DA’s office to johns: ‘It takes two to tango’
High rate of dismissals prompts a cutback in pretrial program that curtailed convictions
Of the 178 men arrested in Houston last year during a massive crackdown on prostitution, charges have been dismissed or are on track for dismissal in nearly 70 percent of the criminal cases a year later, according to a Houston Chronicle review of public arrest records.
The high rate of dismissals for men arrested on charges of soliciting a prostitute has prompted the Harris County District Attorney’s Office to sharply scale back the use of a pretrial diversion program that allowed many defendants to avoid convictions.
“We were treating johns in a much more gingerly fashion than the prostitute or seller,” said JoAnne Musick, division chief of sex crimes for the district attorney’s office. “On average, our sellers would end up spending anywhere from three to 20 days in jail. That’s a pretty big difference because it takes two to tango. We did not like that disparity.”
Defense attorneys, however, say the diversion program has provided options for people who make mistakes.
“I’ve got clients that are professionals that this is going to affect their lives and their family’s lives because they are going to lose their jobs,” said attorney Ed Chernoff. “Defense attorneys are angry for a real good reason. The DA can craft a program that would be used to benefit not just the defendant but the community.”
The February 2017 sweep — which netted the Harris County Sheriff’s Office national recognition — was part of the 13th Na-
tional Johns Suppression Initiative. More than 30 local police agencies participated in the sweep, including the Houston Police Department.
Of the 178 men arrested, more than 95 enrolled in the diversion program, which typically offers a six-month to one-year probationary term approved by the district attorney’s office for firsttime offenders. Defendants agree to undergo drug testing, pay fees and complete an AIDS awareness course, among other things.
Once the probationary terms are fulfilled, the charge is dismissed. That allows those arrested to seek expungement, which leaves no evidence of the arrest or diversion.
About 14 percent of all the February 2017 cases stemming from the sheriff’s office sting have been expunged, according to the Houston Chronicle’s analysis. ‘Proud to lead the nation’
Musick said prosecutors realized the expungement of records allowed some men to use the program over and over again, which was not the intended use. Officials then spent months meeting with the sheriff ’s office and other law enforcement agencies and community organizations such as the Houston Area Women’s Center to get their input on prostitution arrests, she said.
In August, the DA’s office ordered prosecutors not to use pretrial diversion for johns, Musick said.
Stings are the most common type of law enforcement tactic used around the world for targeting human trafficking and prostitution, said Michael Shively, a criminal justice expert who runs DemandForum.net, a repository for information on sex trafficking.
These stings are broken up into three types; street-level, webbased, and brothel-based. Most include officers “posing as women engaged in prostitution, awaiting approaches by people attempting to purchase sex,” Shively states on DemandForum.net.
It takes 30 deputies to run a sting with the Harris County Sheriff’s Office. The February 2017 sting, which targeted streetlevel activity, required 1,970 hours of planning and execution, according to a open records request filed with the sheriff’s office.
“I’m exceedingly proud to lead the nation in targeting sex buyers and traffickers,” Sheriff Ed Gonzalez proclaimed after the February 2017 sting.
Defense attorney Nathaniel Pitoniak, however, called Musick’s decision to cut back on pretrial diversions a “ham-fisted approach to address human trafficking.” Paul Doyle, another Houston attorney who has handled more than 100 prostitution cases, echoed these sentiments.
“These stings are not human trafficking stings,” he said. “They are prostitution stings, and the results reflect sloppy police work. It is a numbers game so the law enforcement agency can do a press conference.”
He said the busts have little impact on real trafficking.
“I wonder how posing as an adult female in an advertisement identifies and targets predators seeking children,” he said. “These are prostitution investigations and nothing more. Large amounts of tax dollars are spent on this, and I wonder if those resources could be better spent for more serious crimes.”
Pitoniak, who has represented about 10 johns in the last few years, said the accused are often ordinary men in the community who may be going through personal troubles. ‘Low-hanging fruit’
Tony Bunch, 49, was among the men arrested in the 2017 sting, and he was busted again in October on the same charge.
He told the Chronicle he had recently been divorced and was being treated for a gambling addiction when he was arrested a year ago. Bunch’s first case was dismissed after he completed 24 hours of community service and a course in decision-making. His second case is still active.
“Prostitution is kind of like pot. It’s low-hanging fruit. They’re not out there trying to deter real crime,” said Bunch, who had no prior criminal record before the arrest last year. “They are not stopping human trafficking . ... They aren’t going about it the right way.”
Shively agrees that while most men caught up in stings are indeed ordinary, these arrests are necessary in attacking demand.
“People in prostitution are murdered, raped, assaulted and kidnapped at vastly higher rates than any other population,” Shively said. “While many buyers are simply trying to get their needs met, and those that are abusive or intentionally seeking minors may be in the minority, the consequences of their actions are extremely severe. Every cent that changes hands in sex trafficking comes from the pockets of buyers, and without them there simply is no sex trafficking or prostitution.”
In Harris County, the number of men arrested while procuring prostitutes has grown steadily since 2014, from 146 to 433 last year — a nearly 200 percent increase, according to Jason Spencer, spokesman for the sheriff ’s office.
This year, as part of a nationwide effort around the Super Bowl, the sheriff’s office made 103 arrests between Jan. 7 and Feb. 4 — the most of any of the 30 law enforcement agencies participating across 16 states. Harris County edged out the Houston Police Department, which reported 64 johns arrested this year; the New York Police Department, with 62; the Los Angeles Sheriff ’s Department, with 66; and the Boston Police Department, with six.
“Our jobs are to build the case, make the arrest and turn them over to the court system. We didn’t track it down heavily, the disposition of the cases in the past years,” said Timothy Navarre, a 29-year veteran of the sheriff ’s office who oversees the criminal investigations bureau. “It’s now a more promising future when it comes to prosecuting prostitution.”
The impact on those arrested, however, has drawn sharp criticism.
Bunch was particularly angry that his photo and identity were released by law enforcement before his case was adjudicated, allowing widespread distribution in the media.
In Texas and across the nation, identities of people arrested and charged with crimes are public information, available to anyone who seeks the information.
Bunch and others, however, believe it is a form of shaming.
Navarre, however, thinks that’s part of the effort.
“I don’t have a problem with shaming them,” he said. “If we can save one sex-trafficking victim by shaming them, it’s worthwhile.” Musick disagreed. “It’s not something we condone or participate in as a general rule,” Musick said. “Any accused is innocent until proven guilty. I think anyone would be ashamed to have their face on TV. It’s become part of the times. Everyone shares those photos, and the media wants them.” Out of options
With the growing publicity for stings, however, attorney Chernoff said he believes the pretrial diversion program should remain a legal option for defendants. One client, he said, was ordered in the diversion program to tell his wife about his prostitution arrest and to have her write a letter to the court as a way of holding him accountable.
Those options are no longer available.
“The last time I requested a pretrial diversion, I knew I would be denied,” he said, “but you have to keep defending your client. I said, ‘Your policy doesn’t make any sense.’ ”