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Anti-Backpage Law Not Yet Enacted, But the Crackdown on Sex Workers Has Already Begun

Anti-Backpage Law Not Yet Enacted, But the Crackdown on Sex Workers Has Already Begun

On Friday, April 6, the same day that Congress sent FOSTA — the Allow States and Victims to Fight Online Sex Trafficking Act — to President Donald Trump for his signature, the Department of Justice seized, the website FOSTA was meant to take down. After weeks of arguments about why this legislation was necessary to attack sites hosting sex work ads, it turned out the government could target Backpage without it.

Before the Senate had finished its vote on FOSTA on March 21, its co-sponsors gathered for a press conference, livestreamed by the Senate GOP. “We had a big victory,” began Senator Rob Portman (R-OH). “We now have the ability to go after these websites that are exploiting women and children online.” A few minutes later, an adult model named Brie Taylor said she was trying to access, a website that hosted sex work-related ads. “I was flagging an ad with my pics in it,” she tweeted, “…and then the site was gone.”

That advertising site is still offline — along with Craigslist’s entire Personals section, and the ad sections of several lesser-known websites. But the big news came Friday afternoon, when Backpage had its homepage replaced with a notice stating, “ and affiliated websites have been seized as part of enforcement action by the Federal Bureau of Investigation, the U.S. Postal Inspection Service, and the Internal Revenue Service Criminal Investigation Division.”

Groups that had long been mobilizing against Backpage, like the anti-sex work lobby group Coalition Against Trafficking in Women (CATW) and the religious right group National Center on Sexual Exploitation (NCOSE) have celebrated the takedowns. FOSTA is not yet in effect, but in demanding the law, its supporters have already created a political environment more favorable to such law enforcement actions.

FOSTA, as advocates warned, offered a symbolic win against Backpage that went beyond a legislative victory for people who have been trafficked. “It seems to me that a lot of FOSTA’s supporters simply want Backpage to be unprotected, period,” Alexandra Levy, adjunct professor of law at Notre Dame Law School, where she teaches about human trafficking, told The Appeal. “And FOSTA is indeed necessary if that’s your goal.”

At least one of FOSTA’s authors acknowledged that link explicitly. Though the bill is not yet signed, Representative Mimi Walters (R-CA) tweeted Friday, “Thanks to #FOSTA with my #SESTA Amendment, the Department of Justice has seized and affiliated websites that have knowingly facilitated the sale of underage minors for commercial sex.”

Supporters of the legislation pitched FOSTA, along with the original bill that inspired it, SESTA (the Stop Enabling Sex Trafficking Act), as a tool to fight trafficking by making it easier for victims to file civil suits. Backpage’s alleged involvement in trafficking was also the subject of a 2017 Senate investigation, which sparked this legislation. But despite claims about the site, the seven Backpage owners and staff named in this week’s indictment have not been charged with trafficking. Rather, they face the same charges — money laundering, violation of the Travel Act for facilitating prostitution — already used against the sex work sites and in recent years.

By the time FOSTA came to a Senate vote in March, the tech companies that opposed it on free speech grounds had largely backed off. The remaining opposition came from those who stood to lose the most from the legislation: sex workers themselves. The disappearance of ad sites like Backpage is what sex workers’ rights advocates had feared. They argued that the sites helped them stay safe by allowing them to screen clients and avoid more dangerous situations — a form of harm reduction, as they described it — though those concerns went unheard in Congress. Now “people are angry, terrified and panicked,” Lola, a community organizer with Survivors Against SESTA, a newly formed campaign for sex worker rights’ advocates, told The Appeal.

Since the Senate vote, the group has collected reports from sex workers about websites that have shut down or changed their terms of service so as to exclude sex workers. “Some of the content that’s getting removed is livelihood-related,” she said. “Some of the content is activism-related.” At the same time, the anti-Backpage group NCOSE is keeping its own tally of site takedowns, celebrating them on Twitter. A CATW policy adviser and former staffer in the State Department’s Office to Monitor and Combat Trafficking in Persons tweeted “#SESTA impact” and an image of a 2009 Israeli air force bombing of Gaza.

As these groups claim victory for FOSTA’s passage — and still fundraise based on it — much about the actual enforcement of FOSTA remains uncertain. What is clear is that the ad platforms sex workers rely on for income are going offline. And that leaves sex workers desperately trying to figure out how to respond — and how to survive.

