In light of last December’s blockbuster investigative story by the Miami Herald, Jeffrey Epstein was recently arrested in Manhattan for sex trafficking, in part spurred on by national outrage over the leniency that law enforcement afforded him in the Miami case. That led to another piece by the New York Post on Epstein skipping court-ordered check-ins, prompting another round of public outrage. We too were outraged. As public defenders, his treatment underscored the profound gulf between justice for those with power, money, and privilege, and “justice” for those without.
People we represent charged with things as minor as drug possession and low-level sales are routinely sentenced to longer than the 13 months Epstein was able to bargain for despite being charged with having sex with young girls. While black children can barely walk down their own streets in Brooklyn without being stopped and frisked, law enforcement looked the other way as Epstein and his friends engaged in horrific, widely known illicit conduct. Epstein failed to comply with New York’s sex offender registration requirements for eight years. Meanwhile, just this past month, one of our clients, a 57-year-old man, was arrested, jailed, and convicted for failing to report an address change after becoming homeless and after nine years without ever missing a check in.
The differences between the Epstein case and the treatment of our clients—people who are overwhelmingly poor, black and Latinx, and live in certain targeted communities—could not be clearer. But his case highlights a devastating similarity, as well: the cruel, inhumane, and ineffectual way law enforcement treats victims of sex trafficking.
One of the fiercest public condemnations in the Epstein case centered on how prosecutors acted towards his victims. In many ways, they were treated with less care and consideration than Epstein himself. Prosecutors never notified the victims, let alone consulted with them, before offering him a deal, which included an agreement not to prosecute him further in exchange for a relatively light jail sentence. But this kind of mistreatment is no anomaly.
People who have been trafficked are not just neglected; they are also surveilled, arrested, prosecuted, coerced, and jailed for conduct committed under the duress of their traffickers.
Take, for example, the way in which the criminal system handles prostitution-related offenses of trafficking victims. Although people who are trafficked are forced to sell sex to earn money for their trafficker under fear of harm or death, they are still arrested and charged with prostitution, even when police and prosecutors are aware of their precarious positions.
We recently represented a young woman arrested for prostitution. Prosecutors knew of her history of abuse, trauma, and the duress under which she was forced to work, but they decided to prosecute her anyway. They sent her case to a specialized Trafficking Court supposed to “help” her, but even in this “therapeutic” setting, she was forced into a program in order to earn a dismissal or else be punished with a warrant, conviction, and/or jail time. After being cuffed, held, and caged by police, she was required to check in with court over the course of months, forced into social work sessions she did not want, and even after completing them, the prosecution would not dismiss her case. Instead, they kept the charges open for a period of six months during which she could be re-prosecuted at any time.
But Trafficking Court for low-level prostitution cases is just the beginning. Victims ensnared in trafficking are also routinely forced to commit more serious crimes, including crimes of violence, under coercion and for the benefit of their traffickers. We represented another young woman who was trafficked out of a group home when she was just a teenager, and had severe cognitive delays as well as a diagnosed mental illness. After her trafficker forced her to rob a taxi driver, she spent months on Rikers Island before we were finally able to convince a judge, over the prosecutor’s objection, to sentence her to a short amount of jail time. Outside of prostitution-related cases, prosecutors tend to discount or disbelieve how trafficking can force a victim into certain acts.
People were shocked to learn that Epstein used minors to recruit other minors for his business. But sadly, this is not unusual. This is the nature of trafficking.
Traffickers are smart, keeping their distance from the risky parts of the business to avoid potential prosecution and putting their victims in situations where they, not the traffickers, are more likely to be held legally accountable. Accurate statistics on the number of people trafficked are challenging to determine due to barriers of self-reporting and law enforcement conflating sex trafficking and sex work (adults consensually exchanging sex for money). What is known is that traffickers, like Epstein, target the most vulnerable in society, such as minors, undocumented people, children separated from their families or support networks, people who are experiencing mental illness and/or drug addictions, and transgendered and gender non-conforming people.
We recently represented a young trafficking victim, who was herself charged with trafficking other girls. Sent by her trafficker to the United States to work, not even a day after her arrival, she was put to work. If she didn’t make enough money each day, her trafficker would withhold her food and phone privileges and she would face physical and sexual abuse. After some time, her traffickers put her “in charge” to make sure the other girls were working and making money. When one of the girls was able to secretly call police, our client was arrested and charged with trafficking.
While her traffickers were also arrested, they could afford to pay bail and buy their freedom from Rikers Island. Our client couldn’t and was jailed for six months while we tried, unsuccessfully, to convince prosecutors that she was actually a victim who was forced to perform these horrible acts. Fortunately, the case was eventually dismissed, but not until this young woman endured months of maltreatment in jail, made even worse by the fact that she was seen as a “trafficker” herself.
None of this is just. If we, as a society, truly believe that survivors should have an opportunity to heal and rebuild their lives, taxpayer dollars should go toward building safe homes, providing educational opportunities and long-term therapy for trafficking victims to overcome the trauma and harm they suffered—not increased law enforcement and court-based coercion and incarceration.
And, as we look at options for holding people accountable for causing harm, we should also remember that public outrage can sometimes do more harm than good. High-profile cases of leniency like Epstein’s can easily lead to calls for mandatory minimums and over-policed neighborhoods, which is what already brought us the crisis of “mass incarceration” and exacerbated, instead of helped solve, the underlying issues of trauma, poverty, and oppression.
Public defenders know all too well how calls to be tough on crime will be felt predominantly by black, Latinx, and immigrant communities, where enforcement is exaggerated and leniency is scarce. Epstein’s case is more than just an opportunity to point out disparities in the way those with privilege and power are treated as compared to those without. His case also compels us to grapple with how sex trafficking victims are routinely failed and further harmed by the criminal legal system.
Jillian Modzeleski is Senior Attorney, Victims of Trafficking Defense Unit at Brooklyn Defender Services.
Scott Hechinger is Senior Staff Attorney & Director of Policy at Brooklyn Defender Services. You can find him on Twitter at @ScottHech.
Originally Appeared on GQ