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FOSTA Backers to Sex Workers: Your Work Can Never Be Safe

Tweets by Marian Hatcher, Senior Project Manager and Human Trafficking Coordinator at the Cook County Sheriff’s Office

FOSTA Backers to Sex Workers: Your Work Can Never Be Safe

On April 11, President Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), legislation that would make it possible to hold the operators of websites criminally and civilly liable if third parties were found to have posted advertisements for prostitution.

Days before the legislation was enacted, however, federal authorities seized, essentially locking sex workers out of the website. The United States Attorney’s Office for the District of Arizona indicted seven Backpage staffers, including co-founders James Larkin and Michael Lacey, on charges including money laundering and facilitating prostitution. Then, on April 12, the Department of Justice announced that Backpage CEO Carl Ferrer pleaded to federal charges related to money laundering and violating the Travel Act to facilitate prostitution, contingent on pleading to state trafficking charges.

FOSTA and the Backpage indictment have rapidly transformed trafficking into a matter of national politics. On April 19 Trump declared in characteristic overstatement that “human trafficking is worse than it’s ever been in the history of the world.” The very same day, New York Governor Andrew Cuomo, who is thought to be considering a run for president in 2020, announced plans to change the state’s trafficking laws by “eliminating proof of the elements of force, fraud or coercion in cases of children under 18.” Trafficking, Cuomo said, “is nothing short of a modern day slave trade that preys on children and the most vulnerable among us, and it must be shut down once and for all in New York and beyond.”

Prior to FOSTA’s passage, sex workers and survivors of trafficking, as well as advocates for both communities, warned that the legislation and crackdowns on websites that could come in its wake would be dangerous for sex workers and survivors of trafficking alike. They argued that closing low-cost online ad sites like Backpage would drive sex workers out of indoor work spaces that allowed for discreet advertising and client screening and into the streets.

Sex workers also said that low-income sex workers, sex workers of color, and trans sex workers — already facing high levels of arrest and violence — would be disproportionately affected by the loss of sites like Backpage. Indeed, within 48 hours of the feds’ seizure of the website, sex workers reported a drastic loss of income, the threat of homelessness, and the opportunistic return of abusive customers.

Since FOSTA was enacted, the groups that pushed for its passage — among them law enforcement, anti-sex work groups, and religious right groups — have acknowledged the vocal opposition to the legislation from sex workers themselves. Marian Hatcher, the senior project manager and human trafficking coordinator at the Cook County Sheriff’s Office, who lobbied in favor of the legislation, tweeted on April 13, “#SEXWORKERS … SESTA had NOTHING to do with SW.”

Hatcher and other high-profile FOSTA supporters continue to maintain, however, that there are no safe places for sex workers. Republican Senator for Ohio Rob Portman, who drafted the original bill on which FOSTA was based, was asked about sex workers’ safety; a spokesperson responded, “Tell that to the mothers and fathers of daughters who’ve been murdered after being trafficked on Backpage.” Similarly, in an April 5 interview meant to “set the record straight” on a “new anti-trafficking bill in the US [that] has gotten a lot of bad press,” Hatcher said, “screening for potentially violent sex buyers and assurances of safe places do not exist in prostitution.”

But Hatcher and Portman’s rejection of the idea that online ads can be a form of harm reduction is disputed by sex workers and researchers alike. A 2017 University of Leicester study of online sex workers showed that 85 percent of respondents who advertised online said this allowed them to screen customers. When asked about violence they had faced in the previous 12 months, just under eight percent had experienced sexual assault, and five percent had experienced physical assault. Research from University of Baylor suggests that the Craigslist Erotic Services’ section led to a 17 percent drop in female homicide rates.

By denying the existence of “safe places” for sex workers on sites like Backpage, Hatcher maintains that sex work can never be safe. Hatcher has also attacked women’s rights groups, like the Women’s March, for stating that sex workers had relied on Backpage to safely contact customers. “Utter NONSENSE!!! Why does @womensmarch continue to perpetuate lies!!!” she tweeted on April 8. “ITS [sic] NOT SAFE!!”