FOSTA, the bill that passed both the House and Senate, is expected to be signed by Trump. (The bill known as SESTA is essentially dead, though elements of it were included in FOSTA.) FOSTA amends both the Mann Act, a 1910 law concerning what was called at the time “white slavery,” and the Communications Act, to allow state attorneys general and victims of trafficking to take legal action against website operators for “the intent to promote or facilitate the prostitution of another person.”

“Facilitating” prostitution, however, could cover a very broad set of activities. SESTA co-sponsor Senator Richard Blumenthal (D-CT), in a floor speech before the Senate vote in March, said the legislation before them “would not criminalize so-called ‘harm reduction’ communication.” But that’s far from a guarantee, critics say, since we don’t know how prosecutors might try to make these “facilitating” cases. There’s also no guarantee a site sex workers use to exchange “bad date” lists or other health and safety information couldn’t also be exploited by traffickers and thus be vulnerable to lawsuits.

In the weeks after the FOSTA vote but before the law has gone into effect, two cases against Backpage advanced in courts in Massachusetts and in Florida. Ironically, these are the kinds of lawsuits, charging Backpage with trafficking, that FOSTA’s supporters said would be impossible without changing the law. The Massachusetts case may provide a glimpse into the legal problem FOSTA was supposed to solve. In that case, a judge ruled that since one plaintiff showed evidence Backpage had altered an ad she was featured in, her case against the company could proceed.

“This result shows that even the slightest bit of evidence that Backpage creates ads for trafficking victims will allow those victims to have their day in court,” said Levy of Notre Dame Law School. The existing law targeted by FOSTA, Section 230 of the Communications Decency Act, said Levy, “doesn’t offer protection to any traffickers, including websites, and this case demonstrates that fact.”

While it’s impossible to predict how FOSTA will be enforced, said Levy, “it doesn’t even matter that much, because uncertainty does most of the heavy lifting when it comes to chilling speech. Nothing is as destabilizing as confusion in this context…. no one can honestly assure people that they won’t be on the hook.”

Backpage was a clear target, but before it was taken offline, more than a dozen other ad platforms had been taken down by their owners since the Senate vote on March 21. All of this is contributing to the panic sex workers are reporting. These takedowns are about how different owners of different sites and platforms interpret a law that has yet to be enforced, and many of those owners are making those calls without notice.

The same week as the Senate vote, some sex workers began reporting that their content was vanishing from Google Drive — not only content related to doing sex work, but educational materials intended for the general public. “The actions tech platforms have taken on individual accounts can be so isolating — they’re hard to prove,” Lola from Survivors Against SESTA said. “They come without warning. Sites like Google are denying that they’re SESTA/FOSTA-related.” (A Google spokesperson told The Guardian in March, “Google is aware of the new legislation and we are reviewing it, but we haven’t reached a state where there are any proposed changes.”)

At least one site made an effort to communicate its new content rules, which provides an indication of how site owners are making these decisions. Alex Empire, a sex worker who moderates the r/SexWorkers subreddit, said she received a message from Reddit advising her that “any posts that could facilitate the connection of sex sellers and sex buyers would be a violation.” Empire briefly closed the group to the public, but it is active again, featuring discussions like “New podcast episode about sex work, stigma, and the State” and “6 Sex Workers Explain How Sharing Client Lists Saves Lives.” But that’s not the norm, said Lola, when it comes most of the takedowns she and other advocates have seen.

The consequence is that sex workers are left to fend for themselves. For some of the sex workers interviewed by The Appeal, that has meant scrubbing any mention of sex work from their online profiles; for others, it’s meant deleting much of their web history altogether. Some have opted to use platforms hosted outside the United States.

But even that is no guarantee. Elliot Harmon, activist at the Electronic Frontier Foundation, said taking content outside the U.S. isn’t necessarily a solution. “If I operate a message board that puts me at risk of prosecution under SESTA/FOSTA and I move that message board to a hosting platform outside of the U.S., I may still be at risk,” Harmon said. Right now, he added, there are no easy answers. “Be leery of anyone claiming to have a solution for everyone,” Harmon said“Talk to a lawyer.”

Kate D’Adamo, a partner with Reframe Health and Justice, was one of the advocates who predicted the current fallout. “I didn’t want to be right,” she told The Appeal this week. As the bills moved closer to a vote, D’Adamo and other sex worker rights advocates sounded the alarm. “I had moments of feeling like Chicken Little over and over,” she said. “Lawyers who supported the bill, like Mary Mazzio [director of anti-Backpage documentary I Am Jane Doe], and tech advocates opposing it kept telling me I was wrong and wouldn’t budge.”

