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Proposed Federal Trafficking Legislation Has Surprising Opponents: Advocates Who Work With Trafficking Victims

Proposed Federal Trafficking Legislation Has Surprising Opponents: Advocates Who Work With Trafficking Victims

Congress is marking “National Slavery and Human Trafficking Prevention Month” by considering major anti-sex trafficking legislation in both houses. The bills use different approaches but would both target websites, such as Backpage, where sexual services are advertised.

Yet neither bill will result in justice for victims of human trafficking, anti-trafficking advocates and service providers told The Appeal. If passed, they say, the legislation stands to do more harm than good by failing to distinguish between trafficking victims and sex workers, eliminating sex workers’ source of income, and hampering anti-trafficking investigations.

The Senate bill, SESTA (Stop Enabling Sex Traffickers Act), which has 66 co-sponsors, was introduced by Ohio Republican Rob Portman, who last year held a Senate hearing with Missouri Democrat Claire McCaskill on Backpage and its alleged role in sex trafficking. (Just before the hearing, Backpage closed its “adult” ads section; those ads then migrated to their dating section.)

If enacted, SESTA would amend the 1996 Communications Decency Act (CDA), a provision of which — Section 230 — protects website operators from most types of legal liability for content created by their users. SESTA, Sen. Portman said in a January floor speech, “provides justice for victims of online sex trafficking because they’ll have the opportunity to sue — hold these websites accountable that knowingly facilitate crimes.”

The House bill, FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act), would update the century-old Mann Act, which prohibited prostitution across state lines. Introduced by Rep. Ann Wagner (R-MO), FOSTA was later amended by House Judiciary Chairman Bob Goodlatte (R-VA), who expanded its scope from sex trafficking to all prostitution. It introduces a new federal crime: using or operating “a means of interstate or foreign commerce with the intent to promote or facilitate the prostitution of another person.”

According to Wagner, FOSTA is about “putting an end to these websites” — like Backpage, which has already successfully defended itself against state civil and criminal suits under the CDA’s current language. Operators of any website where sexual services are advertised could be charged under the new federal criminal statute proposed by FOSTA. Like SESTA’s backers, FOSTA’s proponents say this would make it easier to take legal action against websites like Backpage, though, unlike SESTA, FOSTA does not open up the path for civil suits, and it encompasses websites that facilitate prostitution, not just sex trafficking.

The legislation is meant to protect victims of sex trafficking, but many advocates who work directly with people who have been trafficked oppose both bills. “They think that shutting down any online platform is going to miraculously end human trafficking,” Jessica Peñaranda, director of strategic initiatives at the Sex Workers’ Project, told The Appeal. “They think it’s an easy way to do this.” But real solutions aren’t so easy, she says.

The position she and other advocates are voicing against SESTA and FOSTA is one that tends to get drowned out. Typically, high-profile anti-trafficking lobbying groups that lead the charge for federal legislation, such as World Without Exploitation (led by former Brooklyn Assistant District Attorney Lauren Hersh), or Christian right groups like the National Center on Sexual Exploitation (formerly known as Morality in Media), oppose not only sex trafficking but sex work itself.

“As long as there is a global sex trade, ours will be an unsafe, unjust world,” World Without Exploitation wrote in a statement supporting SESTA. But there are other anti-trafficking advocates — including trafficking victims and survivors — who do not oppose sex work, but who are seldom heard from.

Laura LeMoon, an anti-trafficking and sex workers’ rights advocate, wants to change that. She worries that legislation like SESTA and FOSTA, though ostensibly meant to help trafficking victims, is based on dangerous presumptions about the sex trade, which can actually harm both sex workers and people who are trafficked. “It’s the assumption that if we go after all prostitution, we will by definition get some trafficking in there anyway, since it’s all ‘exploitative,’” she explains. LeMoon has been trafficked and later engaged in sex work. “I know that from my experience being on Backpage,” she says, “you can’t just assume everybody’s experience in one industry.”

Sex work and trafficking are not the same thing, LeMoon and other advocates explain. At different points in their lives, some people choose sex work or are forced into sex work, or do sex work because they have few other choices. Like LeMoon, some people who have been trafficked may also use Backpage to advertise independently as sex workers. If Backpage closes down, they and other sex workers could be pushed into more dangerous situations.