Hatcher’s stance stems in part from her unusual personal history: After a career in corporate America, she says was trafficked on Chicago’s streets while in her 40s. Her path out of the sex trade began with a 2004 arrest for violating probation on a drug charge. “I never expected that jail would be my saving grace,” she wrote in a first-person essay for Vox in 2017. “Now I hope to make it the same for more victims like me.” She has worked for 14 years now in Illinois’ Cook County Sheriff’s Office, at first joining the same program that she credits with saving her from the sex trade. In 2016, she received a Presidential Lifetime Achievement Award for Volunteer Service from former President Barack Obama.

Since joining the sheriff’s office, Hatcher’s work has turned toward policy, she has said, as well as “efforts to bring down pimps, traffickers, and johns.” With Cook County Sheriff Tom Dart, Hatcher coordinates the National Johns Suppression Initiative, claiming more than 600 arrests since its inception. She is also a paid coordinator for Demand Abolition, which has supported public awareness of Cook County’s efforts to disrupt “sex buying,” which the organization believes is the solution to trafficking. And along with Dart and Demand Abolition, Hatcher has also campaigned against Backpage and for FOSTA.

As a leading FOSTA proponent, Hatcher not only supports continued police crackdowns on sex work, but she also advances a political agenda: that consensual sex work does not actually exist. “Prostitution is ugly,” as she put it in 2015. “Most of it is sex trafficking.” After FOSTA was enacted in April, Hatcher said, “To argue that this bill will harm ‘sex workers’ is to ignore the fact that most women and girls being sold on these websites are not doing so by choice.” When websites serving sex workers began to go offline, Hatcher said, those shutdowns were evidence of “the power SESTA-FOSTA has to hold them [websites] legally responsible for facilitating these criminal activities.”

While celebrating the closure of websites proven to provide sex workers with more safety and power at work, Hatcher also dismisses sex workers’ fears — already borne out — that FOSTA would harm them. Such demands for safety are invalid, Hatcher and other FOSTA proponents argue, because sex work itself is illegitimate. “As a survivor of the sex trade and someone who works closely with other women globally, who are either surviving or who have survived it, I unequivocally maintain that prostitution is an inherently violent industry in both illegal and legal environments,” Hatcher told The Appeal. “Websites will never provide safety in prostitution…. The ability to screen sex buyers online is an illusion that must be debunked.”

What is needed, Hatcher has said, is “robust exit services for those who sell sex.” That’s what Hatcher and the Cook County sheriff’s program provide sex workers — along with a criminal record.

Did Gov. Cuomo Grant New York Parolees the Right to Vote? Not Exactly.

Governor Cuomo at the National Action Network conference on Wednesday.
Gov. Andrew Cuomo / Flickr

Did Gov. Cuomo Grant New York Parolees the Right to Vote? Not Exactly.

When Governor Andrew Cuomo announced Wednesday that he would restore voting rights to New Yorkers on parole, he won instant praise from organizers who had long pushed for criminal justice reform.

“This executive order will mean thousands more will be welcomed back into our democracy and assured that in 21st century America, the right to vote is inviolable,” said Myrna Pérez, deputy director of the Brennan Center for Justice’s democracy program, in a press statement.

People on parole, including those who have long pressed for reform, also lauded the announcement. “It’s about time,” said David Schermerhorn, a community leader with VOCAL-NY (Voices of Community Activists and Leaders-New York), a grassroots organization of low-income people affected by HIV/AIDS and mass incarceration. “Politicians have always ignored people like me on parole because we couldn’t do anything for them. Now we have a voice.”

Cuomo himself used the announcement at the National Action Network conference to bolster his reputation as a criminal justice reformer, which is particularly significant now that Cynthia Nixon is posing a challenge from the left in the Democratic primary. “It is unconscionable to deny voting rights to New Yorkers who have paid their debt and have re-entered society,” Cuomo stated at the conference, noting that 71 percent of the approximately 35,000 people on parole are Black or Latinx. “This reform will reduce disenfranchisement and will help restore justice and fairness to our democratic process.”

His announcement garnered headlines like “Cuomo restores voting rights to all 35,000 parolees in New York” and “New York Gov. Andrew Cuomo signs executive order giving parolees in his state the right to vote.”