D’Adamo continued, “But that’s the same social gaslighting that makes legislation like this, which says you can just pull yourself out of chronic, generational poverty if you work hard enough or only people with something to hide avoid police.” FOSTA claims to be anti-trafficking legislation, but it doesn’t attack trafficking, she added. It attacks websites, and those who use them.

With or without Backpage — or FOSTA — sex workers aren’t going offline. “Sex workers will know how to survive this,” D’Adamo said. “But sex workers also know that it’s going to hurt for a while and we’ll lose folks along the way.”

Cascade of Overturned Cases May Emerge In Wake of Philly DA’s ‘Bad Cop’ List

The shadows of Philadelphia Police officers
Corey Perrine / Getty Images

Cascade of Overturned Cases May Emerge In Wake of Philly DA’s ‘Bad Cop’ List

In 2012, Gilbert Narvaez was convicted on drug-dealing charges and sent to a Pennsylvania prison for a three- to eight-year sentence. Narvaez maintained his innocence and argued that he was the victim of a bad cop named Christopher Hulmes, who claimed that in 2011 he had seen Narvaez in Philadelphia’s Fairhill neighborhood peddling narcotics.

“He was just standing on the corner,” said Narvaez’s lawyer, Christopher Jay Evarts. Narvaez told the Philadelphia City Paper that he bumped into a friend, who he suggested was likely dealing drugs, and stopped to chat. But the word of a young man with a rap sheet, who has admitted to drug dealing in the past, didn’t hold up against an officer with the Philadelphia Police Department.

Unbeknownst to Narvaez at the time of his conviction, however, Hulmes had openly admitted to committing perjury in an unrelated case in 2011. This should have caused the officer to be criminally charged and banned from providing testimony in court. But the Philadelphia Police Department allowed Hulmes to continue making arrests, and the district attorney at the time, Seth Williams, who is now serving a five-year federal prison sentence for accepting a bribe from a local businessman, continued to call him to the witness stand. A 2014 investigation in City Paper (now defunct) exposed the perjury incident, and ultimately Hulmes was forced to resign but spared a criminal conviction.

After Hulmes’s perjury was revealed, Narvaez’s lawyer petitioned the court to have his client’s conviction thrown out. On May 14, 2015, Narvaez’s conviction was overturned. But during Narvaez’s more than two years of imprisonment, he missed his baby daughter grow into a toddler — he will never get that time back.

Narvaez’s case is one of over a hundred cases involving Officer Hulmes that have been thrown out by Philadelphia courts since 2014, according to Bradley Bridge, the attorney in charge of police misconduct at the Defender Association of Philadelphia. And there could be more, Bridge said, because his office is still in the process of unraveling Hulmes’s dubious legacy.

The discovery of one bad cop, especially if their misdeeds were known by prosecutors yet hidden from defense attorneys, can result in a cascade of dismissed cases. In December, Deborah Katz Levi, the head of the Baltimore City Public Defender Special Litigation Section, said that she identified 2,000 cases that she described as “irreparably tainted” because of their connection to the corrupt Baltimore Police Department’s Gun Trace Task Force which saw eight of its nine members indicted in federal court (six later entered guilty pleas and two were convicted at trial).

In Philadelphia, the previous district attorney, Williams, did little to root out police misconduct. But in January, Larry Krasner, a long-time civil rights attorney, was sworn in as the city’s new DA after a campaign in which he promised major criminal justice reforms, including tackling police misconduct. Krasner’s promises, however, face a significant challenge: a police disciplinary system that rarely punishes officers for misconduct that has allowed a large number of cops with questionable records to continue to make arrests, about which they ultimately may have to testify in court.

The scope of Krasner’s challenge was highlighted last month when, under court order, he released a “do not call” list, compiled by Williams’s office, comprising 66 officers who the Police Board of Inquiry said had committed misconduct, including brutality, drinking on duty, and lying to investigators. The “do not call” list was compiled in March 2017 by top aides to former DA Williams. Of those who have been publicly named, only one is still working in the DA’s office, according to the Philadelphia Inquirer. About half of the officers on the list appear to still be on the force; nine are on active duty and collectively made 41 arrests last year. In the past five years, the 29 officers restricted from taking the witness stand have made more than 800 arrests.

In reality, the “do not call” list is a misnomer: The list either instructed prosecutors to seek a top official’s approval before allowing 29 officers to take the stand, or, in the case of other listed officers, to allow them to testify but disclose their record to defense attorneys, or for the prosecutor to simply be aware of the misconduct. Instead of barring the 29 officers from taking the stand, prosecutors simply dismissed cases to ensure that the officers did not do so, according to the Inquirer. Yet there are “thousands” of possible cases involving officers on the entire list, says Bridge. He and his colleagues are in the process of reviewing them, and potentially asking that they be thrown out.

