State Report Cards GRADING CRIMINAL RECORD RELIEF LAWS for SURVIVORS OF HUMAN TRAFFICKING Authors: Erin Marsh, Data & Research Associate, Polaris Brittany Anthony, Manager of Strategic Research, Polaris Jessica Emerson, Director, Human Trafficking Prevention Project, University of Baltimore School of Law Kate Mogulescu, Lead Attorney, Survivor Reentry Project & Assistant Professor of Clinical Law, Brooklyn Law School Acknowledgements: The authors would like to specifically thankKatrina Myers, Survivor Reentry Project Fellow, and Kevin Dunshee, Brooklyn Law School ‘19, for their comprehensive research assistance and policy analysis. We are also grateful to Beth Jacobs, Survivor Advocate/Leader and NSN Policy Champion, for her expert consultation and thoughtful reviews on this critical topic. We are also pleased to acknowledge the inspiring and compelling contributions of Ummra Hang and Kelly Wells, as well as the numerous other survivors who chose to remain anonymous. Finally, we would like to extend ample gratitude to the entire teams of the Survivor Reentry Project and of Polaris for their ongoing support through this ambitious endeavor. March 2019 STATE REPORT CARDS: Grading Criminal Record Relief Laws for Survivors of Human Trafficking 2 Contents Abstract . .. 4 Introduction . 4 The Burden of A Criminal Record: Why it Matters . 5 Varieties of Criminal Record Relief . 7 Criminal Record Relief Statutes . 8 History of Criminal Record Relief Statutes for Survivors . 10 State Level . 10 Federal Level . 12 When the Federal Government Fails Survivors . 12 Methodology for State Report Cards . 13 Grading Scale . 13 Point Values . 13 Category Descriptions . 14 Range of Relief . 14 Arrests and Adjudication Relief . 14 Offenses Covered . 15 Judicial Discretion . 16 Nexus to Trafficking . .. 17 Time Limitations and Wait Times . 17 Hearing Requirement . 18 Burden of Proof . 18 Official Documentation . 19 Confidentiality . 19 Additional Restrictive Conditions on Relief . 19 Additional Recommendations . 20 1 . Institute Comprehensive Data Collection Processes . 20 2 . Restore Federal Funding for Criminal Record Relief Legal Advocacy . 20 3 . Implement Provisions for Returns of Fines/Surcharges . 21 4 . Design Trauma-Informed Implementing Regulations . 22 5 . Allocate State and Local Resources for Outreach and Awareness for Survivors . 26 Overall Ranking Order . 28 Hall of Shame . 29 Potential/Proposed Legislation . 31 STATE REPORT CARDS: Grading Criminal Record Relief Laws for Survivors of Human Trafficking 3 Abstract Many survivors of human trafficking exploited in the commercial sex industry or other labor sectors have been arrested for offenses stemming from their victimization. Resulting criminal records – both arrest and court documents – then follow survivors and create barriers that impact their independence, stability, and safety. 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. Others include conditions that make relief inaccessible. This report analyzes existing state criminal record relief laws for survivors of human trafficking, grades the laws, and recommends best practices. The grading rubric was designed by researchers and practitioners and informed by the experiences of criminalized survivors of trafficking. The resulting “report cards” attempt to codify an ideal criminal record relief law for trafficking survivors. The hope is that this framework will serve as a blueprint for policymakers and advocates as to how best to draft, amend, or implement state law and that this will lead to more accessible relief for survivors across the country regardless of where their arrest or conviction occurred. Introduction Lisa* worked hard in college. She earned stellar grades and developed what she thought was a strong resume; she hoped she was well on her way to getting a great job that would launch her career. But the call never came. Lisa knew why. She knew it wasn’t fair. And she knew she could not do anything about it. Lisa is a survivor of trafficking. She was young, scared and broke when a man she met forced her to set up a “date” for commercial sex. The date turned out to be a sting operation by law enforcement, and Lisa was arrested for, charged with, and convicted of prostitution. This arrest haunted Lisa for nearly two decades until the state of Florida passed a law that allowed her to clear her criminal record and move forward with her life. Lisa, unfortunately, is not alone. While there is no nationwide data on how many trafficking survivors have a criminal record as a result of their victimization, we do know that people in trafficking situations are frequently