Analysis Law and Policy

Erasing Criminal Convictions for Survivors of Trafficking: One Step in the Right Direction

Juhu Thukral

Vacating convictions laws are a step in the right direction for survivors of trafficking. Ultimately, however, creating fair working conditions and ending abuses in low-wage industries will ultimately do far more to end trafficking in persons and protect the human rights of workers in vulnerable situations.

People get involved in sex work for all kinds of reasons, but most often, out of life circumstance and a need to support themselves and their families. This need to seek safety and security is universal, and it says something about how deeply felt it is, given the level of stigma sex workers endure as they do their work. Unfortunately, because so much of sex work is illegal, sex workers are constantly being arrested. This even applies to people who have engaged in sex work who were trafficked and coerced or threatened in some way.

Trafficking in persons is about people experiencing some level of force, fraud, or coercion in their work. This means they are living and working in a climate of fear. But because most people, including the police, have a very specific idea of who is a “victim” of trafficking, they often get it wrong and arrest people involved in sex work without asking or giving them a chance to say they have been forced or coerced. We have worked with people who are transgender and are survivors of trafficking, but have either been unable to report their experience to the police because they are too afraid from past experiences with police, or have faced ridicule or outright disbelief if they do report. Compare this experience to young cisgender women (the term “cisgender” refers to people whose present gender identity matches the sex/gender they were assigned at birth), who generally fit a more commonly understood idea of who is a victim of human trafficking, and are more likely to be believed if they do speak up.

The ideas that inform people’s beliefs about human trafficking, and ultimately determine whether they believe someone is a victim or not, often stem from stereotypes or misconceptions perpetuated by the media. Stereotypes include ideas about the gender of victims or what they look like, what their sexual or other histories are, and the kind of work they do. These misconceptions are compounded by people’s beliefs and fears about victimization, gender, and sexuality. But in order to craft workable solutions on trafficking, we need policies that actually prevent this terrible practice, and support victims in finding their own voice and seeking the help they want and need. Keeping people out of the criminal justice system is crucial, both because it cannot play the holistic and preventive role we need, and because it is itself a place where abuse takes place.

This issue of stereotypes and how they play out in the criminal justice system is so important because abuses of sex workers and trafficked persons often stem from these wrong stereotypes, and because current law and policy severely limit victims and survivors from getting the help they need unless police, judges, and gatekeeper service providers believe them. At the Sex Workers Project at the Urban Justice Center, we recognized that we could not necessarily address all the problems involved in the criminal justice system, but one thing we could do is ensure that people who are trafficked into sex work are not living with the consequences of these wrongful arrests. We and our allies pushed New York to become the first state in the country to enact a law that essentially erases—technically called vacating—criminal convictions for people who have been trafficked into sex work. This means that convictions will not stay on the record and hurt people’s chances of getting employment, housing, or immigration status. One of the important outcomes of having states pass these laws is that people who should not have been punished in the first place avoid the double punishment of the criminal penalty.

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The main goal of the vacating convictions law is to support survivors of trafficking in moving forward with their lives. In positive developments, many other states have followed New York in passing laws on vacating convictions for survivors of trafficking into sex work. These states include Maryland, Illinois, Vermont, and Nevada. Other states, including Pennsylvania, Hawaii, Wisconsin, Colorado, and California, are working on similar efforts. While this is definitely a positive step forward, it is important to make sure that these laws are actually effective in meeting the actual needs of victims and survivors.

These laws are quite complex, so it is important that people who are drafting and advocating for them actually understand the intricacies of how criminal justice procedure works, and how criminal convictions affect people in their day-to-day lives.

In order for such a law to be truly effective, we recommend that it have the following ten elements:

  1. Inclusion of prostitution and other offenses associated with the trafficking in vacatur remedy;
  2. “Official documentation” of trafficking creates a presumption but is not required;
  3. This remedy should not require the survivor to prove s/he has left the sex industry, is “rehabilitated,” or engaged in a social services program;
  4. Offer confidentiality provisions to protect the client’s identity;
  5. Be the most complete remedy possible under the law;
  6. State that the Court must vacate the convictions and dismiss the accusatory instrument if an individual meets the elements;
  7. Allow the Court to take additional appropriate action (beyond the mandate of the statute);
  8. Be retroactive and inclusive of those with older convictions;
  9. Ensure availability of the remedy by funding legal services attorneys to bring these motions; and
  10. Those truly concerned with limiting the devastating impact of criminal convictions should consider a remedy that includes all individuals with prostitution records.