Officer Hulmes, however, was not on the list. This is likely because Williams limited it to officers with recent misconduct findings. Neither were any of the six Narcotics Field Unit officers charged and later acquitted in federal court in 2015 in a high-profile corruption and brutality case — save for one, Michael Spicer. Over 1,000 cases involving these cops — as well as a seventh officer, Jeffrey Walker, who pleaded guilty in federal court to robbing a drug dealer and testified against his former colleagues — have been thrown out since Bridge started filing petitions to have cases that depended on these officers’ testimony tossed in 2015. The “do not call” list, then, represents just the tip of the iceberg of police misconduct in Philadelphia. When the entirety of the problem is fully exposed, the number of convictions subject to dismissal could become enormous.

By law, prosecutors are required to disclose all evidence that might be favorable to a defendant under the “Brady rule,” named after a 1963 Supreme Court case that enshrined this obligation, Brady v. Maryland. This includes information that the DA has on any arresting or testifying officers’ history of infractions that may undermine their credibility as a witness. Perhaps the most high-profile case of police misconduct in Philadelphia involves the rapper Meek Mill, or Robert Williams, who has most recently been jailed since Nov. 6, 2017 for violating the terms of his probation, which stemmed from his conviction on charges following a controversial 2007 drug and gun arrest by Reginald Graham, an officer who was on the “do not call” list. Mill has violated probation several times over the years, first in 2011 for opioid use. This is the second time he has been jailed for breaking the rules of probation. In a March 14 response to Williams’s Motion for Stay and Bail Pending Consideration For Post Conviction Relief, Krasner’s office admitted that “[A]t some point prior to 2018, the Commonwealth because aware of some issues or conduct bearing on the credibility of Officer Graham, yet there is no indication this material was timely given to the Court or Petitioner.”

Similarly, Bridge argues that prosecutors violated the Brady rule years ago, when Hulmes’ perjury was disclosed in 2011. “It was incumbent on the prosecutor to either nolle pros all subsequent cases, or at a minimum to notify the defense,” he said.

Indeed, the entire “do not call” list should have been made available to defense attorneys, said Philadelphia-based civil rights attorney David Rudovsky, who specializes in police misconduct. Even if prosecutors didn’t allow the 29 “do not call” officers to take the stand, the 37 on the list who were not restricted from testifying were still found to have committed misconduct. “We don’t know the extent of it, but for sure there were a category of cases where the DA knew we had a problematic police officer and [the DA] called him anyway,” Rudovsky said.

Ironically, Williams’s “do not call” list was a belated effort to deal with the mounting issue of police misconduct. For years, it was difficult to determine what a cop could do to get taken off the street or criminally charged. In 2010, Philadelphia police officer Eric Burke developed a reputation for stomping on civilians’ heads. In a rare move, Internal Affairs sustained excessive force findings against Burke but his punishment was merely a written “reprimand.” Burke left the force in May 2016 for reasons that the police department declined to specify. In 2015, the six narcotics officers in the Narcotics Field Unit scandal were reinstated through arbitration after being acquitted in federal court of charges related to allegations that they had systematically beaten and robbed drug suspects. In 2016, Officer Hulmes, exposed for committing and admitting to perjury, avoided prosecution by agreeing to a pretrial diversion program and agreeing to never try to re-enter the force.

So, the creation of the “do not call” list was a make-do solution to police misconduct that failed to get at the heart of the problem and only compounded the Brady issues related to the list. As civil rights attorney Rudovsky noted, the list should have been shared with defense attorneys in pretrial discovery.

Krasner’s office is still determining its procedures regarding the disclosure of information about police misconduct to defense attorneys. “We are currently hard at work at disclosing more information and trying to have a solid system for gathering, storing and providing information that rises to the level of Brady about police,” Krasner told The Appeal. His spokesperson, Ben Waxman, said the office will have an upgraded “do not call list” by mid-May.

Still, Krasner’s office is in a bind: If a broken police department disciplinary system keeps putting bad cops back on the street, those officers could make arrests and their testimony might then be necessary in criminal trials. The DA’s office, after all, does not control the police department.