arrested, detained, prosecuted, convicted, and, in some cases, incarcerated or deported without ever being identified as a victim of human trafficking by the criminal legal system. In 2016, the National Survivor Network (NSN) conducted a groundbreaking survey on the impact of criminal arrest and detention on survivors of human trafficking.1 They found that 91 percent of 130 trafficking survivor respondents reported having been arrested.2 Forty two percent reported that they were arrested as minors, and over 40 percent reported being arrested 9 times or more.3 “I do not choose to identify as a prostitute, but that was what the penal code said I am. Just knowing that the law has labeled me as such played a part in the trauma, and getting past this label is part of the healing.” Data from the National Human Trafficking Hotline generally supports these statistics. From January 1, 2015 - June 30, 2018, the National Hotline learned of 3,712 potential victims that had some interaction with law enforcement or the criminal legal system.4 This is the second most frequently reported access point for potential victims on the Hotline..6 *This story is a composite of countless survivor experiences with criminal records. STATE REPORT CARDS: Grading Criminal Record Relief Laws for Survivors of Human Trafficking 4 To be clear: many law enforcement agencies, lawyers, and judges are doing powerful and important work, educating themselves about human trafficking and putting in place policies and procedures that dramatically reduce the criminalization of trafficking victims. Additionally, contemporaneous reform efforts in the criminal legal system have made significant progress in reducing mass incarceration more broadly. Still, an overburdened criminal legal system, failing to identify victims at the time of their arrest, and policing that disproportionately impacts marginalized communities means that we, as a nation, still arrest and prosecute people who should instead be offered safety and resources. This especially applies to victims of human trafficking. Ideally, as the public becomes aware of this injustice and improvements to current policies continue, such arrests will become far less frequent. In the meantime, though, it is incumbent upon each state to put in place a purposeful and accessible system to help survivors clear their criminal records so that they can move past their trafficking experience. At present, we have a patchwork system which is different in every state and can be difficult to navigate, is unresponsive to the impact of trauma, or is simply unworkable. In some states, the law is too narrow. In others, there is no relief at all. “I used to obsess about my conviction, constantly replaying the situations and the people who trafficked me in my mind. I could never heal from my trafficking experience. But from the day my record was vacated, I never thought about it again.” The Burden of A Criminal Record: Why it Matters “When you have to put down prostitution on an application for a job or an apartment, there’s so much shame in that.” The first time trafficking survivors come into contact with law enforcement officers is often as an offender, and not as a victim. Sex trafficking victims are commonly arrested for prostitution, or for other crimes such as possession of weapons, drugs, or identity theft, all of which most likely have been orchestrated in some way by their trafficker. Labor traffickers may force their victims to manufacture or sell drugs or to move drugs from place to place. Labor trafficking victims can also be arrested for various offenses such as possession of false identification documents, financial crimes, or minor crimes like trespassing. Children who are trafficked for sex and/or labor are often charged with status offenses like truancy and running away. A criminal record has a profound impact on the ability of any individual to obtain future gainful employment and find affordable and safe housing. Employers and landlords often run background checks, and in some cases, this can result in the automatic elimination of individuals who have a criminal history from the applicant pool, while other employers and landlords who have the discretion to hire or house those with criminal records do not give the applicant the opportunity to provide information about the circumstances surrounding their arrests. In the NSN survey of 130 survivors, 73 percent of respondents reported losing or not receiving employment because of their criminal records.5 Furthermore, 58 percent of respondents suffered barriers to accessing safe and affordable housing due to their past criminal convictions.6