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Montana Prosecutor’s Crackdown on Pregnant Women Who Use Drugs Could Harm Women’s Health

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Montana Prosecutor’s Crackdown on Pregnant Women Who Use Drugs Could Harm Women’s Health


Last month, a Montana prosecutor made a major move to criminalize pregnant women. Big Horn County Attorney Gerald “Jay” Harris announced he would seek civil restraining orders against pregnant women who use drugs or alcohol. Under these court orders, pregnant women can be monitored for such conduct by law enforcement. If they are found in violation of the orders, they can be sentenced to jail time.

“In the event there are provable violations of any such protective court orders, the State will further prosecute on a contempt basis and seek incarceration in order to incapacitate the drug or alcohol-addicted expecting mother,” Harris stated in a January 11 press release.

Harris also called on the public to be his eyes and ears. “In furtherance of this crackdown policy, the County Attorney’s Office is asking the public to report any known instances of pregnant females using drugs or alcohol to the Big Horn County Sheriff’s Office,” the press release stated. “Reporters must be willing to testify in court.” He also asked pregnant women with addictions to report themselves to the Department of Health and Public Services and voluntarily enroll in substance abuse monitoring. In Montana, health care workers are also required to report suspicion of drug use by pregnant women.

But critics say his plan is likely to backfire. “I think this whole idea of policing pregnancy that Jay Harris is encouraging is very counterproductive and dangerous,” said Caitlin Borgmann, director of ACLU Montana, “if what we’re wanting to do is help these women have healthy pregnancies.”

Harris is not the the first Montana county attorney to attempt to protect fetal rights. In 2014, a prosecutor in Ravalli County tried to charge a woman with criminal endangerment based on her drug use during pregnancy. The charges ended up being dismissed by the judge, who noted that a fetus is not protected from criminal endangerment under state law. That may be why Harris chose to utilize civil instead of criminal charges against women; he likely assumes he won’t run afoul of a Montana law that prohibits the type of “fetal assault” charges used in other states.

In response to Harris’s announcement, groups like ACLU Montana and the Coalition against Domestic Violence and Sexual Violence signed a letter calling the prosecutor’s move “counterproductive, paternalistic, and cruel … [as well as] illegal” and condemned the crackdown for building barriers to substance abuse treatment.

ACLU Montana and several other organizations also said they will sue Harris, arguing that his move to punish pregnant women would violate the dignity and due process statutes as well as the equal protection statutes of Montana’s constitution. It would also violate Montana’s Human Rights Act, they say, which prohibits discrimination based on sex and pregnancy status.

Laws designed to punish pregnant drug users can be found across the country. According to the Guttmacher Institute, “24 states and the District of Columbia consider substance use during pregnancy to be child abuse under civil child-welfare statutes, and three [Wisconsin, South Dakota, and Minnesota] consider it grounds for civil commitment.”

According to an Amnesty International report released last year, fetal assault laws enacted in 2014 in Tennessee and 2006 in Alabama disproportionately affected rural women and Black women. Arrests in Shelby County, Tennessee, a Black-majority county, comprised a quarter of all arrests under the fetal assault law in that state, despite Shelby County having one of the lowest rates of babies born exposed to opioids. In interviews Amnesty conducted with women charged under fetal assault laws in Tennessee and Alabama, low-income women told the organization they avoided obstetrical care because they were worried they might get drug tested. Furthermore, Amnesty reported high arrest rates in areas like East Tennessee where access to treatment centers and medical options for addiction are scarce.

The ACLU’s Borgmann says that DA Harris’s plan to pursue civil charges against pregnant women will similarly target minority communities and low-income residents generally.

“Attorney Jay Harris reached out specifically to the Crow and Northern Cheyenne reservation to ask them to help him implement this policy,” Borgmann told The Appeal by phone. “So I think we do have to be concerned that this will disproportionately be targeting Native women in Montana.

