Vacatur: Whose Second Chance Is It Anyway?

A black and white photo of children in the South Bronx chasing pigeons away.In 2014, Tracey Jones celebrated ten years working at the same daycare center. There is no question that Tracey is meant to work with children. Walk down Courtlandt Avenue with her, and you will hear kids yelling, “Hi, Miss Tracey!” When she hears the greeting, she stops what she’s doing and opens her arms. She scoops them up, remembers their names, the last time she babysat them, and in a few cases, the last time she babysat their parents.

Seeing Tracey at forty-eight, mother hen of the South Bronx, one would never guess what the early parts of her life entailed. Yet, with her signature even keel, she would relay how her stepfather forced her into sex work at thirteen. After she ran away from home, she was taken in by a series of men and women who profited from her sex work and introduced her to heavy drugs. Over the course of twenty years, she was arrested and convicted thirty-one times. In 2001, she kicked her drug addiction and removed herself from the world of sex work. She got a job at Duane Reade, then at the Parks Department, and then at the daycare center. She reconnected with her child who had been taken from her when she was young. She became a foster parent, and over the years acted as a mother and mentor to dozens of children. When I met Tracey, she had been drug-free for more than fifteen years.

A few months after Tracey celebrated her tenth year on staff, the daycare center closed, and she lost her job. This would have been a hurdle for anyone, but for Tracey, it was a devastating setback: she was unable to find another job due to her criminal record. Despite the Herculean feats she had accomplished to change her life, her criminal convictions served as an immovable impediment, and a daily reminder of the two decades of trauma she had endured.

It was for women like Tracey that I started the Prostitution Vacatur Project with the support of other lawyers and advocates at The Bronx Defenders. New York has an under-utilized statute that permits a court to vacate, or erase, criminal convictions from a person’s record if that person can show that the convictions were the result of sex trafficking. Through the Vacatur Project, I had the opportunity to meet dozens of heroic women who had dug themselves out of the throes of trafficking to become mentors, role models, and leaders in their communities.

On May 5, 2016, I walked into the Bronx Hall of Justice. Tracey greeted me at the door; she was nervous, as was I. We weren’t convinced the judge would grant our motion to vacate her thirty-one convictions. When Judge Lopez took the bench, she didn’t make eye contact with anyone. I squeezed Tracey’s hand as we walked to stand before the judge.

As Judge Lopez looked up from her notes, we saw that she had tears in her eyes. “Ms. Jones, when someone says, ‘I’m sorry,’ there are two different meanings,” she said. “The first meaning of ‘I’m sorry’ is the one I might say to console you for a loss. The other meaning of ‘I’m sorry’ is to acknowledge that I’ve done something to hurt you, that I regret it, and that I want to make amends. Ms. Jones, I want to say I’m sorry in both ways to you today. I’m sorry for what happened to you in your family. That never should have happened. But more so, I am the state, and as the state, I’m saying to you: I’m sorry that the state did nothing, and in fact victimized you more when it arrested and convicted you. I’m giving you an official apology now, from the government. To the extent I can express that apology through my capacity as a judge, this motion is granted in its entirety.”

April is Second Chance Month, a nationwide effort led by the Prison Fellowship to raise awareness of the collateral consequences of criminal convictions and create second-chance opportunities for people who have paid their debt to society to become contributing citizens.

During my five years as a public defender, I had the opportunity to represent hundreds of impressive people charged with everything from jumping the turnstile to attempted murder. I gained intimate knowledge of the inner workings of the criminal legal system, and its devastating consequences on poor people and people of color. The harms inflicted through the process of arrest and prosecution – including housing instability and homelessness, loss of employment, and loss of child custody – are compounded when a client incurs a permanent criminal record. Each of my clients was endlessly capable of change. No human should be defined by the worst mistake they’ve ever made, regardless of what that mistake was. We are, every one of us, worthy of second chances.

Second Chance Month is also an opportunity for us to evaluate what we consider to be a “chance.” For Tracey, and other trafficking survivors like her, it’s arguable that she never even had a first chance. Her convictions were the result of involuntary acts that she was forced to commit against her will. The criminal legal system was the party guilty of the mistake. When Tracy courageously walked into the courthouse to accept the judge’s apology, it was she who was extending a second chance to the courts.

Vacatur is an excellent means to repair harms perpetrated by the criminal legal system. We must continue to support vacatur efforts, but we must also stop arresting trafficking survivors of forced criminality in the first place.

By the end of Tracey’s court appearance, everyone in the courtroom, including the court officers, the court reporter, and the prosecutor, were crying. Tracey simply hugged them all. Even the prosecutor.

“How do you feel?” I asked as we left the courthouse. Without a beat, she replied, “Zoë, I finally feel human.”