While vacating convictions laws are a step in the right direction for survivors, and we encourage other states to enact similar laws, it is critical to remember that the criminal justice system is not the optimal place to be crafting anti-trafficking solutions. Creating fair working conditions and ending abuses in low-wage industries will ultimately do far more to end trafficking in persons and protect the human rights of workers in vulnerable situations.  

Commentary Race

No Sense in Slaughter: ‘Law and Order’ Policing Is About Irrational Fear

Katherine Cross

The wholesale murder of Black men and women by police strikes with a kind of caprice, often driven more by whims, bigotries, and disordered fates than any sense in law enforcement or anything meaningfully tied to the actions of the victims.

“Senseless” is our favorite adjective to describe not just mass killings but all manner of murders. To most any person, regardless of class, race, or station, there is no sense to be found in slaughter. But this depth of unreason plunges further still with some crimes. Such is the case with the mass murder of Black Americans, performed in increments measured by police shootings. No sense, logic, or order can be imposed on something so inherently chaotic, so without reason or purpose.

Yet, countless white people on social media and mass media alike try to find a reason for the murder. He wore a hoodie. She didn’t follow instructions. He didn’t drop the toy gun. He twitched his leg threateningly. They shouldn’t have been in that neighborhood. She was playing her music too loud. They should’ve fixed their taillight. This apparent desire for justification satisfies not only the racist conviction that it is somehow acceptable for a Black person to lay dead from an officer’s sidearm, but also the “just world hypothesis” that too many of us remain addicted to: the false belief in a world where virtue is rewarded and vice is punished, where “everything must happen for a reason.”

To be sure, racist systems of power in the United States have methodically propagated the idea of Blackness as a threat that needs to be controlled, which is a twisted kind of logic unto itself. In this environment, however, where so many—particularly white people—have been weaned on the notion of Black criminality, the wholesale murder of Black men and women by police strikes with a kind of caprice, often driven more by whims, bigotries, and disordered fates than any sense in law enforcement or anything meaningfully tied to the actions of the victims.

As we search for answers in the wake of atrocities—in Dallas, Baton Rouge, St. Paul, and countless other cities—we can begin with this senselessness.

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This attempted analytical strategy is not a new endeavor. In writing about Nazi internment and concentration camps, for example, philosopher and political theorist Hannah Arendt strove to do the unthinkable: Find sense in a pit of murderous chaos. But it was precisely a lack of sense, she discovered, that was key to the experience the Nazis—and many totalitarians before and since—had tried to create.

There’s no small irony in my invocation of her to understand this epic, continually unfolding crime. Arendt’s contempt of Black youth movements toward the end of her life was breathtaking in its bitter and intellectually uncurious contempt; she, too, had revealed herself to be an anti-Black racist. But like so many people who indulge such prejudices, her more transcendental ideas—such as this one—endure even with her failings.

As Arendt wrote:

The world of the dying, in which men are taught they are superfluous through a way of life in which punishment is meted out without connection with crime, in which exploitation is practiced without profit, and where work is performed without product, is a place where senselessness is daily produced anew. (Emphasis mine.)

Her point was that the terror of the camp lay in its disconnect from logic. You might face punishment even if you did nothing wrong, either according to the rules of the camp, or a higher moral authority. Your labors were Sisyphean, their own punishment, and rarely serving some higher end. Even when they were practical labors, they were deliberately inefficient, meant to cause suffering rather than ensure the speedy production of some good. For Arendt, this was central to totalitarian life.

This was how you made human beings superfluous as human beings, as she put it. You removed all sense from their lives, rendered their labors fruitless, took the very thing that makes us human—meaningful activity and life through our work—and rendered it an engine of vile nonsenses. If nothing you do has any connection to your prosperity or well-being, then what really is the point of life but random thrashing?

