Forced criminality + collateral consequences
HT 101 reminders
Keep in mind…
- The Polaris Project defines human trafficking as the business of stealing another person’s freedom for profit
- Often, the overwhelming needs for survivors are stable housing, work opportunities, and long-term mental health support structures – your work with them must be considered in this context
- This is especially important because many survivors are denied access to these basic necessities as a result of their arrests and/or convictions
Forced criminality
What is forced criminality?
- Trafficking survivors are regularly arrested and prosecuted for crimes resulting from their trafficking
- Findings from the 2016 National Survivor Network survey:
– More than 90 percent of trafficking survivors reported having been arrested at least once
– More than 50 percent reported that every arrest on their record was trafficking-related
– Survivors further reported that criminal records regularly prevent them from obtaining employment, educational and professional opportunities, secure housing, and financial freedom
– Over 75% of respondents reported that they have not been able to vacate their convictions (too expensive, do not know how); some tried but were not able to or were only able to clear some of their records
– Of the approximately 25% of respondents who reported they had cleared or have begun to clear their records all reported it was a long and painful process
What crimes are survivors forced to commit?
- Common crimes include:
-Prostitution
-Drug offenses: smuggling/selling/using
-Financial crimes: scams, stolen checks
-Gang-related crimes
-Identity theft
-Property/auto theft
-Benefits fraud
-Loitering for sales
-Truancy
- Trafficking survivors are routinely arrested, prosecuted, convicted, and incarcerated for these crimes without ever being identified as victims
Can anyone really be forced to commit a crime?
- You may be thinking: She did not have to commit that crime…
- Remember: Real choice involves actual possible alternatives and capacity to weigh one against another and decide on the best avenue
- When you are being trafficked, you do not have this real choice
Collateral consequences
What happens to survivors as a result of this forced criminality?
- A criminal record can block every path to a new life – impeding access to employment, housing, education, and perpetuating their sense of shame and stigma
- Criminal records continue and compound the abuse and exploitation, even after survivors have physically escaped
- With each background check conducted by an employer, landlord, or school, survivors experience the shame, fear, and denial of independence of the trafficking experience
- Survivors can be left homeless and unemployed, and without access to education, and vulnerable to new forms of abuse and exploitation
What are the consequences of having a criminal record?
- People living with old convictions face nearly 50,000 legal barriers after completing their sentences
- These barriers can include:
-Blocking their ability to earn a job
-Accessing housing
-Securing student or housing loans
-Joining professional trade associations
-Getting certified in specialized professions
-Pursuing higher or continuing education
-Preventing someone from adopting or fostering a family member in need
-Driving a car
-Accessing victims’ services (if they become the victim of a crime)
-Accessing immigration relief or adjusting status
What are the consequences of having a criminal record?
- Employment
– 72% of U.S. employers use background checks
– Even if hired it is more difficult to get promotions as they can trigger additional background checks
– California requires licenses for approximately 300 occupations and 21% of its 19 million workers
- Housing
– Nationally an estimated 25%-50% of people who are homeless were formerly incarcerated
- Education
-Higher education admissions have argued that it makes campuses safer (by asking about records on the application), but research on the correlation between criminal history screening and improved campus safety shows no link
- Public benefits
– California law permanently bans individuals convicted of crimes involving fraud, dishonesty, misrepresentation or money-laundering from receiving TANF and SNAP benefits
What are the consequences of having a criminal record?
- Most of these restrictions have no correlation to the crime committed and apply even after the person has completed all the terms of the sentence imposed
- Most collateral consequences cannot be justified from a crime prevention standpoint, and furthermore, economic and family stability reduce the likelihood of returning to crime (stable housing and employment have been shown to reduce recidivism)
- Having a criminal record can also revictimize a survivor by forcing her to relive her victimization every time she is forced to disclose her criminal history (on job or housing applications, for a child’s school volunteer program, etc.)
Record relief laws
How can we help survivors given all these collateral consequences?
- Criminal record relief laws!
- These laws allow survivors the ability to vacate, expunge, or seal (depending on the jurisdiction) arrests and convictions from their records where the conduct was the result of victimization
- Record clearance is a fundamental concept of criminal justice reform, and it is a chance to re-enfranchise clients, reduce recidivism, and inject public policy into the courtroom
Vacatur vs. Expungement
| Expungement/“set aside and dismissal” | Vacatur | |
| Types of cases | Available for convictions not resulting in a state prison sentence (with some exclusions) | Available for non-violent offenses, regardless of sentence/disposition |
| Legal standard | Mandatory in some cases, other cases require a showing of “interests of justice” | Requires “clear and convincing” evidentiary showing, and best interest and interests of justice |
| Type of relief | Release from “penalties and disabilities” | Offense is “deemed not to have occurred” |
| Disclosure | Must be disclosed in certain circumstances (e.g. when applying for certain types of jobs) | May deny or refuse to acknowledge/disclose when asked |
| Licensed jobs | May still be considered by many licensing agencies | Cannot be distributed to licensing agencies |
Additional Resources
- Don’t forget to look at the accompanying reading materials in your training binder under the “Forced Criminality and Collateral Consequences” tab in the pre-training section.
- In addition to those resources, the following websites will also provide supplemental information on these topics:
-Root and Rebound, https://www.rootandrebound.org/
-Clean Slate Clearinghouse, https://cleanslateclearinghouse.org/
-Collateral Consequences Resource Center, https://ccresourcecenter.org/ (especially the Restoration of Rights Project, https://ccresourcecenter.org/restoration/)
-National Inventory of Collateral Consequences of Conviction (NICCC), https://niccc.csgjusticecenter.org/
Attachment CS-Training-Forced-Criminality-and-Collateral-Consequences4821-5663-2773.pptx