“Low-income women tend to have more interactions with the government,” Borgmann continued. “For housing, for medical care, for other kids of social services — so their drug use is more likely to be caught. It doesn’t mean that they’re necessarily doing higher rates [of drug use], but it’s because of … their increased interactions with the government that they tend to be disproportionately targeted.”

Worse, in Montana there are few options for pregnant women with addictions. According to the Missoulian, only 7 percent of the state’s treatment centers have programs specifically for pregnant women or women who just gave birth. Addiction treatment providers say that after getting their Medicaid reimbursement funding cut in 2017, it’s difficult to meet the needs of addicted people in the state, especially pregnant women. And Big Horn County doesn’t have a residential treatment program specifically for pregnant women; the county offers only outpatient services for them, according to Lenette Kosovich-Edgerton, CEO of Rimrock, the largest treatment center in Montana.

In order to receive residential treatment services, a pregnant woman from mostly rural Big Horn County, population 13,343, would have to go to the largest city in the state: Billings, Montana, which is about 50 miles away. She would then likely be placed on a waiting list before she could be admitted into the center.

Borgmann of the Montana ACLU fears that Harris’s plan to crack down on pregnant women in a state where there is already a lack of treatment centers would likely lead to low-income women and rural women avoiding necessary health care services.

Both she and Kosovich-Edgerton say the best way to help pregnant women with substance abuse problems is not to criminalize them, but to provide more accessible and affordable treatment centers that are designed to treat them, and to encourage such women to seek treatment via education and public awareness campaigns. “It would basically be the opposite of what [Harris] is suggesting,” Borgmann said.

Correction: This story has been updated to note that the county attorney does not issue restraining orders, but rather seeks them from the court.

A National Campaign to Crack Down on Massage Businesses May Harm the Women it Wants to Help

Illustration by Adrian Brandon

A National Campaign to Crack Down on Massage Businesses May Harm the Women it Wants to Help


Polaris, a Washington, D.C.-based non-governmental organization best known for operating the National Human Trafficking Hotline, says it has located a new front in the fight against human trafficking: what it describes as “illicit massage businesses,” or IMBs.

The nonprofit, which brought in $10 million in 2016 (of which $2.1 million is government funding, according to IRS filings) announced in January that it wants to close these establishments, which are staffed primarily by Chinese and Korean immigrant women, around the United States. By Polaris’s definition, an IMB is “a business that purports to provide massage therapy services but in fact makes its profits through commercial sex.”

Human trafficking, meanwhile, is defined as the use of force, fraud, or coercion to compel labor, whether that’s in the sex industry, the service industry, or any other. Though Polaris says it doesn’t know how many people are trafficked in IMBs, its campaign nevertheless targets such businesses.

The campaign kicked off with an 11-city tour called “Hidden in Plain Sight,” held in movie theaters alongside blockbusters and concession stands. For $5, attendees could watch a film on the sex trade in Seoul, Korea, listen to guest speakers from social service agencies, and hear Polaris staff pitch the campaign — popcorn and soda included.

“This is a large-scale social change initiative,” said Polaris Executive Director and CEO Bradley Myles at the New York tour stop on January 18. “We are actually trying to spark a catalyst across the 50 states and thousands of cities.”

Polaris wants to enlist the public in demanding tougher civil laws and heightened enforcement at massage establishments. To that end, the organization plans to launch a website that will provide a brief rundown of local massage business regulations and quick links to email and tweet at local politicians. Its focus isn’t on penalizing the workers, Polaris says, but on investigating the businesses themselves. The report recommends treating IMBs like organized crime operations, with investigations scrutinizing business records for evidence of money laundering or tax evasion. Laws pertaining to hours of operation, locks on doors, and occupancy can be paired with fines to discourage “illicit” businesses, the logic goes.