Whether Arendt herself might have approved of this understanding of her theory or not, the “daily production of senselessness” has bled out of the camps of Europe and into the day-to-day practices of police forces around the world, especially in the United States. In police brutality, too, we see a world of unreason. Death has no connection to guilt or what one can be meaningfully said to “deserve.”

This is what makes the plaintive wailing of the “All Lives Matter” crowd so tone-deaf, especially when they veer in the direction of critiquing every breath of those who have been restrained from breathing freely. Consider Megyn Kelly’s unconscionable second-guessing of Lavish “Diamond” Reynolds, Philando Castile’s girlfriend, for not rendering aid to her dying partner outside of St. Paul, even as a police officer brandished a gun in her direction. Or CNN analyst Harry Houck, who said that the very fact Reynolds filmed the atrocity is cause to doubt both the sincerity of her affection for Castile and the man’s innocence. Each of these perversities is, of course racist; neither would happen if the victims in question were not Black, period. They are also attempts to impose order on what is inherently chaotic and without sense: the summary execution of innocent people, en masse, by the people whose very job is to maintain that vaunted “law and order.”

The unspoken corollary to all these excuses is always “therefore they deserved to die.” They didn’t put their hands up fast enough, therefore they deserved to die. They ran, therefore they deserved to die. They were walking in the “wrong” neighborhood, therefore they deserved to die. They made a Facebook post where they had a “thug” selfie, therefore they deserved to die. On and on and on.

It is here where discourses about “respectability politics” come into play—the idea that we as marginalized people should not treat “acting respectable,” as defined by those in our society with the most cultural capital, as a path to acceptance and liberation. Castile did everything right. He was gainfully employed, beloved at the school where he worked as a cafeteria manager—and his long history of being stopped by the police testified more to the racism of local police departments than any wrongdoing on his part. During this final traffic stop, he politely informed the policeman about his concealed handgun, as he is obliged to do by law. For doing everything “right,” he ended up dead from several shots to the chest.

This is not to suggest that it would be “logical” or “just” or “sensible,” of course, if all Black victims of police brutality were only those people with criminal records, who resist arrest or run, or who had weapons; those people are not somehow more “deserving” of death or abuse. And even if they were the sole victims of police violence, a similar senselessness would prevail—in a world where a minor infraction or a long-ago served sentence would still lead to summary execution, where police who have been able to capture even dangerous white suspects alive can only ever seem to put bullets in Black “offenders.”

This, in the end, is the reason. Black people are killed indiscriminately, no matter their job, their level of education, their erudition, their politeness, their criminal record or lack thereof, and so on.

Black Lives Matter—for all the unjust slanders hurled its way by politicians, police union bosses, and Twitter trolls—is actually an example of a profoundly dignified attempt to restore order in the best way possible. Its tactics of peaceful but highly visible protest demand better of us all, non-Black people of color and white people alike. It summons us to our better ideals, calling for the restoration of sense, and reason: the simple recognition that Black lives matter and should be afforded the full suite of human and civil rights. That requires structural change; it is not something one law can fix. It’s beyond the scope of body cameras, certainly.

BLM’s staunchly nonviolent ethic, and its humane approach to police—which unequivocally condemns recent attacks on officers in Dallas and Baton Rouge, while seeking justice for the victims of police—actually makes a better claim to being about “order” than all the defensiveness of the police, and their many paid defenders in the press. “Law and order” politics and policing have always been about irrational fear and hatred, never about order in the sense of creating a safe life of sensible and predictable outcomes connected to one’s actions. The sole “logic” to be found in all of this is being seen as a mortal threat because of the color of one’s skin, and this fact produces a special kind of terror.

All victims have been rendered superfluous as human beings, to use Arendt’s phrase. Black individuals live knowing that all of their efforts can come to nothing due to the caprice of a racist police officer’s bullet.

With such senselessness ruling the day, is it any wonder some will abandon all reason in response, as with the killings of police officers in Dallas and in Baton Rouge? That some may feel murder is all that can meet murder? The problem is indeed a lack of order, but not for the reasons many police chiefs and white twitterpaters may think; the “order” police currently uphold is one of utter chaos with no rhyme or reason behind it, save the fundamental irrationalities of racism and fear tinged by racism. There can be no order when mothers and fathers must counsel their children in the nearly vain hope that “good behavior” might save their lives from a police officer frightened by the color of their skin, when no right action or a life well lived is any insurance against such an ignoble death.

