Penal Welfare and the New Human Trafficking Intervention Courts

Abstract

In the fall of 2013, New York State's Chief Judge, Jonathan Lippman, announced a "revolutionary" statewide initiative to create Human Trafficking Intervention Courts (HTICs). The initiative occurred amidst a burgeoning consensus that prostitution is human trafficking and women who engage in prostitution are largely victims of exploitation and violence. Given the HTICs' ambition to, in Lippman's words, "eradicate the epidemic of human trafficking," and the convergent view of prostitution as trafficking, one might think the HTICs are courts that prosecute traffickers, where victim-witnesses enjoy special protections. In fact, the HTICs are criminal diversion courts where mostly female defendants are prosecuted for prostitution offenses but offered mandated services in lieu of criminal conviction and jail. The HTICs are thus a puzzle. Why have so many commentators heralded them as the model approach to prostitution/trafficking when they involve the arrest, prosecution, and even incarceration of prostitution defendants, who are presumed to be victims? A key piece of this puzzle is a phenomenon we call "penal welfare," that is, states' growing practice of using criminal courts to provide social services and benefits. In an era in which "mass incarceration" is a familiar term and tough-on-crime and broken windows ideologies are falling into disfavor, penal welfare enables entrenched institutions of criminal law to continue to function despite a growing crisis in public confidence. Based on a qualitative empirical study of the HTICs, we caution that because of their welfarist bent, the courts may sustain arrests and prosecutions of the presumptively victimized women they seek to protect, stunt the development of alternate forms of assistance and resources, and reinforce stigmatizing ideologies and discourses.

Community-Based Responses to Negative Health Impacts of Sexual Humanitarian Anti-Trafficking Policies and the Criminalization of Sex Work and Migration in the US

“…A large portion of fieldwork in NYC was conducted in the Human Traffic Intervention Courts (HTICs) established in 2013 to divert "victim-defendants" from jail to social services (Gruber et al 2016;Mogulescu 2011). In HTICs, people charged with prostitution-related misdemeanors are mandated to complete approximately 5-6 social service sessions in the form of, for example, trauma-based psychotherapy, group therapy, art therapy, life skills workshops, or yoga (Ray and Caterine 2014; Yale Global Health Justice Partnership 2018).…”

“…2 Within an environment of extreme "bordering" (Yuval-Davis et al 2019), sex workers and migrants' access to information and communication is also constrained. Moreover, people viewed by authorities as potential victims of sex trafficking (e.g., all sex workers due to the problematic conflation of sex work and sex trafficking outlined above) are vulnerable to interventions that blur the boundaries between protection and punishment and state and non-state authority (Musto 2016;Gruber et al 2016).…”

“…These shifts include but are not limited to the passage of SESTA/FOSTA, the repeal of the DREAM Act for childhood arrivals, the separation of families at borders, and heightened surveillance by Immigration and Customs Enforcement (ICE) in courts and schools. women) charged with prostitution not as petty offenders, but victims of domestic violence and trafficking (Gruber et al 2016). Since 2013 the HTICs have evolved and the courts, together with a network of non-profit organizations, deliver a range of mandatory sessions that serve as preconditions for obtaining an adjournment for contemplation of dismissal (ACD).…”

Transgender People and Human Trafficking: Intersectional Exclusion of Transgender Migrants and People of Color from Anti-trafficking Protection in the United States

“…For instance, in both NYC and LA, cis women viewed by authorities as trafficking victims are subject to arrests, which function as a catalyst for court supervision and referral to mandated social services (Musto, 2016). These trends are reflective of forms of "penal welfare" and "carceral protection," in which people seen as trafficked are called victims but de facto treated as offenders as a precondition for receiving social services or legal support (Gruber, Cohen, & Mogulescu, 2016;Musto, 2016). Instead of providing meaningful state relief from discrimination and violence, sexual humanitarian discourses and their corresponding penal and social service anti-trafficking responses contribute to trans individuals' "unfreedom" and exclusion (Balaguera, 2018).…”

“…Ethnographic observations were conducted weekly throughout the fieldwork period in sex work venues and organizing spaces, diversion courts and programs, anti-trafficking collaborations between non-governmental organizations and law enforcement, and other strategic settings and events for sex workers or trafficked persons. A large portion of fieldwork in NYC was conducted in the Human Traffic Intervention Courts (HTICs) established in 2013 to divert "victim-defendants" from jail to social services (Gruber et al, 2016;Mogulescu, 2011;Ray & Caterine, 2014). In LA, HTICs do not exist, but Law Enforcement Assisted Diversion (LEAD) programs are overseen by the LA County Sheriff's Department Human Trafficking Bureau.…”