AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES FEBRUARY 11, 2013 RESOLUTION

Transcription

1 AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES FEBRUARY 11, 2013 RESOLUTION RESOLVED, That the American Bar Association urges federal, state, local, tribal, and territorial governments to aid victims of human trafficking by: a) Enacting and enforcing laws and policies that permit adult or minor victims of human trafficking to seek to vacate their criminal convictions, for offenses related to their prostitution or other non-violent offenses that are a direct result of their trafficking victimization; and b) Establishing and ensuring funding for programs designed to assist human trafficking victims who are seeking to vacate such convictions. FURTHER RESOLVED, That the American Bar Association urges legal service organizations, state and local bar associations, law school clinics, and other legal assistance providers to develop pro bono programs and provide pro bono representation to assist adult or minor victims of human trafficking in vacating convictions for offenses that are a direct result of their trafficking victimization.

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3 REPORT The Trafficking Protocol defines trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 1 In March of 2012 President Obama directed his Cabinet to redouble efforts to eliminate human trafficking or modern-day slavery. 2 While there are numerous government organizations and non-governmental organizations that publish data on human trafficking, the data can vary greatly depending on the methodology used and how human trafficking or modern slavery is defined for the study. 3 The following statistics about the number of people impacted by human trafficking are offered in this report in order to provide a general depiction of the extent of human trafficking. According to the International Labor Organization, it is estimated that there are 20.9 million victims of modern slavery around the world at any given time. 4 According to the U.S. Department of State s Trafficking in Persons Report, each year about 600,000 to 800,000 people are trafficked across international borders. 5 There are about 14,500 to 17,500 people trafficked into the United States annually. 6 Presently, most of the data available focuses on international trafficking and does not specifically estimate domestic trafficking within the United States. 7 However, one revealing statistic is that there are about 244,000 to 325,000 American youth who are at risk of sexual exploitation within the United States. 8 Adult and minor victims of human trafficking endure terrible and inhumane treatment, which results in lasting physical, emotional, and psychological scars. These victims are beaten, sexually assaulted, starved, imprisoned, threatened, and/or psychologically controlled. Often, victims of trafficking are arrested and convicted for prostitution and other related offenses. 9 Victims who manage to escape their trafficking situation must deal with criminalization and stigmatization from having a criminal record. As victims attempt to rebuild their lives, they face many social barriers; their criminal record prevents them from getting safe housing, decent jobs, 1 Jill Laurie Goodman & Dorchen A. Leidholdt, Lawyer's Manual on Human Trafficking: Pursuing Justice for Victims, available at (last visited Dec. 11, 2012) (citations omitted). 2 Tracy Russo, U.S. Department of Justice, Helping the Victims of Human Trafficking, THE JUSTICE BLOG, (last visited Dec. 11, 2012). 3 PBS Frontline, Sex Slaves: Estimating the Numbers, (last visited Dec. 11, 2012). 4 U.S. Department of State, Trafficking in Persons Report (June 2012), at 45, available at 5 U.S. Department of State, Trafficking in Persons Report, (June 2005), at 6, available at 6 Id. 7 Heather J. Clawson, et al., Human Trafficking into and within the United States: A Review of the Literature, August 2009, available at 8 Id. 9 Melissa Broudo & Sienna Baskin, Vacating Criminal Convictions for Trafficked Persons: A Legal Memorandum for Advocates and Legislators, URBAN JUSTICE CENTER, April 2012, available at 1

4 loans, and continuing with education. 10 Having already been victimized in brutal and terrifying ways, survivors of human trafficking do not need to be victimized again by their criminal record. Victims of human trafficking deserve a chance to create a new life for themselves and to become functional members of society. Thus, a solution is necessary to alleviate the impact of collateral consequences of convictions for survivors of human trafficking. Enacting and enforcing laws and policies that permit victims of human trafficking to seek to vacate their criminal convictions, for crimes related to their prostitution or other non-violent crimes that are a direct result of their trafficking victimization This resolution builds upon 103A that was adopted at the American Bar Association s 2011 Annual Meeting, which urges government authorities not to treat children who are the victims of human trafficking as criminals. This resolution expands the scope to include all victims of human trafficking. This resolution also builds on 102A that was adopted at the American Bar Association s 2010 Midyear Meeting, which urges governments to limit the collateral consequences of juvenile arrest, adjudications and convictions. This resolution expands the scope to include all victims of human trafficking and seeks to limit the collateral consequences of convictions for survivors of human trafficking through the enactment and enforcement of laws and policies which allow victims of human trafficking to vacate from their criminal record convictions for crimes of engaging in prostitution or soliciting themselves, loitering with the intent to engage in prostitution, or any other non-violent crimes that are a direct result of or are a direct result of their trafficking victimization. Presently, survivors of trafficking must deal with the collateral consequences of convictions that were the result of their trafficking victimization. Many potential employers, colleges, and loan providers require the disclosure of any prior convictions; these prior convictions continue to victimize survivors of trafficking by denying them opportunities as they struggle to rebuild their lives. 11 By allowing victims of human trafficking to remove convictions from their record, it ensures that victims do not miss out on important opportunities and allows victims the chance to lead normal lives. In 2010, New York became the first state to address this issue by enacting New York Criminal Procedure Law (1)(i). 12 This legislation provides victims of human trafficking with a procedure to vacate convictions for prostitution related offenses that occurred while the individual was a victim of trafficking. 13 In 2011, Illinois, Maryland, and Nevada passed similar legislation. 14 Currently, California, Pennsylvania, Hawaii, Vermont, and Virginia are considering similar bills. 15 With these encouraging developments, this resolution aims to 10 Polaris Project, Human Trafficking Legislative Issue Brief: Vacating Convictions Resulting from Sex Trafficking, at 1, available at 11 Id. 12 N.Y. [CRIM. PROC.] LAW (1)(i) (2010). 13 Id. 14 See 725 ILL. COMP. STAT. 5/ (2011); MD. CODE ANN., [CRIM. PROC.] (2011); NEV. REV. STAT (2011). 15 Polaris Project, Human Trafficking Legislative Issue Brief, supra note 7, at 1. 2

