole other issue.” Pressed, Kluger added that while she didn’t think they should be arrested, “You’d have to direct that to NYPD.”

A recent city criminal justice reform commission has, in fact, recommended that the state legislature remove prostitution laws from the books. At the time, Kluger responded to this announcement by claiming the human trafficking courts were “in essence decriminalizing prostitution offenses.” But that’s not the case: Without the NYPD’s prostitution arrests, the trafficking courts would be empty; there would be no defendants in the courts for ICE to so easily target.

Diversion Blog

by | Sep 22, 2018

September 18, 2018
Yale Global Health Justice Partnership (GHJP) released two complementary analyses on prostitution “diversion” programs (PDPs), one national in scope and the other focused specifically on New York City programing. The reports reveal that PDPs in the United States are radically varying, but share a common thread: across the board, PDPs operate contrary to their own claims of stopping the revolving door of criminalization and victimization of ostensibly “trafficked” or “exploited” people.

While PDPs position themselves as rehabilitative and compassionate alternatives to the criminal adjudication of prostitution offenses, initial findings presented in the reports suggest that, in reality, they are unable to fulfill their goals. Most do not offer sustained interventions capable of addressing the structural needs of sex workers, and all expand the coercive reach of penal institutions by enabling them to act as gatekeepers and managers of social services. Thus, the reports argue that PDPs often fail to divert people in the sex sector from the potential harms associated with criminal justice system involvement.

The NY-focused report is titled Un-Meetable Promises: Rhetoric and Reality in New York City’s Human Trafficking Intervention Courts.
Diversion from Justice presents an initial mapping, provisional taxonomy, and suggested evaluation framework for PDPs across the country from a health and rights perspective, while Un-Meetable Promises offers a deep dive on the genealogy, ideology, structure, and practices of a PDP in a single setting (in this case, the Human Trafficking Intervention Courts, or HTICs, of NYC).

“The Sex Workers Project welcomes the release of these reports,” said Jessica Peñaranda, Director of Movement Building at the Sex Workers Project and lead contributor to the report on the HTICs in NYC. “As an organization that directly serves individuals who engage in sex work by choice, circumstance or coercion, as well as survivors of human trafficking, some of whom have gone through the HTIC system, we know that state institutions continue to traumatize and harm communities every day through policing and criminalization. The approach of ‘diversion’ programs fails to understand and address root causes of poverty, vulnerabilities of marginalized communities, and cycles of state violence.”

Diversion from Justice and Un-Meetable Promises are products of a multi-year collaboration between the GHJP and the Sex Workers Project of the Urban Justice Center (SWP-UJC) in New York. The collaboration, supported by the Levi Strauss Foundation, sought to bring the resources of the academy to support NGOs working with marginalized communities. Originally focusing on the intersections of laws criminalizing prostitution and HIV, with the input of sex worker advocates, the joint project evolved to encompass the broader web of laws and criminal justice system practices impacting people in the sex sector.

As Alice Miller, Co-Director of the GHJP and lead contributor to both reports, explained, “In the course of these investigations with SWP-UJC into the frameworks around prostitution policing, it became clear that there was a pressing need for rights- and health-based attention to these newly emerging practices calling themselves ‘diversion.’ Our research revealed everyday injustices, as well as incoherence, arising from these locally-driven processes: scattershot surveillance tactics, troubling policing practices, and deeply subjective judicial responses to street-level prostitution and related low-level offenses — a shocking result, especially given that these processes claim to be alternatives to traditional CJS actions.”

Recent years have seen a burgeoning wave of enthusiasm for PDPs, which combine penal and therapeutic approaches to prostitution charges without changing its legal status as a criminal offense. Purportedly, the courts facilitate access to social services to help people avoid re-penalization and to support their ability to make significant life changes.

According to the authors, despite the booming interest in PDPs and unequivocal claims to positive impact, little is known by proponents and implementers about their actual benefits and risks, particularly with regards to the lives, rights and health of an already marginalized defendant population. Empirical information is not collected or available, and what little is known is insufficiently analyzed.
Given this informational and analytical gap, the publications were developed to stimulate greater public discussion and accountability of PDPs. Diversion from Justice reveals that while PDPs often use similar terms, local courts vary dramatically, making it difficult to understand their actual operations. The rhetorical language shared by PDPs and the opaqueness of individual programs triggers concerns about court overreach, disrespectful practices, limited benefits, and almost no engagement of the views of the persons most affected.

Both reports challenge the notion that PDPs – particularly court actors – can ethically and efficaciously deliver social services. The analyses sound the alarm over making access to services contingent on involvement in a coercive system that frames defendants as “victims” but treats them like criminals by conflating all sex sector activities with “trafficking.” These tensions point to one of the reports’ primary critiques and recommendations for reform: embedding social services in a criminal justice context enables an overreach by the courts as gatekeepers and managers of services, and mitigating immediate harms to sex workers requires shrinking (not expanding) the authority of the courts over defendants’ lives.

RJ Thompson, Esq., Managing Director of the SWP-UJC, emphasized that PDPs cannot fulfill their rehabilitative promises when the system itself is “rooted in white supremacist patriarchal capitalism where certain people are viewed as ‘criminal’ or needing rescue and some behaviors such as sex work are viewed as problems to be solved. This approach is deeply paternalistic. Sex work is valuable work that often benefits both workers and clients, yet it continues to be deeply stigmatized and sometimes violently policed and criminalized.” As such, the reports argue that real movement forward will require fundamental changes in state law and practice – i.e., the complete decriminalization of sex work and the development of alternative community-informed systems of accessing social services.

In the interim, the reports propose that some of the more immediate failures of the PDPs can be redressed, not by papering over the chasms, but with concrete shifts in practice and policy undertaken by key actors. By proposing a sharply retracted role for the courts and stronger mechanisms for public accountability, the reports suggest reforms that would minimize defendant contact with the criminal justice system and thereby, hopefully, reduce harms to sex workers as individuals and as communities. Only through more meaningful analysis and change of their practices can the courts serve their stated goals of treating all persons coming through their doors with the basic tenets of respect, dignity and personhood.
“We hope these reports expand the conversation and challenge stakeholders to think critically about how PDPs view and interact with sex workers and human trafficking survivors under the guise of support and services,” said Peñaranda.

The Yale Global Health Justice Partnership (GHJP) is a program hosted jointly by Yale Law School and Yale School of Public Health that tackles contemporary problems at the interface of global health, human rights, and social justice. The GHJP is pioneering an innovative, interdisciplinary field of scholarship, teaching, and practice, bringing together diverse leaders from academia, non-governmental, and community-based organizations to collaborate on research projects and the development of rights-based policies and programs to promote health justice.

Research for this report was supported by a grant from the Levi Strauss Foundation. This work is an initiative of the Gruber Project for Global Justice and Women’s Rights. Inquiries can be sent to Poonam Daryani at poonam.daryani@yale.edu.