Polaris describes the illicit massage industry as having conditions ripe for labor exploitation, such as tip-sharing with management and on-call scheduling. Though these conditions are not at all exclusive to the massage business, the group argues that workers in these establishments are particularly vulnerable. Bosses can take their earnings for “safekeeping,” force them to work all hours, and levy fines for infractions that can pile up into huge debts. Polaris also recognizes there are serious barriers for people who may be trafficked in massage establishments to get the help they need, such as a lack of housing, health care or legal services.

“The number one concern and request these women have is that they need access to a living wage and money to send back home,” Rochelle Keyhan, Polaris’s director of disruption strategies, told The Appeal. “That’s why they’re here, that’s why they are vulnerable, that’s what’s being exploited. And if we don’t have meaningful opportunities to connect them to, they are still very easy prey.”

Polaris says it will connect the women to other job and educational opportunities, but its lofty goals miss a basic premise: The group’s strategy of close coordination between civil enforcers, police and service providers is already playing out elsewhere in the country, and has not been successful in identifying people who are trafficked. And for Chinese and Korean immigrant women, the potential consequences of law enforcement contact are grave, ranging from loss of massage license to arrestdeportation, and even loss of life. When a massage business shuts down, its workers — trafficked or not — are likely to remain vulnerable.

The number one concern and request these women have is that they need access to a living wage and money to send back home.Rochelle Keyhan, Director of disruption strategies, Polaris

Womankind, a New York-based service provider for Asian survivors of trafficking, is one of several survivor groups criticizing Polaris’s approach. “The reality that we still face,” the organization said in a statement to The Appeal, “is that policing, regardless of how creative and collaborative the approach may seem, does not tackle the root causes of vulnerability and exploitation.”


“Still in Their Survival Mode”

Massage businesses offer a range of jobs for women — doing massage work, answering phones, providing security — which are often advertised in newspapers and through social messaging apps. Ms. H, a 52-year-old woman living in Flushing, Queens, used to work as a phone operator for a massage business. She found the job from a listing in a Chinese newspaper, she told The Appeal. Before that, she said, “I’m looking for a job. I never get hired.”

In a recent interview over tea in her home, H recalled going to Jersey City for an office job interview. She stopped two people to ask for directions, when an older white woman interrupted. Thinking she was helping her, the woman indicated a massage business across the street. “Society thinks Chinese girls belong in Chinese massage parlors,” H said.

Two other former massage workers told The Appeal that they took jobs, in part, because they had children to support. Ms. Z, 59, is a client at Garden of Hope, a Flushing-based nonprofit that provides shelter and housing assistance, translation services, and immigration assistance to current and former massage workers, many of whom are mandated to services after prostitution arrests. Z spoke to The Appeal via email, with Susan Liu, the group’s associate director of women’s services, serving as translator and intermediary.

Z traveled to the United States from China 20 years ago, hoping to support her child in the wake of her husband’s affair and their subsequent divorce. “He did not provide any support for me and our child,” she said. “I was in a very bad situation and I came to the U.S. to get a fresh new start.” She found her massage job through the Chinese newspapers, as well as through word of mouth at a nail salon where she worked.

Ms. B, a 38-year-old former massage worker and Garden of Hope client, came to the U.S. from China in 2011 and learned about the job on a bulletin board in a Chinese supermarket. In China, “I was forced to undergo [an] abortion by family planning officials due to the one-child policy,” she said. “They then demanded me to also undergo sterilization. I was tired and scared, so I came to the U.S.”

But working in a massage business carries its own risks. Over the past few years, police in New York City have dramatically increased arrests targeting massage workers like Z and B. Between 2012 and 2016, overall arrests of Asian-identified people in New York City charged with both the “unauthorized practice of a profession” and prostitution went up by 2,700 percent, according to a 2017 report from the Urban Institute. In recent months, the arrests have declined somewhat, but Queens massage businesses are still a target of anti-prostitution policing.