But did Cuomo deserve them? A closer read of the executive order shows that it doesn’t actually guarantee people on parole the right to vote. Instead, it requires the commissioner of the Department of Corrections and Community Supervision (DOCCS), the state agency responsible for prisons and parole, to send his office a monthly list of everyone currently under parole supervision for consideration. “Each individual on the eligible list will be reviewed to determine whether he or she will be granted a pardon that will restore voting rights,” states the order. In other words, what looked like a sweeping restoration appears to be more of a case-by-case decision.

The governor’s office did not respond to The Appeal’s query regarding how the executive order was worded and whether Cuomo plans to individually evaluate parolees. The wording could be an attempt to avoid the fate of Governor Terry McAuliffe of Virginia, where state law disenfranchises people with felony convictions. McAuliffe’s executive order restoring their voting rights was overturned by the state Supreme Court, which ruled that he could only restore rights on a case-by-case basis. He did, restoring voting rights to approximately 168,000 people with felonies.

The pardon Cuomo would use is different from the power of the pardon that the governor already has — to set aside a person’s conviction so that it no longer shows up on a background check or subjects them to deportation. (Since 2011, Cuomo has granted over 100 of these pardons to people convicted of misdemeanors or nonviolent felonies when they were 16 or 17 years old and 18 to immigrants whose convictions made them at risk for deportation.)

In New York, people on parole already have a pathway to the ballot box, but it’s cumbersome. Those who have been convicted of misdemeanors, violations, or no more than one felony can apply for a Certificate of Relief from Disabilities. Those with two or more felony convictions can apply for a Certificate of Good Conduct. Both allow a person on parole to vote. If the person successfully completes parole, their ability to vote is permanently restored. People on probation are eligible to vote at any time.

While the media and many advocates, including formerly incarcerated people and people on parole, praised Cuomo’s action, others were skeptical. Some pointed out that similar promises from New York officials — not to prosecute low-level marijuana possession, for instance — haven’t always panned out. And Cuomo’s own bail reform plan was shelved during budget negotiations in Albany last month.

“We need to be clear that no one’s right to vote was restored this week,” pointed out Nick Encalada-Malinowski, VOCAL-NY’s civil rights campaign director. “We still need to see how Cuomo will actually operationalize this executive order … In all likelihood we will still need to pass legislation to secure a clear and permanent right to vote for people on parole.”

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Prosecutors Aren’t Just Enforcing the Law — They’re Making It

A homemade coffin placed outside the Rikers Island jail in memory of Kalief Browder.
Felton Davis / Flickr [CC]

Prosecutors Aren’t Just Enforcing the Law — They’re Making It

Just a few months ago, New York Governor Andrew Cuomo seemed sure that criminal justice reform was imminent. During his annual State of the State address in January, he called for a legislative package that would limit civil asset forfeiture, reform discovery, reduce trial delays, and most notably, significantly reduce the use of cash bail. “For far too long, our antiquated criminal justice system has created a two-tier system where outcomes depend purely on economic status — undermining the bedrock principle that one is innocent until proven guilty,” Cuomo said.

To underscore the dysfunction of New York’s criminal justice system, Cuomo told the story of Kalief Browder. Browder was 16 when he was jailed for stealing a backpack. He spent three years imprisoned at Rikers Island because his family could not afford his $3,000 bail. His time in jail was marked by abuse from guards and fellow inmates alike, as well as long stints in solitary confinement. Browder maintained his innocence, and eventually the charges against him were dismissed. But it was too late—Rikers had destroyed him. Two years after his release, Browder committed suicide. As Cuomo vowed to fix the state’s bail system, he addressed Browder’s brother, an invited guest, directly. “Akeem,” he proclaimed to the young man sitting in the audience. “I want you to know that your brother did not die in vain. Sometimes the Lord works in strange ways — but he opened our eyes to the urgent need for real reform.… We will address it and you have my word on that.”

Cuomo’s aides characterized the legislative package as “the most progressive set of reforms in the nation.” But as he tried to corral support from defense lawyers and reform supporters, many of them remained troubled by some of the details. At best, with some wrangling, it would be only the beginning of what is inevitably going to be a long road. But it was something.

