Elizabeth Nolan Brown is a staff editor at Reason, where she writes frequently about sex work, civil liberties, and criminal justice. Find her on Twitter @enbrown.

No one supports sex slavery. And the thought of child sex slavery turns the stomach. Last Friday, President Obama ostensibly addressed this issue by signing the Justice for Victims of Trafficking Act (JVTA), a massive package of grant appropriations, criminal penalty enhancements and other items aimed at fighting human trafficking in America and abroad. As well-meaning as this legislation may be, the “War on Sex Trafficking” that the federal government is waging will fail, just as the “War on Drugs” has failed.

With almost unanimous, bipartisan support in Congress and fans ranging from evangelical Christians to Planned Parenthood, it's easy to see the JVTA as a rare win-win in Washington. But just as giving local police and prosecutors an urgent mandate to fight drugs led mostly to the prosecution of low-level drug users and dealers rather than big-time drug traffickers, the fight against sex trafficking—plus federal funding to do so, contingent on arrests and convictions—sets up perverse incentives to treat everyday prostitution as sex trafficking.


All over the country, we're now seeing what would have been deemed "vice" work reframed as human trafficking stings. And who gets swept up in these stings? Willing, adult sex workers. Their would-be patrons. Petty pimps. For example, during last year's Operation Cross Country, an FBI spearheaded initiative "to recover victims of child sex trafficking," Newark, N.J. cops identified just one 14-year-old sex trafficking victim but it arrested another 45 people for normal prostitution or pimping. In Portland, one minor was recovered while 20 adult women were arrested on prostitution charges and three adults were arrested for promoting prostitution.

Under the JVTA, anyone soliciting paid-sex from a minor can be arrested on federal human trafficking charges. Throwing the book at child rapists is hard to argue against. But it’s worth noting that the “the Government need not prove that the defendant knew that the person had not attained the age of 18 years," nor that any element of force was involved. Also unnecessary is a real victim: the main catch in many “sex trafficking stings” are men who agree to pay for sex with a police decoy. And the breadth of these new anti-trafficking laws means they are used against individuals several degrees of separation from acts of child prostitution.

Take, for instance, Hortencia Medeles-Arguello, 71, who was recently arrested on federal charges as the “ring leader” of a sex trafficking syndicate. Arguello’s crime seems to be owning a bar where she allowed prostitution upstairs and didn’t check the ages of the women involved, some of whom were revealed to be teenagers. Bartenders and other employees were also charged as part of the sex trafficking “conspiracy.”

Most of the offenses the JVTA targets, including those of Medeles-Arguello, were already illegal under local prostitution, pandering kidnapping, or statutory rape laws. But under the new banner of human trafficking even relatively minor crimes related to sex work can come with serious felony status, a sex offender registry requirement and a mandatory minimum prison term.

Mandatory minimums are strictly fixed sentences that leave no room for a judge's discretion. They were a popular drug-war tack in the '80s and '90s that grew into a regular feature of counterterrorism and cybercrime laws; at their apex, every state had some form of mandatory minimum sentence on its books. In theory, these schemes bring fairness to sentencing, but in practice they're largely regarded to have been a flop—swelling prisons with nonviolent offenders, failing to prevent additional crime and even increasing recidivism rates among low-level offenders. Since 2000, 29 states have revised mandatory minimums, scrapping some and adding more judicial say back into others. At the federal level, bills such as the Smarter Sentencing Act, which Obama supports, aim to do the same.

"Mandatory minimum sentences have been studied extensively and have been found to distort rational sentencing systems, discriminate against minorities, waste money, and often require a judge to impose sentences that violate common sense," said Rep. Bobby Scott (D-Va.), co-chair of the Congressional Human Trafficking Caucus and one of only three members of the U.S. House to vote against the JVTA. The bill "contains a new mandatory minimum that someday will require a judge to impose a sentence that violates common sense," he said in a statement.

Scott is wary of the "the possible scope of defendants who could be prosecuted" under this provision. Known as the SAVE Amendment, it prohibits not just placing an "escort" ad for a minor or someone forced into it but also benefitting financially in any way from the ad—meaning that classified-ad hosting sites could be held criminally accountable as sex traffickers. And the penalty for this trafficking? Mandatory minimum imprisonment of 10 to 15 years.

While this may be justifiable in some cases, those prosecutable could include "all of the employees of the ad company, including the receptionist or the computer guy," said Scott. "The judge should have the discretion to consider all the facts and the culpability of the particular defendant."