5 stimulate discussion on this important issue and urges governments to enact laws and policies similar to those enacted by New York, Illinois, Maryland, and Nevada. Establishing and ensuring funding for programs designed to assist human trafficking victims who are seeking to vacate such convictions Vacating convictions laws would offer victims of human trafficking a significant remedy; it would allow survivors of trafficking to move forward with their lives and leave the reminders of their victimization in the past. In order for the existence of this remedy to have a meaningful impact, two issues must be addressed. First, legal advocates must be ready, willing, and able to assist survivors of trafficking in bringing motions to vacate convictions. As this is a new practice area, it would involve a significant investment of time by legal advocates undertaking these cases. 16 Legal advocates would have educate themselves, the courts, and prosecutors; legal advocates would have to gather evidence and formulate new arguments, all while supporting clients who are hesitant about revisiting memories of their trafficking victimization. 17 Second, many survivors of human trafficking live in poverty and do not have the financial resources to hire attorneys. 18 These two issues demonstrate why access to legal services and adequate legal assistance are crucial and essential for vacating convictions laws to have a meaningful impact. Consider that in the first year that New York Criminal Procedure Law (1)(i) was in effect, only three survivors of human trafficking successfully had their convictions vacated. 19 Since legal assistance, education, and funding are important, this resolution urges governments to establish and ensure funding for programs designed to assist victims of human trafficking who are seeking to vacate their convictions that are incident to their trafficking victimization. Similarly, this resolution urges various legal assistance providers to develop pro bono programs to assist victims of human trafficking in vacating convictions that are incident to their trafficking victimization. Encouraging legal service organizations, state and local bar associations, law school clinics, and other legal assistance providers to develop pro bono programs and provide pro bono representation to assist victims of human trafficking in vacating convictions for offenses that are a direct result of their trafficking victimization Although the NGOs handling trafficking cases in the United States do yeoman s work, there are still some legal issues that require outside assistance. To resolve these issues, trafficking victims in the United States desperately need pro bono attorneys Broudo & Baskin, supra note 9, at Id. 18 Id. 19 Hugh Ryan, Trafficked Women s Second Chance, NEWSWEEK/ DAILY BEAST, Oct. 14, 2011, 20 Martina E. Vandenberg, Giving Back: Combating Human Trafficking, 29 GP SOLO MAGAZINE 5 (Sep./Oct 2012), available online at ing.html (last visited Dec. 11, 2012). 3

6 The 2009 Final Report on Human Trafficking Services, conducted by the U.S. Department of Human Health and Human Services, specifically identified the use of pro bono legal services as a promising approach to assist victims of human trafficking. 21 On September 26, 2012, in recognition of the need for the development of pro bono programs for victims of human trafficking, the Office of Justice Program s (OJP) Office for Victims of Crime (OVC) funded the Legal Assistance Capacity Building Initiative. Through this initiative, OVC will work with organizations throughout the country to identify, train, mentor and provide oversight of attorneys who volunteer to provide pro bono legal assistance, including immigration assistance, to crime victims. 22 In the OVC press release, Mary Lou Leary, the Acting Assistant Attorney General for the Office of Justice Programs, commented I am proud of the department s efforts to support the victims of this terrible crime, which dehumanizes and traumatizes its victims and is often hidden in plain sight in communities across this nation. Respectfully submitted, William Shepherd Chair, Criminal Justice Section February U.S. Department of Human Health and Human Services, Study of HHS Programs Serving Human Trafficking Victims, at 37 (Dec. 2009) (noting that while this resulted in a larger pool of affordable and appropriate service providers for clients, it did require significant training and monitoring according to providers). 22 THE JUSTICE BLOG, supra note 2. 4

