Human Trafficking Courts Are Not a Criminal Justice “Innovation”

New York state’s
court system considers its Human Trafficking Intervention Courts—special courts sold as an alternative to jail for women facing prostitution charges—to be a national model
for such
programs. From Queens to Columbus, these courts share a common presumption:
that women engaged in sex work are, in the words of the judges on the bench, “victims, not criminals.” As former Judge
Judy Harris Kluger, one of the courts’ prominent advocates, once told
the New York City Council, “By and large, we work under the assumption
that anyone who’s charged with this kind of crime is trafficked in
some way.” But at the same time as the judges and other court staff tell women they are victims, they continue to criminalize them.

These courts and the marketing behind them are a perfect example of how what’s called “innovation” in criminal justice can perpetuate the same injustices that allegedly inspired reform in the first place. The human trafficking courts do this with a carceral feminist twist—as if the problem facing women pushed into the criminal justice system is that police, prisons, and prosecutors haven’t yet learned how to liberate them while also arresting them.

The trafficking court model caught some high-profile criticism this weekinThe New York Times, but sex workers have long opposed these programs, arguing they endanger their communities by using anti-prostitution policing to push them into stigmatizing or just plain ineffective social services, all in the name of saving them from sex work.

Though trafficking courts may now be subject to criticism from those who were once supportive of them—one social service organization serving Asian women, Womenkind, left the courts this year, the Times reports, “after deciding it was easier to build trust outside of the court system”—this is far from the first time they’vebeen scrutinized. 

The Red Umbrella Project (RedUP), a peer-led organization of
people engaged in the sex trades, released
in 2014 what was the first (and, for some years, the only) report
evaluating the human trafficking courts in New York. They found that in
Brooklyn and Queens, the people funneled into the courts reflected the racial
profiling police engage in with other arrests: 69 percent of defendants facing
prostitution charges in Brooklyn were black, and in Queens, 58 percent were
East Asian. They also pointed out that the “services” offered by these intervention courtswere inadequate to
help even someone who did want to leave sex work, while the arrests
revictimized the same people the courts said they were saving. 

Presenting the RedUP findings before the New York City Council in 2015, organizer Jenna Torres described how, after a prostitution arrest, she had to choose between her college education, caring for her young children, or showing up to the required sessions so she wouldn’t be arrested again. By the time she “successfully” completed the program, she said, she had dropped out of what would have been her first semester of school. 

Though these warnings received some
amount of coverage
at the time, there was little public response, if any, from the courts. They
stayed the course, with the then chief judge of New York state pitching the trafficking courts as a model to replicate nationally at a summit
alongside beer heiress and anti-trafficking crusader Cindy McCain and several anti–sex work groups. Several years later,
a team of researchers at Yale’s Global Health Justice Partnership issued a
report
on the trafficking courts, and it echoed what RedUP had found before: that the courts further harmed the people they claimed to help and failed to live up to their promises. 

“They don’t
actually know enough about what they are doing to say if they are succeeding or
failing,” Alice Miller, co-director of the GHJP and lead contributor to the
report, told
me at the time. Still, the courts have not responded with data of their own. (Nor, the Times reaffirmed in its reporting this week, does the state even collect data on what happens to the people who
go through the courts.)

“As long as over-policing of the poor along lines of race and gender, coupled with criminalization of buying and selling sex, are the context in which these courts operate,” the GHJP researchers concluded, “they cannot stop the revolving door of criminalization.”

You can see this
especially at play in how supporters of trafficking courts claim they represent
a new, compassionate way of looking at women in the sex trade. Take Judge Toko
Serita in Queens, featured in the Times story and the subject of a
recent documentary, after which Vogue deemed her court
“revolutionary.” In the Queens human trafficking court, her defendants are mostly immigrants, like Yang Song, who came
to the United States from China and landed in Flushing in 2013. It’s a
vibrant, urban neighborhood and, in recent years, the subject of police
crackdowns targeting one dense block of massage businesses. That’s where Yang
Song was arrested after an undercover sting in 2017. 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,” according
to a report from the Urban Institute and the Legal Aid
Society—all during the operation of Serita’s specialized court, where Song then
appeared.

In their first appearance
at this court, defendants are typically mandated to a half-dozen or more “sessions”
in a social service program, like Garden of Hope, an anti–domestic violence nonprofit
that now also serves victims of human trafficking. Through attending these
sessions and regularly reporting back to court in further appearances, defendants
are expected to demonstrate their progress and avoid future arrests. Over
the years I have reported on these courts, defendants, their attorneys, and
some service providers themselves have each pointed out the bitter irony that
the same people the courts regard as victims of a crime are judged as
rehabilitated based not on their own self-directed goals but on whether police arrest themagain in the future.

By that
standard, would the courts consider Yang Song a success or a failure? Days
before a scheduled court appearance before Serita, the New York Police Department again raided the
massage business where Yang Song worked. The police had allegedly called her “Jane
Doe Ponytail.” As officers rushed up the stairs, she fell from the window and to
the sidewalk below. Hours later, she was pronounced dead. She was 38 years old.  

Yang Song’s death shook the community of and around massage workers in Flushing, including some of the groups involved with the human trafficking courts. “There are people who we talked to on the street, and they are saying they would rather jump than be arrested,” Susan Liu, associate director of women’s services at Garden of Hope, said the week following Yang Song’s death. Her family would go on to tell my reporting partner, Emma Whitford, and me that she had phoned them once to say she had been sexually assaulted by a man claiming to be an undercover cop. “No matter why my sister fell from the building,” her brother Hai Song told us, “there were always threats and harassment from the police before the accident.” (Months after Song’s death, the Queens District Attorney found no fault with the NYPD.) 

The Times
correctly notes that the trafficking courts’ fate is tied up in the laws that criminalize sex workers: Without the laws and the ensuing vice enforcement, the
courts would have no one to rescue. This is the precise point made for years
now by sex workers’ rights advocates, including current and former sex workers,
from RedUP to new groups like Red Canary Song, who formed in the wake of Yang
Song’s death to organize massage workers in her neighborhood.

“The issue with
the courts is
that it incentivizes individuals, whether trafficked or not, to plea to
prostitution charges in exchange for much-needed services,” said Julie Xu, a volunteer organizer, and Esther K, the director of coalition building at Red Canary Song, in a statement to The New Republic. The courts can reinforce
the coercion they are supposed to interrupt by making help contingent on pleading
guilty and by using the threat of arrest or jail time as a tool for compliance.
Or, as Red Canary Song put it, “Criminalization and the distrust of police is the root cause
of human trafficking.”

Since Yang Song’s death and the resulting outcry from sex workers, their groups have found more political allies—such as former Queens DA candidate Tiffany Cabán,
who campaigned
in part on decriminalizing sex work (which would end the trafficking courts), and New York State Assembly member Ron Kim. He represents Flushing and last May announced
his endorsement of Cabán on the sidewalk, steps from where Yang Song fell.

Not only have the courts failed to
help sex workers, assembly member Kim told The New Republic after the Times story,
the courts “promote a false narrative of all of them being coerced against
their will and needing authorities to come in and rescue them—leading to
lucrative government contracts for third-party intermediaries.” He has worked closely with Red Canary Song and supports their
decriminalization efforts, including a state bill to decriminalize sex work he co-sponsored last year. To end the criminalization of sex work, he said, “would
place workers at the center of our policy-making.” That may also ensure prosecutors and judges are
held to account by the sex workers they have failed to help, all while using the trafficking courts as a platform to reform their own carceral image.