New Analysis Grades States on Criminal Record Relief for Survivors of Human Trafficking
Report finds that the criminal justice system in the U.S. largely fails survivors
WASHINGTON, DC (March 14, 2019) — The American Bar Association’s Survivor Reentry Project, Brooklyn Law School, the University of Baltimore School of Law, and Polaris launched a joint report today rating all 50 states and D.C. on the effectiveness of their criminal record relief laws for survivors of human trafficking. The report, State Report Cards: Grading Criminal Record Relief Laws for Survivors of Human Trafficking, delves into the burdensome impact of a criminal legal system that too often penalizes survivors of sex and labor trafficking in America for crimes they were compelled to commit.
Across the United States, charges and convictions for crimes—ranging from prostitution and possession of weapons and drugs to identity theft and financial crimes—continue to have a profound impact on survivors’ attempts to obtain future employment and affordable and safe housing.
In 2010, New York became the first state to allow trafficking survivors to clear certain charges from their criminal records. In the years since, almost every state has enacted some form of criminal record relief for trafficking survivors. However, these laws vary greatly. Many are too limited to offer meaningful relief, such as allowing only minors to have records cleared. Others include conditions that make relief inaccessible by limiting it solely to prostitution charges. As the laws stand now, nearly all of the states receive failing grades.
Kate Mogulescu, Assistant Professor of Clinical Law at Brooklyn Law School, a national expert on post-conviction relief for trafficking survivors, and co-author of the report explained: “This project demonstrates how far state law has come in this area over the last several years. It also highlights how much more there is to do. The fact that the majority of states receive a failing grade should be a call to action for legislatures across the country. Criminalized trafficking survivors need the ability to shed the heavy burden of their criminal records. Many have carried this weight for years, if not decades. Access to criminal record relief should not depend on where survivors had the misfortune of facing arrest and prosecution. Remedies must be accessible and attainable and reflect a genuine commitment from lawmakers, prosecutors, court systems and advocates.”
Jessica Emerson, Director of the Human Trafficking Prevention Project at the University of Baltimore School of Law and co-author of the report explained the importance of criminal record relief in the lives of survivors, said: “Access to criminal record relief is a critical part of the healing process for criminalized trafficking survivors. Without it, the survivor’s trafficking experience can continue to dictate the trajectory of their life long after their trafficker’s control has ended. The restorative impact of this process simply cannot be overstated, and it is our hope that this report arms both survivor leaders and advocates alike with the tools they need to advocate for much needed change within their state.”
Beth Jacobs, survivor advocate and leader, said: “Having these convictions on our criminal backgrounds stops us from rehabilitating ourselves. How can we if we can’t work a job? Securing a job and excelling at that job increases one’s self esteem. It provides a way to become independent and proud. How can we secure this financial independence without a safe place to live? It is difficult to get up for work each day without a home. Please help us change this in each state by giving us the right to petition the court and explain our circumstances to a judge. We are not asking for a handout, we just want and need to work a job like every other American. The success of this project will impact so many lives.”
Bradley Myles, CEO of Polaris, said: “It’s deeply alarming that a survivor of human trafficking can be forced against their will by a trafficker to commit a crime, and our criminal justice system continues to unnecessarily penalize them for it without effective mechanisms to have those convictions erased. Once these convictions are on a survivor’s criminal record, they continue to have a severe impact on their daily life from housing and healthcare to student loans and employment.”
This comprehensive project evaluates states on a rubric measuring existing laws against an optimal criminal record relief law and recommended best practices. The type of legal remedies available to survivors varies widely, though states should all move toward a system that allows survivors to vacate all convictions and clear records of any trafficking-related crimes. Vacatur is akin to exoneration whereby a previous judgment against a survivor of human trafficking is nullified.
TRAFFICKING-RELATED CRIMINAL OFFENSES: Sex trafficking victims are commonly arrested for prostitution charges or for other crimes, such as possession of weapons, drugs, or identity theft—all of which have most likely been orchestrated in some way by their traffickers. Labor trafficking victims can also be arrested for crimes such as possession of false identification documents, financial crimes, or minor infractions such as trespassing. Children who are trafficked for sex and/or labor are often charged with status offenses like truancy and running away.
IMPACT: Criminal records have a profound impact on crucial areas of a survivor's life. Employers and landlords often run background checks and, in some cases, this can result in automatic elimination of individuals who have a criminal history.
- In a National Survivor Network (NSN) survey, 73 percent of respondents reported losing or not receiving employment based on their criminal records. The American Bar Association reports 80 to 92 percent of employers run background checks.
- Furthermore, 58 percent of the NSN respondents suffered barriers to accessing safe and affordable housing.
- Criminal records impact survivors who want to begin or continue their education but won’t be accepted as a result of their charges. Additionally, survivors can struggle to pay for that education when they are barred from financial aid or private loans. According to Brookings, between 60 and 80 percent of private institutions and 55 percent of public institutions require undergraduate applicants to answer criminal history questions during the application process.
- Criminal history can impact the ability of parents to retain custody of their children or bar them from accessing crucial government benefits like food stamps.
- According to the National Conference of State Legislatures, individuals with felony convictions lose their voting rights in 22 states.
HALL OF SHAME: Six states—Virginia, Alaska, South Dakota, Maine, Minnesota, and Iowa—have no criminal record relief for survivors of human trafficking. Four states—Georgia, Louisiana, Missouri, and Tennessee— have statutes that only apply to individuals who were trafficked as minors, which severely limits the number of survivors who can get help as the average age of entry for victims reported to the National Hotline between 2015 and 2018 was 19 years old. Other states have laws, but with problematic provisions within them. Arizona, for example, does not allow for record relief of convictions imposed after 2014, the year an affirmative defense became available on prostitution charges in the state. This restriction means survivors prosecuted after 2014 will be unable to seek post-conviction relief and forces them to assert an affirmative defense at the time of their initial prosecution when there are numerous reasons why they may not be able to. Idaho has a particularly extreme measure that requires a survivor to provide the identity of their trafficker, which, depending on a survivor’s situation, can put them in severe danger. Hawaii, Maryland, and Pennsylvania allow prosecutors to solely determine eligibility for relief, precluding courts from making an independent judicial determination.
Polaris is a leader in the global fight to eradicate modern slavery. Named after the North Star that guided slaves to freedom in the U.S., Polaris acts as a catalyst to systemically disrupt the human trafficking networks that rob human beings of their lives and their freedom. By working with government leaders, the world's leading technology corporations, and local partners, Polaris equips communities to identify, report, and prevent human trafficking. Our comprehensive model puts victims at the center of what we do – helping survivors restore their freedom, preventing more victims, and leveraging data and technology to pursue traffickers wherever they operate. Learn more at www.polarisproject.org. Follow Polaris on Facebook and on Twitter.