SESTA supporters say the Communications Decency Act (CDA) shields websites like Backpage from most types of legal liability, making them a safe haven for trafficking. But Alexandra Levy, adjunct professor of law at Notre Dame Law School, where she teaches about human trafficking, points out that the CDA would not protect Backpage operators from federal criminal prosecution if its operators were themselves facilitating trafficking. “Section 230 as it is currently written would not prevent a federal prosecution of Backpage, if there was a case to be made,” she says. “And that’s a big if.”

If SESTA succeeds in unleashing a flood of suits against Backpage, they could be so costly as to put Backpage out of business. Some of the bill’s opponents say that would not only put sex workers out of work, but it would also make investigations harder for law enforcement and advocates who use Backpage to identify trafficking victims. What makes Backpage useful to sex workers also makes it a valuable investigatory tool: If law enforcement wanted to invent a tool that tracked people who were trafficked, and allowed them to communicate their location without alerting their traffickers, Levy has argued, it would look a lot like Backpage.

Megan Mattimoe, executive director and staff attorney at Advocating Opportunity, which assisted 150 victims of trafficking this past year, says she has seen Backpage provide information about trafficking victims captured in ads along with data on advertisers to aid in prosecutions. “In our cases,” she says, “Backpage not only complied with prosecutors’ requests, but they would also send someone to trial to testify that those business records were authentic.” Since Backpage closed its adult advertising section in January 2017, Mattimoe says, her organization has seen “victims advertised on sites housed outside the U.S.,” where federal prosecutors have neither subpoena power nor Backpage’s cooperation.

As investigations and prosecutions have made it more difficult for Backpage to operate, says LeMoon, who now works with SWOP Behind Bars, assisting sex workers who are incarcerated, life has become more difficult for both sex workers and survivors of trafficking. “It’s had a real disproportionate effect on low-income sex workers, sex workers of color, trans sex workers, sex workers who are most at the margins,” she says, “because we’re the ones who really rely on Backpage as a means of income.” Legislation like SESTA and FOSTA would put these workers at further risk.

Though it has sufficient votes to pass, SESTA has yet to come to a vote on the Senate floor. In November, Democratic Senator Ron Wyden placed a hold on the bill, warning, “I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals,” adding that it could also “stifle innovation” on the internet. FOSTA’s fate is equally uncertain: Though tech companies like Apple and interest groups like the Concerned Women of America, a Christian anti-feminist organization, support it, many of the anti-trafficking lobbying groups who support SESTA (like World Without Exploitation) openly oppose FOSTA, which they say was crafted without their input and, unlike SESTA, lacks a provision for a civil right of action.

Advocates who work directly with survivors oppose both pieces of legislation, but for different reasons than the lobbying groups. “There’s nothing in there to help victims at all,” says Mattimoe. Survivors of trafficking may be able to bring a civil suit against a website such as Backpage, but few survivors have the resources to do so — another factor SESTA does not address.

Both SESTA and FOSTA also fail to address the immediate needs of survivors. Peñaranda of Sex Workers’ Project, who assists both sex workers and people who have been trafficked, says her clients already struggle to find work and fear being treated as criminals for past or current involvement in commercial sex. When websites such as Backpage are criminalized, Peñaranda says, “it’s forcing the hand of survivors” — to choose safety, or survival.

Thanks to Burke Butler.

Massachusetts and New York Prosecutors’ Bail ‘Reforms’ Permit Business as Usual

Middlesex DA Marian Ryan

Massachusetts and New York Prosecutors’ Bail ‘Reforms’ Permit Business as Usual

On January 11, Marian Ryan, the District Attorney of Middlesex County, Massachusetts, proudly announced that her office would stop requesting cash bail in “non-violent, low-level” cases. “Recognizing that even a short period of incarceration can cause tremendous upheaval in one’s life, including loss of employment and housing,” Ryan proclaimed, “this practice seeks to prevent incarceration solely due to a lack of financial resources.”

The next day, however, a man charged in Middlesex County with drug possession and larceny, both of which are presumably “non-violent” and “low-level” under DA Ryan’s definition — her office did not respond to a request to confirm — asked the Massachusetts Bail Fund to pay $500 because he could not afford his bail. But it was DA Ryan’s sweeping announcement that made the news that day, not the bail request that immediately undercut her lofty promises.