Not only are massage workers still being arrested, some massage workers now face the heightened threat posed by immigration enforcement. The Urban Institute found that, of the thousands of clients in a Legal Aid Society program representing individuals charged with prostitution in New York City, noncitizen Asian migrant women made up 87 percent of the arrests for unlicensed massage. Last June, according to Legal Aid, plainclothes Immigration and Customs Enforcement agents detained three women at the Queens court where most prostitution cases in the borough are sent. A fourth and ultimately unsuccessful detention attempt by ICE at the Queens court drew condemnation from then-New York City Council Speaker Melissa Mark-Viverito. Yet ICE continues to use city courts to target immigrants, who now may face deportation as a consequence of their arrests.

Liu, of Garden of Hope, was invited to participate in Polaris’s New York event last month. During a panel discussion, she said her clients have limited options and she often sees them return to massage jobs even after they are arrested. “I know that many of them are still in their survival mode,” she said. “After their mandates, they are still going to go out and work.”


San Francisco’s Approach

Inits new 96-page report on massage establishments, Polaris points to San Francisco as a model city, for what it calls “one of the most successful, large-scale and sustained efforts by a civil enforcement agency to disrupt IMBs trafficking in its jurisdiction.” Police continue to play a role in this enforcement, however, and it is not clear that it has made an impact on trafficking at all.

The San Francisco Department of Public Health conducts annual inspections of all massage establishments, according to Patrick Fosdahl, the agency’s assistant director of environmental health. Fosdahl stressed to The Appeal that DPH inspectors are not police officers, and do not arrest workers. They do, however, have the ability to fine establishments. Business owners found to be violating the health code are required to attend administrative hearings, where their licenses can be suspended or revoked. In 2015, DPH estimates that there were about 350 massage establishments in the city, including foot and body massage, as well as hair salons that offered neck massage. When a revised health code went into effect that year, DPH gave every establishment 90 days to get up to code before launching enforcement efforts. There are now roughly 195 establishments, by DPH’s count.

If an establishment is suspected to be engaging in “illegal activities,” DPH generally inspects it after 5 p.m. Inspectors “will walk in on whatever is taking place at time of the inspection, which can include lewd conduct,” Fosdahl said. Workers engaged in this conduct can run the risk of losing their state- or city-issued massage licenses, either temporarily or permanently. To keep their licenses after an administrative hearing, some employees agree to participate in DPH’s Newcomers CONNECT Project, created in 2017 to provide housing and healthcare assistance to migrant workers at risk of exploitation. To date, eight massage workers have participated in the project.

“Police obviously have their own set of laws and authority as far as prostitution is concerned,” Fosdahl added. “If there are instances where they believe an establishment is being used for prostitution, they may do a classic buy-bust operation and pursue criminal charges.”

Fosdahl acknowledges that, from a worker’s perspective, all raids are traumatic. “A lot of these workers view us the same way they do any other government official,” he said. “We might as well be policemen.”

While DPH says it does not accompany police as frequently as it did in the early 2000s, the relationship between the departments remains symbiotic. According to Fosdahl, police have testified about lewd conduct at administrative hearings. DPH also says it has used information provided by the SFPD in its civil enforcement.

Social media apps are one way massage business workers organize independent of government or nonprofit intervention.
Illustration by Adrian Brandon

Last February, San Francisco City Attorney Dennis Herrera celebrated a civil lawsuit that would eventually shutter Queen’s Health Center, a “notorious” massage establishment that the city says offered sexual services in the Financial District. His civil suit was bolstered by multiple undercover police operations, sometimes conducted in conjunction with officials from DPH and the Department of State. For example, the lawsuit states that during a January 15, 2016 operation, “Two massage practitioners solicited an undercover officer for group sex in exchange for $320.”