So is it a surprise when “the law,” a term synonymous with the police themselves, is increasingly not respected for its own sake? As Ta-Nehisi Coates points out in the Atlantic about Micah Xavier Johnson, the man who murdered five police officers in Dallas:

In the black community, it’s the force they deploy, and not any higher American ideal, that gives police their power. This is obviously dangerous for those who are policed. Less appreciated is the danger illegitimacy ultimately poses to those who must do the policing. For if the law represents nothing but the greatest force, then it really is indistinguishable from any other street gang. And if the law is nothing but a gang, then it is certain that someone will resort to the kind of justice typically meted out to all other powers in the street.

When you scaremonger about Johnson’s crimes, or about the need for “law and order,” this is all very much worth remembering. To many in this country, the police are simply the legal gang: vice by another name, tied to the coffers of the state, with only a gloss of virtue to separate it from the illicit variety. The murder of police officers remains criminal and tragic, both for all the obvious reasons, and because the realm of unreason and uncertainty they create is slowly consuming them as well, as Coates notes.

This is one of many reasons we must cease casting about for a just world and instead seek to create one—first by acknowledging the lack of justice in the one we have.

Culture & Conversation Human Rights

Beyond Convictions: The Movement for Black Lives’ Strategy Is Systems-Wide

Rachel Anspach

Activists in the Movement for Black Lives seek to move away from the perception that Black Lives Matter is just about taking to the streets and calling for officer convictions following police shootings—and remind the public that their work is rooted in a far-reaching battle against the societal institutions that oppress and kill Black people.

Since police officer Darren Wilson killed Mike Brown in Ferguson on August 9, 2014, activists committed to the notion that Black lives matter have forced the public to face the realities of anti-Black police brutality in the United States. Through their organizing and uprisings, advocacy and analysis, we have learned the names and stories of many Black folks whose lives were unjustly stolen from their families by those sworn to serve and protect: Eric Garner, Rekia Boyd, Sandra Bland, Tamir Rice, and Tanisha Anderson, to name only a few.

Amid activist calls for officer accountability and widespread protests, police continue to harm and kill Black people while criminal charges against the responsible officers are dropped or never even filed. Just last week, the state dropped all charges remaining against three Baltimore police officers responsible for Freddie Gray’s death; this decision followed on the heels of the police killings of Alton Sterling and Philando Castile in early July. Police took another Black life Monday, when officers fatally shot 23-year-old Korryn Gaines—and injured her 5-year-old boy—after a SWAT team arrived at Gaines’ home to serve a warrant for failure to appear for a traffic citation.

Given the unrelenting stream of police brutality and impunity, activists in the Movement for Black Lives are fine-tuning and expanding their political strategies. They seek to move away from the perception that Black Lives Matter is just about taking to the streets and calling for officer convictions following police shootings—and remind the public that their work is rooted in a far-reaching battle against the societal institutions that oppress and kill Black people.

On a national level, the Movement for Black Lives delivered a challenge Monday through “A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice,” calling on the media, politicians, and the broader public to take note of the scope of their platform. The policy agenda—designed and endorsed by more than 50 organizations—includes demands for reparations; ending zero-tolerance education policies; immigration reform; and placing Black women, trans, and gender-nonconforming folks at the center of advocacy efforts.

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The agenda’s purview is much broader than police reform, but includes “demands to demilitarize police, to put community control over police in place, [and] to create real accountability between communities and police,” explained Color of Change Senior Campaign Director Scott Roberts, who is a member of the Movement for Black Lives Policy Table that brainstormed the material for the policy demands. “There is a big push to defund and divest from policing and invest in what I would call real solutions, which means investing in communities.”

According to Roberts, the agenda is critical because it counters “this narrative around what folks refer to as the Black Lives Matter movement, that folks don’t know what they want, that it’s just about protests, that people are just angry.” For politicians and journalists who are genuinely interested, it provides “the answer to the question of what this movement is about.”