A similar scene unfolded that very same week in New York, where newly re-elected Manhattan DA Cyrus Vance announced that his office would no longer seek bail in certain misdemeanor cases. “A systemic reliance on bail for low-level offenses is out of step with a reformed, 21st-century justice system,” he told his constituents. This announcement spread across the news, with papers praising Vance and claiming his plan would “end cash bail for most low-level offenses.” In April, Brooklyn DA Eric Gonzalez made a similar pledge.

But advocates in Massachusetts and New York fear that the courtroom reality will be very different from the reforms these DAs so forcefully promise.

“I’m skeptical that the proposed reforms will benefit all New Yorkers who are harmed by the bail system,” Brooklyn Community Bail Fund Director of Operations Terrence Bogans, also a former public defender, told The Appeal. “I’ve seen these District Attorneys ‘decriminalize’ offenses such as marijuana possession and jumping the turnstile, only to continue seeing low-income people of color prosecuted and have bail set for those very charges.”

Sure enough, this past week, the Fund — which, like several similar funds run by non-profits in cities around the country, pays for poor defendants to get out of jail — reported paying nine misdemeanor bails.

In counties that use money bail, a prosecutor asks the judge to set a bail amount that a person accused but not convicted of a crime must pay to get out of jail before their trial. If that person has the money, he or she gets out. If not, he or she sits in jail.

Cash bail proponents — including, incidentally, the bail bondsmen who make a killing off of poor defendants’ failure to pay — claim this system is necessary to ensure court appearances, but studies show this is misleading. In Washington, D.C., where there is no cash bail, 90 percent of people appear for their court dates. Meanwhile, indiscriminately caging all people who face criminal charges results in lost jobs, personal instability, and decreased public safety. This system of wealth-based detention is now under assault, with attacks coming from legislatorscelebrities, and grassroots powerhouses like Color of Change and Just Leadership.

But while Ryan and Vance are latching onto the rhetoric of criminal justice reformers, their bail “reforms” permit business as usual. Prosecutors in their counties can still ask judges to set bail amounts that poor people cannot pay, as just occurred in the Middlesex courthouse as Ryan announced her new policy. The DA’s office did not respond to a request for comment on that bail request.

Vance’s policy, too, is riddled with exceptions that contradict the no-bail rule and rubber-stamp DAs punishing the unconvicted. If police arrest someone for a misdemeanor who has other misdemeanor charges pending — even as minor as possession of marijuana or drug paraphernalia — the DA can ask for cash bail. This exception has little to do with the likelihood of returning to court; Vance is simply allowing his prosecutors to ask for jail time to punish poor people with multiple arrests. In New York, where police disproportionately target people of color, this will mean poor black and brown people disproportionately caged pre-trial.

“Creating a loophole that permits the use of monetary bail simply because someone has multiple open misdemeanor cases ensures that the over-policed communities will be the least likely to benefit” from Vance’s policy, says Josh Norkin, coordinator of the Legal Aid Society’s Decarceration Project.

New York DAs can also ask for cash bail if someone charged with a misdemeanor was convicted in the past of certain felonies, like third-degree robbery, or a misdemeanor sex crime, or is on probation or parole, even if he or she has never missed a court date in the past. This too has little to do with his likelihood of returning to court, but it does ensure more people of color will remain locked up — because they have been over-policed and disproportionately saddled with criminal records. And while some of these named felonies, like third-degree robbery, may seem serious at a glance or like a threat to public safety, their labels can be misleading. Third-degree robbery is forcibly stealing property and can include crimes like taking a cell phone.

Perhaps the broadest loophole that appears in both of the new policies is the one that permits prosecutors to seek bail whenever they believe they could, after conviction, obtain more than a 30-day sentence in New York, or any jail sentence in Middlesex. But at such an early stage of the case, when the defendant seeks release pending trial, prosecutors have done little investigation into the case’s facts, the defendant’s prior record, or mitigating evidence. Any sentence within the maximum range is possible, and even the smallest case, like turnstile jumping, will allow for more than a 30-day sentence.

Ryan has otherwise provided few guidelines to attorneys, stating only that prosecutors should not request bail for “low-level, non-violent” offenses. These terms have no legal meaning; their definitions appear nowhere in the state statute. If a person is found with a knife in his or her pocket or grabs a cell phone from someone’s hand, is it a violent offense? Atara Rich-Shea, the Massachusetts Bail Fund’s director of operations and a former public defender, believes Ryan has kept the policy vague to allow prosecutors to continue along as before. “[DAs know] the definition of ‘nonviolent’ or ‘low level’ is a murky one,” she says, “that they can make up as they go along.”