7 GENERAL INFORMATION FORM Submitting Entity: Submitted By: Criminal Justice Section William Shepherd, Chair 1. Summary of Resolution(s). This Resolution urges lawmakers to aid adult and minor victims of human trafficking by enacting and enforcing laws and policies that permit victims of human trafficking to vacate their criminal convictions for crimes related to prostitution or other non-violent crimes that are a direct result of their trafficking victimization; encourages legal assistance providers to develop pro bono programs to assist victims of human trafficking to vacate convictions for offenses that are a direct result of their trafficking victimization; and calls for lawmakers to help establish and fund programs to assist victims with the process. 2. Approval by Submitting Entity. This Resolution was approved by the Criminal Justice Section Council by e-vote on Monday October 12, Has this or a similar resolution been submitted to the House or Board previously? This resolution is similar to Resolution 103A that was adopted at the American Bar Association s 2011 Annual Meeting. Resolution 103A urges government authorities not to treat children who are the victims of human trafficking as criminals. This resolution is similar to Resolution 1023A that was adopted at the American Bar Association s 2010 Mid-Year Meeting. Resolution 102A urges governments to limit the collateral consequences of juvenile arrest, adjudications and convictions. 4. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? This resolution would expand on 103A that was adopted at the American Bar Association s 2011 Annual Meeting. 103A urges government authorities not to treat children who are the victims of human trafficking as criminals. However, this resolution is different in that it includes all victims of human trafficking. This resolution would expand on 102A that was adopted at the American Bar Association s 2010 Mid-Year Meeting. However, this resolution seeks to limit the collateral consequences of convictions for survivors of human trafficking and specifically calls for the enactment and enforcement of laws and policies which allow victims of human trafficking to vacate from their criminal record convictions for crimes of engaging in prostitution or soliciting themselves, loitering with the intent to engage in prostitution, or any other non-violent crimes that are a direct result of or are a direct result of their trafficking victimization. 5

8 5. What urgency exists which requires action at this meeting of the House? Individuals who have managed to escape their trafficking situation are currently stigmatized by having a criminal record, consisting of conviction that are a direct result of or are a direct result of their trafficking victimization. This Resolution will assist these victims to begin rebuilding their lives, without this criminal record preventing them from getting safe housing, decent jobs, loans, and continuing with education. 6. Status of Legislation. (If applicable) Not Applicable 7. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. The policy will be distributed to various criminal justice stakeholders in order to encourage and facilitate legislative action. The policy will also be featured on the Criminal Justice Section website and in Section publications. 8. Cost to the Association. (Both direct and indirect costs) None 9. Disclosure of Interest. (If applicable) None 10. Referrals. At the same time this policy resolution is submitted to the ABA Policy Office for inclusion in the 2013 Midyear Agenda Book for the House of Delegates, it is being circulated to the chairs and staff directors of the following ABA entities: Standing Committees Legal Aid and Indigent Defendants Special Committees and Commissions Commission on Immigration Commission on Youth at Risk Sections, Divisions Government and Public Sector Lawyers Division Individual Rights and Responsibilities International Law Judicial Division Litigation State and Local Government Law Young Lawyers Division Centers Center for Human Rights Center on Children and the Law 6

9 Task Forces Task Force on Human Trafficking 11. Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and address) Sara Dill Law Offices of Sara Elizabeth Dill 35 E Wacker Dr 9th Floor Chicago, IL Phone: (312) saraedill@gmail.com William Shepherd Holland & Knight LLP 222 Lakeview Ave Ste 1000 West Palm Beach, FL Phone: (561) william.shepherd@hklaw.com 12. Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and address.) Stephen Saltzburg George Washington Univ Law School 2000 H St NW Washington, DC Phone: (202) ssaltz@law.gwu.edu Neal Sonnett Neal R Sonnett 2 S Biscayne Blvd Ste 2600 Miami, FL Phone: (305) nrs@sonnett.com 7

10 EXECUTIVE SUMMARY 1. Summary of the Resolution This Resolution urges lawmakers to aid victims of human trafficking by enacting and enforcing laws and policies that permit victims of human trafficking to vacate their criminal convictions for crimes related to prostitution or other non-violent crimes that are a direct result of their trafficking victimization; encourages legal assistance providers to develop pro bono programs to assist victims of human trafficking to vacate convictions for offenses that are a direct result of their trafficking victimization; and calls for lawmakers to help establish and fund programs to assist victims with the process. 2. Summary of the Issue that the Resolution Addresses Victims of human trafficking have endured horrendous treatment, which will affect them both mentally and physically. The collateral consequences of non-violent crimes that are a direct result of or are a direct result of their trafficking victimization can prevent human trafficking victims from enjoying housing, jobs, loans and education as they attempt to rebuild their lives. 3. Please Explain How the Proposed Policy Position will address the issue The Resolution will alleviate the collateral consequences of convictions for survivors of human trafficking and establish and ensure funding for programs designed to assist those who are seeking to vacate the convictions of victims that are incident to their trafficking victimization. 4. Summary of Minority Views None are known. 8