Regardless of public perception, for organizers the movement has always been about more than police convictions. “Convictions have definitely been a focus of the movement. I mean, one of our chants has been ‘indict, convict, send that killer cop to jail,’” reflected Rachel Gilmer, chief of strategy for the Dream Defenders, who participated in the policy table with Roberts and others. “But the second half of that chant is ‘the whole damn system is guilty as hell.’”

For Black Youth Project 100 National Public Policy Chair Janae Bonsu—along with Gilmer and other movement leaders—part of the evolution of their goals for the movement has meant moving away from advocating for officer convictions altogether. “In the United States, the way our justice system is set up, the culture of punishment is so permeated,” explained Bonsu. “So when a cop has done something wrong, [convictions] are kind of just the knee-jerk response.”

Yet the U.S. culture of punishment is precisely what activists are striving to demolish. Many in the movement identify as abolitionists, who believe the prison system is an inherently unjust, racist institution that should be dismantled. “If we’re trying to work toward a world where our people are not arrested, convicted, and incarcerated, but rather looking to build other systems of accountability that center the people who were harmed, why would we advocate for incarceration and convictions of police officers?” asked Bonsu. “To do that would be—inadvertently or not—to perpetuate the system that we’re against.”

Activists agree that while individual officer accountability is important, it does not need to look like criminal proceedings. In a movement that actively centers victims and their families, framing justice as a conviction often leads families down a dead-end road. Closure and accountability can better be garnered from deeper-seated institutional goals, according to organizers.

Alternative forms of accountability proposed by the activists Rewire spoke to include pushing for officers to be fired; requiring officers to have personal liability insurance to cover civil settlements; taking funds for civil settlements directly out of the police budget; targeting police unions, contracts, and pensions; and establishing powerful civilian review boards. In addition to individual accountability, activists believe that systemic change is needed to defund and demilitarize police. Public resources currently dedicated to police forces should instead be invested in Black communities and local strategies for safety and justice.

The pathways to achieve these changes are still being developed by activists at multiple levels—in community meetings, cubicles, and courtrooms. While recognizing the critical role that public uprisings have played in this movement so far, Gilmer and other activists are actively working to expand the movement’s organizing focus. “Our movement has a systemic analysis, but we need a clearer strategy for how to advance institutional change,” said Gilmer. “We need innovative new tactics. We’re really good at rapid response and getting people out in the street. That’s awesome, but we also need to pivot toward deep community building, and we need to do the unglamorous work of organizing—knocking on doors, talking to people, bringing more people into the movement.”

Activists have been working within communities to realize alternative visions of justice and safety since far before Mike Brown’s death. Mainstream media, however, often ignore these efforts. “The focus of organizers has been building power bases, [increasing] political education around systemic violence/oppression, and crafting policy solutions that radically reimagine our systems of democracy, economy, and justice,” said Mychal Denzel Smith, writer for The Nation and author of Invisible Man, Got the Whole World Watching. “It’s more a matter of whether the same media that was interested in covering the tanks and tear gas will offer the same amount of camera time and ink to the ways organizers are making change.”

Organizers have forged alternatives to the criminal justice system, including the Audre Lorde Project’s Safe OUTside the System campaign to protect trans and gender-nonconforming community members in Brooklyn and Mothers Against Senseless Killings, who de-escalate conflicts in the Englewood neighborhood on Chicago’s South Side to combat community violence and police involvement.

At the national and local levels, activists are doing the often-unrecognized work to develop their vision for a just society, and bring that vision into praxis. The movement for Black liberation calls on U.S. society to embrace the humanity of people forced to build this country while classified as property, a burden that ideally would fall on the shoulders of those in power. Yet, as activists recognize, the beneficiaries of white supremacy are not likely to relinquish their privileges without outside pressure. In this struggle, as Smith reminds us, “movement politics are where they should be.” This nascent movement continues to develop its goals and strategies—but their commitment to center those most marginalized in the battle against the systems waging war on Black America remains steadfast.

“We have to keep in mind that this current iteration of the Black liberation movement is still in its infancy,” Smith continued. “But the work is being done.”

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