The JVTA's approach to the issue of human trafficking is also ascendant in the states, which have each passed a few (if not a few dozen) trafficking laws in the past five years. In Georgia, human trafficking now comes with a mandatory minimum sentence of 10 years, or 20 if the victim is under 18. In Louisiana, labor trafficking carries a five-year mandatory minimum and any activity related to commercial sexual activity involving a minor (including advertising) carries a 15-year minimum sentence. In Missouri, mandatory minimums for sex or labor trafficking of an adult range from five years if by means of "deception or blackmail," 10 years if by force/coercion. In Montana, sex trafficking anyone under 18 comes with a mandatory 100-year prison sentence, albeit eligible for parole or probation after 25 years.

Julie Stewart, president and founder of Families Against Mandatory Minimums, is also (unsurprisingly) against the mandatory minimum element of the federal trafficking bill. "There is no question in my mind that human trafficking demands our attention," said Stewart, "but there’s also no question that expanding mandatory minimum sentences is the wrong way to do it. Every time members of Congress create a new mandatory minimum, they end up disproportionately punishing offenders they never intended to."

It's not just mandatory minimums—other elements of new anti-trafficking laws could wind up disproportionately harming poor and minority populations. For instance, several states (including New York, most recently) have added enhanced penalties if a trafficking offense takes place within a certain distance of a school or its athletic grounds. (This was also a popular addition to drug offense sentences once upon a time.) Keep in mind that it's hard to be anywhere that's not near a school in major urban areas. And consider that such laws will be applied almost entirely to run-of-the-mill sex workers and pimps rather than big-time human trafficking operations.

State and local law enforcement "don't have enough power to come after organized crime for prostitution," says Lenny Sharon, a Maine-based criminal defense attorney. "So who are they going to prosecute? They'll prosecute street guys. That's who it'll be used against, because it's more convenient."

Sharon, who has been practicing law since the '80s, was vocally opposed to a 2014 Maine law addressing sex trafficking. "I've been through both the war on drugs and the war on terror," says Sharon. "What happens is you see money thrown at an issue for one reason or another. (Then) they have to justify the money, so they hire a strike force, they hire more police, they ratchet up the penalty."

The alleged increase in domestic human trafficking fuels the sense that these laws are proportionate. Yet there’s no credible research showing that human trafficking has been increasing the U.S. While federal agents speak of the hundreds of thousands trafficked in America annually, federal anti-trafficking task forces only confirmed a little over 120 cases between 2007 and mid-2008, including only 14 victims under age 18. The Government Accountability Office has called federal statistics on domestic trafficking "questionable" due to "methodological weaknesses, gaps in data," and the fact that “the U.S. government's estimate was developed by one person who did not document all his work.” And the Washington Post’s “Fact Checker” has recently dismantled several dubious but oft-relayed trafficking stats.

Americans have watched a few decades of tough-on-crime policies deliver us massively expanded (and expensive) prisons, militarized local cops, wrecked communities and no discernible increase in public safety or deterrent of drug use. And for the first time, there's real momentum away from this in terms of drug offenses, with the rapidly growing decriminalization of marijuana and reforms of sentencing and civil asset forfeiture for drug offenders. Even the old guard in Congress is starting to "soften," said Josh Withrow, legislative affairs manager at Freedomworks. Yet both the old and new guard are reluctant to apply this wisdom beyond the drug war. Whenever a new threat, real or imagined, captures the national mood—crack, cyber terrorism, sex trafficking—we're right back in 1986, with every state and city and senator ready to prove they care by pushing ever harsher penalties and ever broader parameters for who should be penalized.

Molly Gill, of Families Against Mandatory Minimums, calls it "the crime du jour effect": whenever there's a new crime du jour, "there will be mandatory minimums hot on the heels of that," she says.

At a recent roundtable at the Center for American Progress (CAP), Christine Leonard, executive director of the new Koch- and CAP- backed Coalition for Public Safety, suggested that it's unrealistic to expect policymakers to radically shift from tough-on-crime policy all at once. Though we are at a "historic moment," incremental action is still the golden ticket to criminal justice reform in 2015.

But while that may be true in terms of introducing new reforms or repealing bad old policy, it shouldn't preclude reformers from fighting new manifestations of this bad policy. Ignoring them only seems likely to undermine or cripple the justice reform project in the long run. As Rep. Scott pointed out, "mandatory minimum sentences didn't get into the criminal code all at once but one at a time, each one part of an otherwise good bill. If we expect to get rid of mandatory minimums, we have to first stop passing new ones like this."

Scott seems sadly alone in this viewpoint in Washington. Though both Barack Obama and Sen. Rand Paul have been big proponents of reforming sentencing laws—Paul has called federal minimums “heavy-handed” and “ unrealistic”—both supported the new penalties in the JVTA.