The ABA expressed concerns this month about a new restriction imposed on those applying for funding under the Trafficking Victims Protection Act (TVPA) to prohibit grantees from using funds for direct legal representation for vacating and expunging criminal records of human trafficking survivors.
Applications are due at the end of June for fiscal year 2018 grants from the Office for Victims of Crime (OVC) to provide comprehensive and specialized services for human trafficking victims. In the past, grantees have been prohibited from providing criminal defense services, but they could use funds for post-conviction legal services for vacating criminal convictions that occurred because of being trafficked. The new language only allows grantees to counsel clients on the expungement or vacatur of any conviction for a non-violent crime that resulted from being a trafficking victim.
Vacatur and expungement are “necessary final escapes” from trafficking victimization and allow victims of human trafficking to move on to lives that are free from trafficking exploitation,” ABA Governmental Affairs Director Thomas M. Susman wrote in a June 4 letter to the Office of Justice Programs and OVC.
In his letter, Susman emphasized the ABA’s leadership role in addressing sexual and human trafficking and the important role of the legal profession in addressing criminal justice issues.
The ABA Commission on Domestic & Sexual Violence, established in 1994, works to increase access to justice for victims of domestic and sexual violence, including human trafficking survivors, through training attorneys to provide representation.
With the support of OVC, the ABA commission recently launched the Survivor Reentry Project (SRP), which provides national training and technical assistance for attorneys working with survivors of human trafficking who have been convicted of crimes because of their victimization. Susman pointed out that many survivors pursuing stability and independence once they are no longer trafficked are hindered by their own criminal records and are denied employment and housing.
While more than half of the states have passed vacatur laws allowing survivors to petition to have their records cleared if they can show that their crime arose from their victimization, the practice has been slow to build and the legal community has not developed the capacity to handle these cases in large numbers.
“SRP has raised awareness of vacatur remedies for survivors and built sustainable vacatur practices in key locations across the country by offering training for prosecutors, legal services lawyers, pro bono attorneys, law students, and judges,” Susman wrote. The new restrictions, he said, “would create dangerous and troubling gaps in services for victims,” and the “final shackles of their trafficking victimization would remain tightly bound were vacatur and expungement not provided through critical legal services.”
He also explained that SRP and other programs providing vacatur and expungement representation for human trafficking survivors respond to the legislative directive in the TVPA that explicitly provides that victims “should not be inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked.”
Others urging the OVC to reconsider the new funding restrictions include nearly 300 anti-trafficking organizations and individuals, 126 human trafficking survivors, nine prosecutors’ offices, and the Association of Pro Bono Counsel.