Advocates were especially hopeful for bail reform: One poll found that more than 70 percent of people supported pretrial release for those accused of misdemeanors or nonviolent felonies, as long as they weren’t a flight risk. Even more striking, more than 70 percent of crime victims supported release under those conditions. “There’s a real delta between what the public wants and what is currently happening,” Zoe Towns, of, said. “We hope that the finding will really … encourage lawmakers to be bold on this issue.”

Until late March, it looked as if significant change might move forward. But then, suddenly, it was over. The budget, signed earlier this month and primarily negotiated in private by the governor and just three powerful legislators, did not include the criminal justice reforms Cuomo so adamantly supported just weeks ago. Despite what he said to Akeem, the budget doesn’t fund bail reform at all. As journalist Max Rivlin-Nadler wrote in this publication, “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.”

Whose fault is it that criminal justice reform failed in New York? While there’s plenty of blame to go around — a corrupt legislature, Cuomo’s craven maneuvering, the bail bond lobby — there’s one behind-the-scenes player whose influence gets little attention: the District Attorney’s Association of the State of New York (DAASNY).

DAASNY has been shaping criminal justice legislation in New York for over a century. The association’s membership includes all 62 elected district attorneys in the state, as well as many assistant prosecutors. In many ways DAASNY is like any other professional organization: It holds trainings, hosts conferences, and issues a newsletter. But its enormous leverage in the state legislature makes it uncommonly powerful. DAASNY largely serves as a lobbying group — and a very effective one.

Since its inception, this has been part of the organization’s purpose. The first press piece about the association, published shortly after its formation in 1909, notes the group’s desire for legislative influence. “While the intentions of the legislators are of the best,” it reads, “they oftentimes enact laws … which embarrass the prosecuting attorneys of the state.”

Over 100 years later, that influence persists. In January, DAASNY sounded optimistic about bail reform. “We understand that there is room for improvement in New York State’s bail statute,” said Oneida County District Attorney and current DAASNY President Scott McNamara after Cuomo’s speech. But, in the end, the organization released a statement concluding that the proposed bail legislation, as well as the other legislative initiatives, “go too far.” The statement insisted that supporters of criminal justice reform don’t understand “the realities of human behavior” and “how the criminal mind operates.” It also “strongly advised” against including the reform measures in the budget. It’s unsurprising, then, that legislative reform was unable to get off the ground.

This phenomenon is not New York-specific. Every state has an equivalent organization of prosecutors with strong policy perspectives, which often have enough sway to simply shut down criminal justice reform at the legislative level. The failure of bail reform in New York mirrors countless other legislative reform failures in many other states. As Jessica Pishko wrote in The Nation, “district attorneys’ associations are powerful political actors. They do not just “enforce” the law; in fact, they help to make it.”

Across the country, DA associations are using that power to defeat a wide range of bipartisan reform efforts. Though the criminal justice system has come under increasing scrutiny, these organizations continue to successfully hinder legislative reform. When it comes to criminal justice, associations like DAASNY are largely responsible for the gulf between policy and public opinion.

The stories are endless. Take Alabama. Not much is bipartisan in Alabama anymore, but recent efforts to rehabilitate civil asset forfeiture managed to bridge the impossible gap between parties. Civil asset forfeiture allows law enforcement to seize and keep someone’s property if they allege it is related to a crime — even if that person is never convicted or even charged with anything. Police and prosecutors can take millions of dollars’ worth of cars, cash, real estate, and other property from hundreds of innocent people, and often profits from those seized assets are deposited directly into law enforcement coffers.

Late last year, the Southern Poverty Law Center and the Alabama Policy Institute, a conservative organization, both supported a strong asset forfeiture reform law. “API and SPLC don’t agree on 99 percent of stuff, but we do agree that we need to monitor civil asset forfeiture,” said Leigh Hixon, API’s senior director of policy relations.

In January, Republican State Senator Arthur Orr introduced the Alabama Forfeiture Accountability and Integrity Reform Act, or FAIR, which would have required a criminal conviction before the government could seize a person’s property. Both parties supported the legislation — but the Alabama District Attorneys Association (ADAA) and other law enforcement groups did not. The presidents of the ADAA and the Alabama Sheriffs Association wrote an op-ed espousing the value of civil asset forfeiture, declaring, “Law enforcement uses civil asset forfeiture only to go after criminals.”