Alexandra Lutnick, senior research scientist with the Behavioral and Urban Health Program at the nonprofit RTI International, questions the efficacy of these operations in disrupting trafficking. She has analyzed every report labeled as human trafficking filed by the San Francisco Police Department related to massage establishments in 2014 and 2015. In reading the narratives from 69 reports made by San Francisco police over those two years concerning massage establishments, she said, “no human trafficking was identified.”

This did not stop police from saying they found victims. “More times than not,” Lutnick says, “all of the women who are working at the establishment are listed as victims, even when no trafficking was established.” Police reports may describe witnessing acts of prostitution, says Lutnick, “but that isn’t in and of itself trafficking.” For example, during the January 2016 operation at Queen’s Health Center referenced in Herrera’s suit, a search warrant turned up “false bottom containers, United States currency, ledgers, sex toys, and sexual lubricant … all indicia of prostitution.”

This misidentification poses problems for the city’s efforts to document actual human trafficking. When the San Francisco Mayor’s Task Force on Anti-Human Trafficking published data on trafficking from city agencies for their 2015 report, it noted that SFPD “counted all adult sex workers as suspected trafficking survivors, even without signs of force, fraud, or coercion, which state and federal law require.”

Polaris’s latest campaign actively encourages this conflation, claiming there are 9,000 illicit massage businesses across the country, “all of whom have some element of trafficking,” according to Meghan Carton, the projects manager on Polaris’s disruption strategies team.

The “9,000” statistic, according to Keyhan at Polaris, is based on reports from service providers working with 1,393 clients plus thousands of cases of trafficking Polaris says it identified through calls to its hotline. This information is supplemented with reviews from websites where actual or apparent customers describe sexual services they have paid for, as well as news articles, law enforcement data, and public records. However, Polaris has made several different claims about the 9,000 IMBs it has identified, defining them variously as places where trafficking occurs, where sexual services are sold, and where management violates labor laws by requiring tip-sharing and long on-call shifts.

Polaris claims that when massage businesses require workers to endure long hours or deny them employee benefits, and lead them to believe this is standard business practice, that constitutes the “fraud” portion of trafficking.

But while labor law violations can be a sign of possible trafficking, they are not by themselves evidence of trafficking. Carolyn Kim and Erika Gonzalez, senior attorneys at the Coalition to Abolish Slavery & Trafficking (CAST) in Los Angeles, say that’s an important difference. “The Polaris Project report lays out labor violations that could potentially be indicators of human trafficking, but without individual conversations with persons working in massage establishments, it’s hard to know whether they are labor trafficking survivors,” Kim and Gonzalez told The Appeal in a statement.

Polaris maintains that with all illicit massage businesses, “at minimum, it’s labor trafficking,” as Keyhan said in an interview. Yet the organization doesn’t know how many people working in these businesses are actually victims of human trafficking, something the report admits.

The report goes on to tell journalists not to use the term “prostitution” when writing about such businesses. Instead, it advises, “Use the term ‘potential human trafficking.’”


The Wrong Kind of Help

While Polaris says it discourages arrests of massage establishment workers, its report also calls for increased funding for law enforcementand for services to continue to be administered through the criminal justice system. “Budgets must be expanded to acknowledge that victim services and advocacy is not a luxury, an add-on or an addendum to law enforcement” but instead a “key piece of the enforcement puzzle.”

“We work with the courts,” said Susan Jacob, executive director of the New York City Family Justice Center within the Mayor’s Office to Combat Domestic Violence, at the Polaris event in New York. “It is a one-stop shop, basically.”

We asked Keyhan of Polaris, a former prosecutor, to comment on New York State’s Human Trafficking Intervention Courts, which administer services to people arrested on prostitution-related charges. In order to have charges reduced or dismissed, defendants must agree to participate in court-mandated services. Keyhan declined to “indict” or “champion” the model.

“In some areas, that’s the only way within the system to get women connected to services,” she said. “Obviously, we would rather have them be connected to services than not.”