Critically, neither Ryan nor Vance nor Gonzalez has publicly announced oversight mechanisms to ensure that line prosecutors follow the new policies. None of them has publicly promised to track prosecutors’ bail requests or provide data to the public. It will be up to those in the courtroom — defense attorneys or bail fund representatives — to alert the public when District Attorneys deviate from their plans.

Experiences described by advocates in Brooklyn show how easy it is for prosecutors to seek cash bail. Bogans from the Brooklyn Community Bail Fund reports that the fund regularly posts bail in misdemeanors where people are too poor to pay. Since April, Bogans told The Appeal, when Brooklyn DA Gonzalez announced his reforms, “our cases aren’t down, we haven’t changed our procedures, and we are still paying the same amount of bail every day.”

But the biggest flaw with the DAs’ policies is the premise that cash bail is necessary at all. Notwithstanding their sweeping pronouncements about the harm of wealth-based detention, Vance, Ryan, and Gonzalez are still comfortable incarcerating people who haven’t been convicted of crimes simply because they cannot afford bail, while releasing people who can. The DAs may also be susceptible to pressure from the bail industry; Gonzalez received $7,500 in campaign contributions from one bail bond company, though he later reportedly returned the donations.

These DAs are hiding behind popular reform rhetoric, but they are miles behind the real reform work being demanded by groups like the Decarceration Project in New York and Color of Change, who advocate for the elimination of the cash bail system.

Just last week, the New York City comptroller issued a report demanding an end to commercial bail, calling it a way of “further putting poor families into poverty.” New York Governor Andrew Cuomo, hardly known as a criminal justice reformer, is pushing a bill mandating the release of nearly all those accused of misdemeanors or non-violent felonies, allowing holds only for those who pose a flight or safety risk after they receive due process. Bogans of the Brooklyn Community Bail Fund puts it succinctly: “What advocates are demanding is an end to this unjust practice.”

Perhaps these newly announced policies will lead to meaningful improvements in the bail system. But unless backed by real action and transparency from DAs like Vance, Ryan, and Gonzalez, these soaring promises of reform lure the public into a false sense that the criminal justice system is improving. Meanwhile, as always, people are caged simply because they are poor. Fortunately, there are on-the-ground advocates like Rich-Shea of the Massachusetts Bail Fund to hold prosecutors accountable. “DAs,” she says, “work for us.”

Thanks to Burke Butler.

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Philadelphia to Make History with Nation’s First Supervised Injection Facility

A cross in the backyard of a shelter in Philadelphia’s Kensington neighborhood
Spencer Platt / Staff

Philadelphia to Make History with Nation’s First Supervised Injection Facility

For decades, Philadelphia held the dubious honor of hosting America’s largest open-air heroin market in a tangle of pockmarked streets on the city’s north side, known as the “Badlands.”

On Tuesday, less than two weeks after Pennsylvania Governor Tom Wolf declared the overdose crisis a public health emergency, city officials, including District Attorney Larry Krasner and Police Commissioner Richard Ross, announced they’re ready to put Philadelphia on the map as the first municipality in America to open a supervised injection facility (commonly referred to as a SIF), where IV drug users can shoot up using sterile equipment under the watchful eye of trained medical personnel. The goal, they say, is to save lives and improve communities impacted by public drug use through a concept known as harm reduction.

At an afternoon press conference packed with media, community stakeholders, and representatives of Philadelphia’s harm reduction community, policy advisors to Democratic Mayor Jim Kenney explained the administration’s rationale.

“These are unprecedented times and we are taking unprecedented steps,” said Philadelphia Managing Director Michael DiBerardinis, explaining that the city will encourage the private sector to launch “one or more Comprehensive User Engagement Sites,” or CUES — a term the city chose over SIF to emphasize the additional mission of offering clients recovery options like rehab and social services.

“We don’t see these sites as solely for supervised injection,” said DiBerardinis’s first deputy, Brian Abernathy. “They will serve as pathways to get people into treatment.”

In its push to be first, Philadelphia joins a growing list of cities and states — including Seattle, New York and Vermont — where policymakers have proposed supervised drug use as a means of tackling runaway overdose fatalities.

Some municipalities, like Ithaca, NY, are looking to their state legislatures to pass SIF-friendly bills. Others, like King County, WA, have chosen to act alone, even in the face of staunch opposition. But even in cities where supervised injection has been approved by local governments, like San Francisco, the process of siting and funding a working SIF has been slow.