A wealth of evidence, of course, says otherwise. Frank Ranelli owned a small computer repair shop in Birmingham. Almost eight years ago, 20 police officers, some with assault rifles, barged into his store and confiscated almost 130 computers that they suspected were illegally purchased. In the end, though, only one laptop was actually even in question — and that charge was dismissed after Ranelli proved that he had followed the law. But, as of October, Ranelli still hadn’t gotten any of the computers back.

The prosecutor and sheriff’s op-ed conveniently fails to mention stories like Ranelli’s. Instead, it was chock full of outlandish predictions, none of which were undergirded by evidence. They insisted that if law enforcement had to share the profits from seized property with other agencies, there’d be “fewer busts of drug and stolen property rings” since there won’t be incentives to seize the assets if law enforcement has to share the spoils. They also claimed that limiting asset forfeiture law would result in “more people going to prison for lesser crimes.”

This is how many prosecutor associations maintain their influence — by trading on paranoia and fear, and convincing voters and lawmakers alike that, without harsh criminal sanctions for even the most minor offenses, crime will run rampant and legislators who vote for reform will be at fault.

Statements like these are easily rebuttable, but in Alabama it didn’t matter. In the end, the only thing that mattered was that prosecutors and cops didn’t like the bill, and legislators weren’t “comfortable” passing the legislation without their validation. So, civil asset forfeiture reform, which had overwhelming bipartisan support, was dead in the water, replaced by a diluted bill that only requires the state to maintain data on seized assets.

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

In California, the District Attorneys Association is pushing legislation that would limit Prop 47 and Prop 57, two criminal justice ballot measures that passed with overwhelming voter support. Last year, the association successfully stalled bail reform legislation. Meanwhile, the Arizona Prosecuting Attorneys’ Advisory Council has pushed for harsher drug penalties while opposing forfeiture and bail reforms. Earlier this month, Nebraska lawmakers failed to pass a bill requiring more transparency around the use of jail informants, after the Nebraska County Attorneys Association fought against it. Similarly, after legislators introduced civil asset forfeiture reform legislation in March, the Minnesota County Attorneys Association and other law enforcement agencies immediately started pushing back. And, in November, the Indiana Prosecuting Attorneys Council delivered a “firm warning” to lawmakers opposing any marijuana legalization, including for medical use, and linking it to welfare dependency.

And then there’s Louisiana.

The Louisiana District Attorneys Association is one of the most powerful DA associations in the country. According to Pishko, “from 2012 to 2015, criminal-justice bills backed by the LDAA had an 85 percent rate of passage in the Louisiana Statehouse, while criminal-justice bills it opposed passed only 38 percent of the time.” Given prosecutorial power in the state, then, it should not surprising that Louisiana is the most carceral state in America, which is the most carceral country in the world.

Last year, Louisiana was poised to pass a series of major criminal justice reform laws — a mighty feat in a state that has historically demonstrated an unshakeable commitment to tough-on-crime policies. But the LDAA reared its head, releasing a public opposition report while pushing legislators to vote against it. In the end, some pieces of last year’s reform legislation still passed. But, as Pishko reported, as a result of the LDAA’s involvement, “many key provisions had been gutted.”

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

This year, the LDAA came back to deal a death blow to criminal justice reform in Louisiana. Prosecutors are pushing five new bills that many advocates consider a rollback of the reforms that did pass last year. The bills would allow judges to extend probation past the current limit, and would require that people in the criminal justice system “pay restitution” to the court and their victims, which could add up to hundreds of thousands of dollars. Those who can’t pay would end up back in prison.

Earlier this month, Baton Rouge Representative Denise Marcelle introduced legislation that would “require criminal grand juries to review all officer-involved shootings resulting in injury or death.” She decided to bring the bill after the Louisiana attorney general decided last month not to file charges against the cops that killed Alton Sterling, a Baton Rouge man who was shot in 2016.

