Gruber, Aya and Cohen, Amy J. and Mogulescu, Kate, Penal Welfare and the New Human Trafficking Intervention Courts (May 6, 2016). Florida Law Review, Forthcoming. Available for download at SSRN: http://ssrn.com/abstract=2776870

“In the fall of 2013, New York State’s chief judge, Jonathan Lippman, announced a “revolutionary” statewide initiative to create and implement Human Trafficking Intervention Courts (HTICs). The initiative occurred amidst a burgeoning consensus that prostitution is human trafficking and women who engage in prostitution are largely victims of exploitation and violence. Given the HTICs’ ambition to, in Lippman’s words, “eradicate the epidemic of human trafficking” and the convergent view of prostitution as trafficking, one might think that the HTICs are courts that prosecute traffickers, where victim-witnesses enjoy special protections. In fact, the HTICs are criminal diversion courts where mostly female defendants are prosecuted for prostitution offenses, but offered mandated services in lieu of criminal conviction and jail. The HTICs are thus a puzzle. Why have so many commentators heralded them as the model approach to prostitution/trafficking when they involve the arrest, prosecution, and even incarceration of prostitution defendants, who are presumed to be victims? A key piece of this puzzle is a phenomenon we call “penal welfare,” that is, a growing practice of using criminal courts to provision social services and benefits. In an era in which “mass incarceration” is a familiar term and tough-on-crime and broken windows ideologies are falling into disfavor, penal welfare enables entrenched institutions of criminal law to continue to function, despite a growing crisis in public confidence. Based on a qualitative empirical study of the HTICs, we argue that precisely because of their welfarist bent, the courts may sustain arrests and prosecutions of the presumptively victimized women they seek to protect, stunt the development of alternate forms of assistance and resources, and reinforce stigmatizing ideologies and discourses.”