Prosecutorial Discretion . . . , Meet Selective Prosecution

Three weeks ago the New York Times ran a two-part investigative story on the appalling working conditions inside certain New York nail salons.  The story uncovered an alleged litany of horrors that led to the filing of a class action lawsuit.  The suit names four Manhattan Upper East Side nail salons and their owners as the culprits.

The government’s response?  New York Governor Andrew Cuomo and New York City Mayor Bill de Blasio called out for further investigation into the alleged illegal activity.  Also, Governor Cuomo has revealed new bills, issuing more power to the Department of State. So, ‘further investigation’ and ‘increased legislation’?  Last we checked, the current legislation already outlaws slave labor.  Both the employment and criminal laws have this terrain fully covered.  And it is questionable whether ‘further investigation’ is needed given that state and federal authorities have known about this situation for years now. Huffington Post published, in 2010, an article detailing the infiltration of sex and labor trafficking in New England nail salons. And, the trafficking didn’t stop at state lines. The story listed copious instances where police discovered enslaved women in nail salons across the U.S., even before 2009. Further investigation was performed. So was increased legislation. What about enforcement?

Still, City Council proposed legislation to impose a letter grade system on all beauty salons, similar to what currently regulates restaurants.   Some might consider letter grading a Too-Little-Too-Late measure when compared to the human trafficking indictments that have come down in response to similar allegations in the spa / massage industry.  Perhaps ‘nail technician’ does not have the same marketing or moral sway as ‘sex worker.’  Defense lawyers will be needed but it appears thus far that Criminal defense attorneys need not apply.

Is the government picking and choosing whom to prosecute based on press-release-politics and political interests?   It could be argued that focusing on the victims, past and future, should be the aim of our criminal prosecutorial system. Why are women– shipped from Korea who are allegedly directed to work in massage parlors– garnering more interest from criminal authorities than those who are directed to work in a nail salon?  Let not forget that the NY Attorney General’s Office has both civil and criminal prosecutorial powers.  The nail salons are allegedly exposing these victims to harmful chemicals that can result in illness, birth defects and death.  No such hazards exist in the massage spas but then again ‘sexual touching’ is perhaps worse than cancer, or at least a better headline grabber. It’s the victims, not moral policing, that should take center stage when exercising prosecutorial discretion.

Following this theme, two weeks ago a two year-old died a day after being struck by falling bricks from the 8th floor window façade of the Esplanade senior residence on 74th Street. Seconds before the accident, the child was sitting on a bench next to her grandmother. Investigators looking into the incident discovered a 2011 exterior inspection, performed by Blue Print Engineering, declaring the building to be safe. As the inspection report is in compliance with current city code, investigators are now focusing their eye on Blue Print themselves, while a youngfamily grieves in private. The government had previously levied criminal charges against a slew of building inspectors for taking bribes in exchange for turning a blind eye and falsifying records. For the most part, the private sector was left alone while several government inspectors were indicted. Did the government also identify the buildings in question and re-inspect them for safety issues? A victim’s-interest focus on criminal prosecution and investigation might include such measures. What did further investigation uncover? The focus turned to the Bonanno crime family. Charges of unlicensed check bundling and money transmission service against the Accardo brothers appeared to be more important than building re-inspections.

When it comes to enforcing the law, the message seems clear in terms of which actions take precedence. If there is sex or mob involvement, the state and federal government go to great lengths to investigate and press charges. ‘Perp walks’ parade down Centre and Pearl Street. Backs are patted. And the media develops a tantalizing story to complement our morning coffee. But what about the alleged victims of less tantalizing wrongdoing.  The government is doing something it seems, but criminal attorneys, defense and prosecution alike, won’t likely be called to investigate unless something more sensational arises.  This may not fit the legal definition of selective prosecution but at what point does the ever expanding concept of ‘prosecutorial discretion’ get in the way of true criminal justice?

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