But LDAA Executive Director Pete Adams was fiercely opposed, claiming that the bill was “unconstitutional.” Marcelle decided to shelve the legislation.

The way prosecutor associations wield their influence reveals an uncomfortable truth about the current makeup of the profession. Prosecutors are tasked with a sacred duty — the duty to seek justice. But their lobbying efforts often reflect priorities that simply are irreconcilable with justice as a paramount concern.

Time and time again, these organizations throw their weight behind legislation that reflect the tough-on-crime dogma that has long defined criminal justice policy in America. This in itself reflects a troubling misunderstanding of their role — prosecutors are supposed to do what is right, and sometimes what is right is what is lenient.

But that misunderstanding is exacerbated by another pattern — as these organizations lobby for increased sanctions for ordinary citizens, they also fight to limit oversight over law enforcement. In states across the country, prosecutors are supporting more punishment for low-level theft while simultaneously fighting any attempts to limit law enforcement’s ability to seize property without cause. They fight to increase substantive punishments while reducing procedural safeguards.

How can these be reconciled? Only one value connects these otherwise inconsistent priorities: victory. Overwhelmingly, prosecutors throw their weight behind legislation that makes winning easier, even when it pushes them further from justice.

Nowhere is this truer than in Florida, where the Florida Prosecuting Attorneys Association (FPAA) has maintained colossal impact for at least half a century. The organization has repeatedly fought to enact harsher legislation at the state level, and last year, its dedication to barbaric tough-on-crime law enforcement led the group to turn on their very own. When Orlando State’s Attorney Aramis Ayala, a member of the FPAA, announced her decision to refuse to seek the death penalty, the FPAA filed a brief against her, which, according to Pishko, said that “Ayala had violated the separation-of-powers doctrine by effectively setting her own policy.” In a conversation with The Nation, Glenn Hess, another Florida prosecutor, justified the decision to file a brief against Ayala. “At the FPAA, our job as prosecutors is not to make law,” Hess said. “It is to take the law the legislature makes and enforce [it] in the state.”

The separation of powers is supposed to be sacrosanct, a way to ensure balance and prevent the always looming threat of authoritarianism, but the association’s appeal to these values is hypocritical.

Prosecutors are supposed to be squarely within the executive realm — tasked with enforcing the law, not making or interpreting it. As a rule, prosecutors have executed the enforcement mandate fanatically. Yet, Hess’s implication that the prosecutorial role is so narrow is misleading. Prosecutorial power has grown beyond the limits of mere enforcement. In fact, over the past forty years it has ballooned so drastically that prosecutors’ influence has seeped into the other two branches, as well.

The judicial branch is meant to be a relatively neutral force that protects the individual defendant from the power of the state. But, in a criminal system that handles most cases by plea deal, judges have less oversight over the criminal process than ever before, giving prosecutors a leash so long it is functionally non-existent. The presence of a judge has been replaced by the whims of a prosecutor.

This is why the legislative influence of DA Associations is so concerning. It gives prosecutors a stronghold over not only executive and judicial power, but legislative power, as well. More than any other position, prosecutors threaten the traditional balance of powers within the criminal justice system. Ultimately, this more than anything else has shifted tough-on-crime from hypothesis to axiom.

The presence of a judge has been replaced by the whims of a prosecutor.

Last month, Maricopa County Attorney Bill Montgomery was asked about the outsize influence of prosecutors on criminal justice legislation in Arizona. Like Hess, he responded by asserting that they aren’t lawmakers. “Prosecutors don’t have a vote at the Legislature,” he said. “We don’t sit on committees. We don’t sponsor bills. We don’t get to vote on the floor.” This, of course, is technically true. But in many—if not all—state legislatures, they have leverage over those that do.

This level of power is close to impossible to rein in, and DA associations serve as its primary guardian.

Last month, Pishko wrote for this publication about two bills that would implement prosecutorial oversight for elected DAs in Louisiana. “The legislation is intended to fill a gaping void that is especially noticeable in Louisiana,” she wrote. “There are limited ways in which prosecutors can be held accountable.”

Perhaps predictably, this proposal was unpopular with the LDAA. Neither bill made it out of committee.

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