Philadelphia is taking a different approach by leaving it up to private organizations to make the first move on supervised injection. This not only skirts bureaucratic hurdles associated with approving city funding, but avoids the risk of contentious public hearings, such as those held in Boston last June.

Without direct city involvement, a dedicated team of activists could raise its own money and conceivably set up shop tomorrow, with the imprimatur of both the mayor and District Attorney, who has vowed not to prosecute SIF workers. A local harm reduction group, SOL Collective, has already announced its intention to engage the city in talks about opening a site.

This represents a shift for the city, which last summer shut down a secluded camp situated beside a stretch of railroad tracks in North Philadelphia known as “El Campamento.” Hundreds of IV drug users found temporary sanctuary at the camp, which was supplied with a steady stream of clean syringes and doses of the overdose-reversal drug naloxone by harm reduction groups from as far away as New York. The camp, which had evolved organically and was being maintained exclusively by drug users, experienced just 17 overdosesover a 12-month period, according to the medical examiner’s office, compared to more than 900 citywide.

But that is not the story Dr. Oz chose to tell when he visited El Campamento in April 2017. Instead, his bleak portrait became a source of embarrassment for the Kenney administration, which then forced the property’s owner, Conrail, to fence it off. The displacement of El Campamento angered some Philadelphia residents, as drug users began moving into more populated areas. As of Tuesday’s announcement, several hundred users remained camped out along three major thoroughfares on the edge of the Badlands, encroaching on newly gentrified neighborhoods to the south and east.

When told of the city’s decision, most drug users approached by The Appeal said they would gladly use a CUES facility, as long as it was close to where they buy their drugs. This issue is lost on some critics of CUES, such as Councilwoman Maria Quiñones Sánchez, who supports supervised injection in principle but objects to CUES because it would allow facilities to be located in her district, which includes the Badlands.

But users say that’s exactly where they should be. “Some people won’t even walk two blocks before they drop down for a shot, especially if they’re sick,” explains Mike, a homeless heroin user.

City officials evolved on the SIF issue after a November trip to North America’s first supervised injection facility, InSite, in Vancouver, Canada. Research shows that the introduction of supervised injection there in 2003 led to a 35% decrease in overdose fatalities in the city. It also improved overall health outcomes for IV drug users, and led to an increase in addicts entering treatment.

A Philadelphia study commissioned by the Kenney administration released this week found that CUES could save the city up to $100 million a year in healthcare costs and fatalities.

But opponents wasted little time attacking the idea.

On Wednesday, Pennsylvania Speaker of the House Mike Turzai (R-Allegheny) — who is challenging Wolf for the governorship in November — issued a statement condemning the plan. “Philadelphia’s supervised drug addiction-enabling plan is misguided and a violation of state and federal law,” he said. “I urge Gov. Tom Wolf and federal authorities to enforce the law.”

Pennsylvania’s Attorney General, Josh Shapiro, had already gone on record against SIFs in November, saying, “There is no safe way to inject heroin, fentanyl or carfentanil into your system.”

In fact, fentanyl is one of the three most common opioid analgesics used to treat postoperative pain and is employed safely every day in hospitals across the U.S. And studies show that medically prescribed heroin is not only a safe alternative to other opioid maintenance drugs, it is also more cost-effective and leads to better treatment outcomes.

Meanwhile, the city’s paper of record, the Philadelphia Inquirer, provided cover for officials like Turzai and Shapiro opposed to CUES by suggesting that CUES could be seen as “a dangerous liberal experiment that threatens law and order, in a similar way that so-called sanctuary cities have fueled the immigration debate.”

One official who was conspicuously absent from Tuesday’s announcement was Mayor Kenney himself, who, rather than join his administration in making harm reduction history, was across the street at City Hall, flanked by life-sized replicas of WWE wrestlers for a photo op declaring “Royal Rumble Week 2018.” The Mayor said he wasn’t aware of the press conference, while an aide blamed a scheduling conflict. While he may have intentionally avoided the spotlight, the mayor did issue a statement of support.

“Philadelphia’s fatal overdose rate is the worst in the nation among large cities, and incidents of overdose have steadily increased to an alarming degree,” the mayor said. “I applaud the work of the Task Force and city leadership in taking this bold action to help save lives.”

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