Clemency for War Criminals but not Survivors of Trafficking and Violence?
By Kate Mogulescu & Leigh Goodmark | May 30, 2019
President Donald Trump is reportedly considering granting clemency to accused U.S. war criminals, including military personnel who shot unarmed civilians and urinated on corpses. Many people are questioning Trump’s motives, values, and what this decision would communicate, while others have pointed out how harmful Trump’s previous clemency decisions have been.
There is a group of people seeking clemency from this administration who deserve an immediate and just response, however: survivors of trafficking, exploitation, and intimate partner violence who have been prosecuted and convicted, labeled sex offenders, and sentenced to long terms of incarceration. Advocacy efforts on behalf of criminalized survivors in state prisons resulted in the release of a number of women and girls, including Bresha Meadows and Cyntoia Brown. But the President is the only one who can free trafficking survivors from federal prisons.
There is a group of people seeking clemency from this administration who deserve an immediate and just response, however: survivors of trafficking, exploitation, and intimate partner violence who have been prosecuted and convicted, labeled sex offenders, and sentenced to long terms of incarceration.
The Human Trafficking Clemency Initiative (HTCI) formed in 2017 in response to a plea for help from a group of women incarcerated in the federal prison in Tallahassee, Florida. Each of these women was a victim of sex trafficking who was also convicted of crimes related to her own trafficking. They found each other in prison and recognized the similarities in their experiences: they were victims of trafficking, often prosecuted alongside their traffickers, sentenced to long terms in federal prison, facing registration as sex offenders when they were released. This shared experience galvanized them to contact organizations outside of prison walls.
The women found us. In response to their needs, and based on our research and advocacy experience, we created the Human Trafficking Clemency Initiative (HTCI), a consortium of law school clinics and organizations that seeks clemency for women who have been incarcerated for crimes related to their own trafficking and advocates for these women and others in similar situations. The work that we do with HTCI is grounded in our scholarship, which interrogates the choice to criminally prosecute survivors of gender-based violence.
The criminalization of gender-based violence has had a number of unintended consequences. The most problematic of those consequences has been the increase in the number of victims of violence arrested, charged, and prosecuted as a result of more stringent enforcement of laws against intimate parter violence and trafficking. The uniform application of these laws, without any appreciation of the context within which victims of violence may engage in the underlying conduct, produces unjust results.
The uniform application of [stringent enforcement] laws, without any appreciation of the context within which victims of violence may engage in the underlying conduct, produces unjust results.
As law professors working with students to represent clients convicted under these laws, we see in practice how the carceral focus of trafficking law and policy harms women who have been trafficked. We try to mitigate that harm through clemency. All of the petitioners that HTCI works with have a history of victimization and exploitation that is inextricably linked to the circumstances surrounding their cases. Many women were involved in the commercial sex industry and were trafficked into prostitution at least once, if not multiple times. Many had been trafficked with or tried to protect another victim, only to be charged with trafficking that person. Some were in intimate relationships with their traffickers and experienced physical and emotional abuse within those relationships. These compelling and complex elements were rarely explored during prosecutions. And almost all HTCI’s clients, sex crime victims themselves, confront social stigma, shame, and other barriers upon release, including difficulty finding employment and housing, because they must register as sex offenders.
HTCI’s cases demand attention due to their draconian sentences and the crushing impact sex offender registration has on survivors’ ability to transition home after serving prison sentences. Moreover, race, class, and gender intersect in HTCI’s cases in deeply problematic ways. The prevailing narrative of trafficking victimization features a young, white woman being exploited by a man of color. But women are disproportionately prosecuted for federal sex trafficking offenses; a woman is nearly twice as likely to be charged with trafficking as with general federal crimes. And our experience suggests that women of color are overrepresented among those prosecuted for trafficking; 82% of the individuals that HTCI works with are women of color. The systemic racism that infects the criminal legal system more generally is certainly at play in these cases.
Our experience suggests that women of color are overrepresented among those prosecuted for trafficking; 82% of the individuals that HTCI works with are women of color.
HTCI has filed six clemency petitions to date and it is currently preparing an additional ten. We started a wait list in January 2019 because we continue to hear from women in federal prisons convicted of crimes related to their own trafficking. All of these women learned about HTCI from other incarcerated women. Each of the filed petitions chronicles extensive exploitation and abuse, including histories of childhood physical and sexual abuse, neglect, and intimate partner violence. One petitioner was prosecuted as a trafficker because she was forced, under threats of extreme violence, to drive young women, whom she later learned to be underage, to places where they engaged in prostitution. Another petitioner was convicted of sex trafficking and sentenced to 14 years in prison a few months after her 18th birthday because she engaged in prostitution alongside two younger teenagers. A third petitioner’s intimate partner regularly beat her, broke her leg, and used violence and intimidation to force her to participate in his crimes.
The President’s clemency power could be put to productive use in releasing victims of sex trafficking from federal prison. A just response to the incarceration of survivors of trafficking would commute the sentences of survivors currently in prison and pardon those who have already completed their sentences. Because the President has the sole power to free trafficking survivors from federal prison sentences, he is responsible for ensuring that clemency reaches survivors forced to carry the weight of their own victimization. Without clemency, survivors do not receive justice, but instead face punishment, stigma, and the further diminishment of their life chances.
Kate Mogulescu is an Assistant Professor of Clinical Law at Brooklyn Law School, where she directs the Criminal Defense & Advocacy Clinic. Leigh Goodmark is a Professor of Law at the University of Maryland Frances King Carey School of Law, where she directs the Gender Violence Clinic, a clinic providing direct representation in matters involving intimate partner abuse, sexual assault, trafficking, and other cases involving gender violence.
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