After just a few years in operation, Delaware's Human Trafficking Court is shutting down. The court's rise and fall offers valuable lessons for similar systems across the country and shines a light on how trending problems lead to stupid policy—something those in the throes of the "opioid epidemic" panic would do well to remember.
The court was killed by Judge Alex Smalls, chief of Delaware's Court of Common Pleas, citing a plan to consolidate several community court programs into one multipurpose court. The shift will save money and streamline responses to cases with a social-service component, said Smalls.
But the trafficking court's closure goes beyond simple bureaucratic shuffling. It comes following a 2016 report from the Delaware Criminal Justice Council, which found less than a third of people who started the alternative-to-jail program actually completed it and that there was "little evidence to suggest the defendants of this court are the subjects" of sex-trafficking enterprises.
Delaware's News Journal describes the Human Trafficking Court as "a special treatment court for adult prostitutes" and said Smalls' decision to close it has "riled trafficking victims advocates." These advocates argue that "free will is an illusion," writes Margie Fishman, and they insist the definition of sex-trafficking victim should be expanded to include anyone who exchanges sexual services for money, even those who work entirely independently.
Sadly, this position has become a popular one in recent years, as law-enforcement agencies around the nation get federally funded (and sometimes mandated) "human trafficking awareness" training to shift their thinking about sex workers. The approach has gained oodles of good PR for allegedly being more compassionate, enlightened, and feminist than previous police views of prostitution—treated as a community nuisance—and sex workers, previously seen as morally depraved, deliberately lawless, and lying in the beds they made for themselves. The new national message on prostitution is that the vast majority of women involved were forced or coerced, if not by a literal "pimp" or "trafficker" then by the circumstances of their lives.
This is insane, obviously. But it informed (and still informs) a rash of recent bad policies, starting under George W. Bush but really picking up steam in the later years of the Obama era. Without the Bush-tinted veneer of being a socially conservative or Christian enterprise, anti-sex-trafficking crusades were quickly seized upon by Democrats and other mainstream liberal types, and "human trafficking" legislation became a frantic and bipartisan affair at the federal and state levels. But even though Bush-era language specifically condemning consensual prostitution was gone, the policies had the same in effect.
States—including Delaware, New York, and Michigan—and cities created special courts during this time to deal with the purported human trafficking "epidemic" sweeping America. Delaware's court was created in 2012 ("one of 14 nationwide when it was first established," according to the Journal). Like other so-called human trafficking courts, it handled criminal cases related to adult prostitution, regardless of whether anyone was alleging force, fraud, or coercion.
These courts garnered a lot of good headlines as well as praise from high-powered people—plus the public funds that came with that—by promising to treat all arrested sex workers as potential sex-trafficking victims and offer them a way to dodge jail time with counseling and social services. But it turned out that many arrested on prostitution charges didn't want to declare themselves victims, name names of "traffickers," enter a months-long state-run "treatment" program, or even leave prostitution in the first place. And those that were open to state aid with starting a new life could find themselves presented not with practical assistance but things like yoga classes and group counseling—if not worse: There have been multiple reports of U.S. Immigration and Customs Enforcement using human-trafficking courts to find immigrants who have been working in prostitution, which is grounds for deportation even if they are in the country legally.
In some areas, those who complete human-trafficking court programs can be cleared of prostitution charges. Delaware's program only provided a way to avoid jail time, not a criminal conviction altogether. In order to be eligible for the program, an arrested person had to plead guilty to misdemeanor prostitution and would be put on (usually) one year probation. Those who couldn't keep up with program requirements—regular class attendance, drug testing, no new arrests or probation violations—were sent swiftly back to the typical criminal-justice route.
Once in the program, women "pursued their GEDs" and were trained for jobs at local ShopRite stores, reports the Journal. The court helped people like "Clorissa," now 29, who "left behind an abusive, controlling boyfriend, a heroin addiction and thousands of dollars that she earned" via street-based sex work, according to the paper.
Of course, not everyone arrested on prostitution charges (and certainly not everyone engaging in prostitution) needs to exit an abusive relationship, shake a drug problem, finish a high-school diploma, or get trained to work at a minimum-wage job. Yet instead of saving the Clorissas while letting non-victims get on with their lives, these programs only offer alternatives for people willing to be "saved."
Of the 110 people who entered Delaware's human trafficking program, the Journal reports, only 30 have completed it.
The Criminal Justice Council report concluded that it "finds it difficult to continue to justify the resources that have been expend on so few probations who have demonstrated a low rate of success." It recommended at least moving to a program where those who completed it could avoid a criminal conviction (known as the diversionary model), but it does not seem that authorities have accepted this recommendation.
Ultimately, it looks like the prostitution arrest model in Delaware may return to its previous status quo, where the state still punishes adults for paid sex but at least doesn't pretend like that's part of some humanitarian mission. We'll see. For now, the shift in (media- and politics-created) social priorities in the state is interesting.
The feds gave at least $1.5 million over five years to Delaware's Brandywine Counseling and Community Services, which worked with the Human Trafficking Court in addition to doing street-based sex worker outreach. CEO told Lynn Fahey that funding has dried up recently, however, as "the attention shifted to the opioid epidemic." Sometimes there's only room for one trending panic in town.