Yet Keyhan emphasized that Polaris’s goal is to inspire law enforcement to make fewer prostitution-related arrests. “We’re not trying to find criminality in the women,” Keyhan said. “We’re trying to arrest the exploiters.”

This attitude represents progress, according to Juhu Thukral, senior founding advisor at the SOAR Institute and founder of the Sex Workers Project at the Urban Institute. “The truth is, even getting organizations like Polaris to admit that the law enforcement has problems is actually a huge shift, and is actually a win for people who are pushing a human rights and dignity approach to sex workers’ rights,” she said.

But Polaris still has a “long way to go,” Thukral says. A better solution, she argues, would be voluntary services that women could easily access without going through the courts, criminal or civil. The Polaris approach, by contrast, still relies on a forced intervention into women’s working lives.


“Talking about Rights, Not Rescue”

Butterfly Asian and Migrant Sex Workers Network, a Toronto-based group working across Canada, was established in 2014 by sex workers with the help of social workers and other experts. The group seeks not only to support massage workers and sex workers, but to advocate together for workers’ rights. Within Butterfly, current and former sex workers are leaders, not just service recipients.

Some massage workers might identify as sex workers, and some may not, said Elene Lam, executive director of Butterfly. “Some people may have more options, and for some people sex work is their only option. But you need to respect and to advocate for their rights.”

Butterfly departs from what Lam calls the “rescue approach” of police and other social service groups.

“We are starting from what the workers need,” said Lam. The group does outreach to massage establishments in Toronto, and through a 24/7 hotline available in English, Mandarin, and Cantonese. Butterfly helps workers based on their needs. For those who want to leave the business, the group helps them navigate state programs that might be available to them. It also offers English and massage therapy classes, and accompanies migrant sex workers through detention review hearings. “A lot of people who work in massage parlors have lost their licenses so they cannot work legally anymore, which can push them more easily to be exploited,” said Lam. “It’s very important that we are talking about rights, not rescue.”

The sex workers’ agency is not always being respected and recognized because they are assumed to be trafficking victimsElene Lam, Executive Director, Butterfly Asian and Migrant Sex Workers Network

Sex workers in Canada face some of the same issues as massage workers in the U.S., including undercover police posing as customers to identify possible victims of trafficking. Under “Operation Northern Spotlight,” Canadian police contact sex workers as if they are booking outcall appointments in their hotel rooms; when sex workers arrive, they are surprised by multiple officers who say they are there to help.

The police claim they’re not focused on sex workers, only on potential victims. But Butterfly joined more than two dozen sex workers’ groups and their allies in Canada to condemn Operation Northern Spotlight, saying sex workers who were subject to the Operation “report feeling confused, frightened, stressed and traumatized after these interactions with police, followed by intense feelings of mistrust in the overall police system.”

“The sex workers’ agency is not always being respected and recognized because they are assumed to be trafficking victims,” Lam said. “I think we already have a lot of assumptions that the people don’t have [the] capacity or ability to make decisions about themselves.”

The Global Alliance Against Trafficking in Women highlights the work of Butterfly in a new report, noting how sex workers can “support each other when they find themselves in crisis situations.” Though there’s not yet a group like Butterfly — one led by immigrant sex workers — in the United States, massage workers here are already using some of its strategies to connect with one another.

H, the Flushing woman who worked as a phone operator for a massage establishment, says that she is still in touch with other women in the massage business through social messaging apps. Workers share tips on businesses to avoid, and they can provide emotional support to each other even if they aren’t working in the same place.

“You know, for safety issues,” H said. “This is why we have so many [chat] groups — for recruiting [workers], for looking for places to work. [Someone] will be like, this is a bad boss, we’re not going there — something like that.”

Massage business jobs, as workers themselves have said, can be exploitative. But while Polaris, service providers and law enforcement debate solutions, women who work in massage establishments are making their own.