There are, however, concrete actions that Krasner’s office could take. One would be ensuring his office has access to Internal Affairs investigations and findings, as well as to decisions made by the Police Board of Inquiry, and a system within the DA’s office to make use of that information. Another possibility is “open-file discovery,” which provides defense attorneys access to prosecutors’ case files. As it stands, prosecutors privately make the decision of what evidence must be turned over pursuant to Brady — and thus fail to disclose a lot, as evidenced by the “do not call” list having been kept secret. Krasner can also prosecute police when they commit crimes, something that has been rare in the past.

“You can provide much needed support to reform police commissioners who want the system to be right,” Krasner said, “but who have been undermined by local prosecutors more interested in pandering to the police union for their own political ambitions than interested in having the police department be trusted and integrous. Another thing you can do is charge police officers who commit a crime instead of looking the other way.”

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As Reform Stalls in New York, Defendants Plead Out Because They Can’t Afford Cash Bail

As Reform Stalls in New York, Defendants Plead Out Because They Can’t Afford Cash Bail

At the beginning of the year, New York Governor Andrew Cuomo laid out a plan that would eliminate cash bail for those charged with misdemeanors and nonviolent felonies. Last week, however, his plan stalled out during budget negotiations with state legislative leaders. For bail reform advocates, including public defenders and advocates for incarcerated people, the plan’s failure serves as a bitter reminder of how difficult it is to eliminate cash bail, despite overwhelming support to do so.

In the month leading up to budget negotiations, advocates organized a series of rallies highlighting the cascading consequences of cash bail, from plea deals taken by innocent defendants who can’t afford to wait for a trial, to dangerously crowded jails filled with those who didn’t have enough money to purchase their freedom. So, the Legal Aid Society, a New York City-based not-for-profit organization providing free legal services to low-income individuals and families, has been collecting stories of defendants held on cash bail who have taken plea deals even while they maintain their innocence so that they can be released from jail.

“The courts put you in a circumstance where the offer they’ll put before you, weather [sic] evidence proves you innocent or not, will be an offer that automatically allows you to once more be free to return back to your family & loved ones,” wrote one defendant, identified as W.F., who took a plea deal in 2017, in a letter provided to The Appeal by Legal Aid.

“So for that you’ll just bite the bullet & go with the best offer for a plea of guilty, even if knowing your [sic]innocent.”

W.F. further explained his predicament — “I’m a father of 4, an[d] only collect SSI Disability,” and that, with a bail set at $25,000, “there’s no way I could afford to take that money out of my kid’s mouth and still consider myself a decent man who will put his kids & their well-being first.”

W.F.’s story is indicative of a system that punishes the poor and favors prosecutors at every turn. Without using high cash bail as leverage, prosecutors would have to take many more cases to trial — more than 98 percent of felony arrests that end in convictions occur through a guilty plea, not a trial — and be obligated to provide tangible evidence against defendants.

“While I was fighting my case, I felt like I never had a chance,” wrote R.I., a defendant whose family raised money for over one year to bail him out. “The state was upset that I raised enough money to bail out. They were trying everything in their power to get the judge to take my bail away. I just couldn’t understand why they would do that.” The problem, wrote another defendant named T.S., has “always been a system where bails are set as ransoms, so not to allow people back into society.”

In recent weeks, both the New York City Bar Association and the State Justice Task Force, which was tasked with reducing wrongful convictions in the state, have come out in favor of Cuomo’s bail reform proposals. The District Attorneys Association of the State of New York (DAASNY), on the other hand, opposed any proposal in the budget to end cash bail, citing the “realities of human behavior” and “how the criminal mind operates.”

With a bipartisan bill aimed at getting states to reform their bail systems introduced in the U.S. Senate last summer, and several other states, like neighboring New Jersey, already having eliminated almost all cash bail, New York’s failure to act seems out of step with the rest of the country. Perhaps unsurprisingly, gubernatorial candidate and frequent Cuomo critic Cynthia Nixon recently said, “We need to end cash bail in New York.”

Tina Luongo, Attorney-In-Charge of the Criminal Defense Practice at the Legal Aid Society, said in a statement that Legal Aid will continue to pursue bail reform and other much-needed reforms through the regular legislative process. “Today, tomorrow, and for the indefinite future, people of color will continue to bear the brunt of a disparate criminal justice system simply because Albany decided to put politics ahead of the people, and money ahead of justice,” Luongo said. “We are not done fighting, and we call on the Legislature to advance these key reform issues through standalone legislation by the end of session.”

But advocates for the status quo—like prosecutors—which needlessly incarcerates thousands of poor people every day, have always found a home in Albany, where cynicism and backroom-dealing reigns supreme.

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