Penal Welfare and the New Human Trafficking Intervention Courts

73 Pages Posted: 8 May 2016 Last revised: 3 Nov 2016

Aya Gruber

University of Colorado Law School

Amy J. Cohen

Ohio State University (OSU) - Michael E. Moritz College of Law

Kate Mogulescu

The Legal Aid Society

Date Written: May 6, 2016

Abstract

In the fall of 2013, New York State’s chief judge, Jonathan Lippman, announced a “revolutionary” statewide initiative to create and implement Human Trafficking Intervention Courts (HTICs). The initiative occurred amidst a burgeoning consensus that prostitution is human trafficking and women who engage in prostitution are largely victims of exploitation and violence. Given the HTICs’ ambition to, in Lippman’s words, “eradicate the epidemic of human trafficking” and the convergent view of prostitution as trafficking, one might think that the HTICs are courts that prosecute traffickers, where victim-witnesses enjoy special protections. In fact, the HTICs are criminal diversion courts where mostly female defendants are prosecuted for prostitution offenses, but offered mandated services in lieu of criminal conviction and jail. The HTICs are thus a puzzle. Why have so many commentators heralded them as the model approach to prostitution/trafficking when they involve the arrest, prosecution, and even incarceration of prostitution defendants, who are presumed to be victims? A key piece of this puzzle is a phenomenon we call “penal welfare,” that is, a growing practice of using criminal courts to provision social services and benefits. In an era in which “mass incarceration” is a familiar term and tough-on-crime and broken windows ideologies are falling into disfavor, penal welfare enables entrenched institutions of criminal law to continue to function, despite a growing crisis in public confidence. Based on a qualitative empirical study of the HTICs, we argue that precisely because of their welfarist bent, the courts may sustain arrests and prosecutions of the presumptively victimized women they seek to protect, stunt the development of alternate forms of assistance and resources, and reinforce stigmatizing ideologies and discourses.

Keywords: prostitution, human trafficking, alternative courts, problem-solving courts, misdemeanor, sex-work, penal welfare

JEL Classification: K14, K41, K42, K49

Suggested Citation

Gruber, Aya and Cohen, Amy J. and Mogulescu, Kate, Penal Welfare and the New Human Trafficking Intervention Courts (May 6, 2016). Florida Law Review, Forthcoming; Ohio State Public Law Working Paper No. 349. Available at SSRN: https://ssrn.com/abstract=2776870 or http://dx.doi.org/10.2139/ssrn.2776870

Aya Gruber (Contact Author)

University of Colorado Law School ( email )

1070 Edinboro Drive
Boulder, CO 80309
United States

Amy J. Cohen

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Kate Mogulescu

The Legal Aid Society ( email )

199 Water Street
New York, NY 10038
United States

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