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Protesting ICE Courthouse Arrests Doesn’t Get NYC Prosecutors Off the Hook for Everyday Injustice

Brooklyn DA Eric Gonzalez (R, at the podium) and New York AG Eric Schneiderman (L) making an announcement about ICE courthouse arrests
Drew Angerer / Getty

Protesting ICE Courthouse Arrests Doesn’t Get NYC Prosecutors Off the Hook for Everyday Injustice


On February 14, Manhattan, Brooklyn and Bronx prosecutors stood in front of Manhattan Supreme Court to protest U.S. Immigration and Customs Enforcement (ICE) arresting New Yorkers involved in criminal cases.

The event followed growing protests from public defenders — including walk-outs — taking aim at ICE’s practice of staking out courthouses to locate targets for deportation.

According to a December 2017 report by The Fund for Modern Courts, arrests in courthouses by immigration authorities of people presumed to be undocumented increased fivefold in 2017 from the previous year.

But until their recent protest, district attorneys in New York have largely been silent about ICE courthouse crackdowns, though last fall Brooklyn DA Eric Gonzalez did describe the immigration enforcement agency seizing three men with no criminal records outside Brooklyn Criminal Court as “outrageous.”

ICE courthouse arrests present something of a sweet spot for elected district attorneys trying to burnish their bonafides as “progressive prosecutors” without having to address the obvious injustices they preside over on a daily basis inside courthouses.

District attorneys say that ICE arrests disrupt the public’s “access to justice.” They are not worried about the arrests, per se, but instead take issue with their location, arguing that courthouse arrests will discourage undocumented witnesses or victims of crimes from coming to court to help the prosecutors settle their cases.

This presumes that New York courthouses are places where justice is actually sought and that ICE is disrupting what is otherwise a fair and honest process.

Spend a single day in New York City’s low-level criminal courts — where most of the ICE arrests have occurred — and you can’t help but come away with an understanding that racism and prosecutorial overreach are the defining characteristics of the system.

Long lines — made up almost exclusively of people of color — snake outside of courthouses every day. The power prosecutors wield ensures that defendants very rarely see their day in court; 99 percent of cases are disposed of through plea agreements. More than 250,000 people are prosecuted in New York City courts each year, 7 million total since the advent of Broken Windows policing in the mid-1990s. Every eight minutes, a defendant is sent to Rikers Island from criminal court in New York — and if it were up to these prosecutors, the pace would be even quicker.

Most prosecutions end with lifelong consequences inhibiting a defendant’s ability to get a job, a loan for a car or school, an occupational license, access to public housing, or to retain custody of his or her children. These consequences are typically not considered as district attorneys grind their cases through the system.

District attorneys in New York perpetuate injustices in many other ways. Manhattan District Attorney Cy Vance has an abysmal approach to discovery practices — taking full advantage of an outdated state law in order to withhold evidence against people until, literally, the day before trial. Manhattan public defenders call this “trial by ambush.”

District attorneys have tremendous discretion on issues like bail, discovery and speedy trial, but in New York (and elsewhere), they frequently use this discretion for leverage to win their criminal cases — instead of in the service of justice. Statewide campaigns for legislative reforms are seen as the only way to actually bring the prosecutors in line.

Protesting ICE arrests at court also ignores the specific role that district attorneys play in putting the targets of ICE enforcement at risk. As ICE itself has made clear, it is mostly through the actions of police and prosecutors that it is able to locate people for deportation.

No one doubts the severe consequences of immigration enforcement, and ICE should clearly be shut down. But it requires real cognitive dissonance to believe that district attorneys are credible arbiters of what’s fair and just, especially within the courts in which they operate as the most powerful actor. ICE in New York courthouses should not be seen as an aberration, but as just one of the myriad negatively life-altering consequences that result from our excessively punitive and overreaching criminal justice system.

Nick Encalada-Malinowski is a social worker, organizer and writer. He lives in Brooklyn. The views and opinions expressed in this article are his and do not necessarily reflect the views of the Fair Punishment Project.

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