Human Trafficking Intervention Courts: The softer side of state control and the risks of incrementalism in criminal justice reform.  

For the past year, I have been working with a team of legal and social service providers on a federally funded initiative to coordinate services for survivors of “severe, domestic human trafficking.” We have been focusing on individuals who are arrested for prostitution in New York City. Like many people, who may even understand a lot about the criminal justice system, the prosecution of prostitution and related offenses was not something I was familiar with prior to this project.

The sex trade has a long policy history, and is inextricably bound up with gender norms and economic inequality. And while there are absolutely no simple, or perhaps, even satisfactory, solutions, thinking about this issue illuminates more deeply so many of the challenges in the policymaking process, and the high stakes for those involved. The changing policies and practices surrounding sex work in the New York City showcase the value of the incremental approach to criminal justice policy reform, and raise some critical questions going forward.

First, an overview. In the United States, with the small exception of a few rural counties in Nevada (and a few recent years in Rhode Island), prostitution is illegal. The law varies from state to state, but it is generally a misdemeanor of some class for both the buyer and the seller, with some states pressing an escalating charge depending upon the number of convictions. In most jurisdictions more prostitutes than clients of prostitutes are arrested and processed.  

In recent years, in response to international concern over sex trafficking, federal and state laws and programs have been designed specifically to address trafficking. However, because many people who have been trafficked do not identify as “trafficking victims” the implementation of these laws has been necessarily broad to capture the desired target, consequently these courts govern people who have never experienced trafficking, and who may have experienced other forms of trauma or coerced work. For example in NYC, most people arrested for prostitution will fall under the jurisdiction of the Human Trafficking Intervention Courts (HTIC).

In 2014, New York set up the Human Trafficking Intervention Courts, which like many policy innovations are threatening to become a model for other jurisdictions. In these courts, people arrested for prostitution are offered mandated services instead of incarceration and fines, and the opportunity to have their records sealed upon successful completion of the services. This is a middle of the system (front end, think policing, back end, re-entry) incremental change, which for some eliminates incarceration, while maintaining, and in most cases prolonging, court supervision.

It seems intuitive that eliminating jail time and increasing services for people involved in the sex trade is an unmitigated good. But this intuition fails to factor in the opportunity costs of continuing a carceral approach to the sex trade, and the profound impact that framing women as victims, while simultaneously removing choice, has on their lives.  

The trauma and disruption of arrest, incarceration, and court appearances can lead to loss of employment, housing, and education, three things that people need in order to survive and thrive. That is true of any offense, but for sex workers the added stigma of being labeled a prostitute or even human trafficking victim adds an additional burden. An incredibly thorough explication of the tensions between service and punishment in the HTIC is laid out in the forthcoming Gruber, Cohen, and Mogulescu article, “An Experiment in Penal Welfare: the New Human Trafficking Intervention Courts.” Analysis of the current incremental approach to reform, that continues to put sex workers through the court system, begs the question: Is it possible to connect people with services they need and desire without first putting them through the court system?

As policy people who strive for social justice, we are forever trying to design and implement systems that address current and past oppression. As part of that we recognize the need to give additional supports to people so they may enjoy a similar level of success to others, while simultaneously keeping policies out of the way of their own self-efficacy.  

Some people believe that sex work is never a choice, that the very nature of our patriarchal capitalist society is to deny agency in this context specifically to women. For them, prostitution should be abolished and the purchasers of sex should be prosecuted as criminals. Others believe that sex work should be regulated like any other work, and in this way working conditions could be improved. While there is a lot of dispute over whether or not prostitution should be illegal in the US, there is a strong consensus that arresting, prosecuting, and incarcerating sex workers has no value for them or for others.  

Looking at a wide array of articles published by current and former sex workers, I was struck by how policy focused they were, and how uniformly they favor decriminalization. A particularly stellar work in this field is the recent study published by the Red Umbrella Project in NYC, Criminal, Victim, or Worker: NY HTIC’s impact on people in the sex trades.” 

As much as we have to face the reality of where we are now with respect to the global sex trade, we can also be circumspect about how we pull the policy threads that can ensnare vulnerable people in state mandated welfare and supervision, while doing very little to ameliorate the conditions that so dramatically affect their lives. One perspective on facing reality says you have to work with the systems in place, and with the culture that is available. Another, might suggest that real change can only come from outside those systems with a broader cultural reimagining.  While it seems that it can take decades to steer the policy ship, it is all the more vitally important to set the right course.  

In this post, I explored some of the pros and cons of the incremental approach to reform being taken in NYC. In future posts, I will look at what the implications of a more radical approach might be, and discuss strategies for involving impacted people in the policy development process.