Revisiting Anna Moscowitz Kross's critique of New York City's Women's Court: the continued problem of solving the "problem" of prostitution with specialized criminal courts.

• Author: Quinn, Mae C.

1. INTRODUCTION

   Sex has been traded and sold at least since ancient times. Despite this history, in the United States, forceful anti-prostitution movements have periodically arisen. Such movements have been driven largely by individuals who, for various reasons, believe prostitution is a problem that poses a serious threat to our societal fabric. Time and again, these individuals have turned to the criminal justice system to solve that "problem."

   In response, jurisdictions across the country have criminalized prostitution and promoted its vigorous prosecution. Yet, the sale and trade of sex continues. Apparently frustrated by the standard criminal justice approach to prostitution, some regions have recently begun to experiment with a non-traditional, judicially-based response--specialized criminal courts. Perhaps the most well-known such institution is the Midtown Community Court in New York City.

   The Midtown Community Court was established in 1993 as a specialized, "innovative" court intended to address low-level crime, including prostitution, in the Times Square area. (1) Employing a purported "problem-solving" approach to quality-of-life offenses, the Midtown Court was intended to do more than ordinary criminal courts to address sex trade activities, and to help sex workers "leave the life." (2) To achieve its goals, the Court allowed community members to play a strong role in the institution's planning and development, involved itself in shaping local law enforcement responses to prostitution, and departed from existing criminal court procedures and sentencing practices. (3)

   Following the Community Court's first years of operation, fewer sex workers were seen in the Midtown Manhattan area. (4) Thus, proponents of the Court declared it had succeeded in its "problem-solving" mission and urged other communities to replicate the Midtown experiment. (5) And, indeed, other jurisdictions are following Midtown's lead. (6)

   In reality, the Midtown Community Court's "innovative" approach is far less novel than many might imagine. The use of specialized criminal courts to address prostitution is nothing new. In fact, it is an old idea that was first attempted in this country about a century ago. Perhaps the most notorious such institution was New York City's Women's Court, which opened its doors in 1910 and ultimately closed in the 1960s, after years of scandal, controversy, and failed efforts to prevent sex work. (7) New York City's Women's Court and the Midtown Community Court are, however, more than conceptually similar. Indeed, their development, their operational methods, and their impact on the practice of prostitution present remarkable parallels. In this Article, I examine the shared features and attributes of these court models, and argue that such institutions present their own set of problems that may threaten our societal fabric more than sex for money.

   I begin my analysis in Part II of this Article by recounting the history of New York City's Women's Court. In describing the development and operation of the Women's Court, I focus on the critique of Anna Moscowitz Kross. Kross, a contemporary of the institution, called for its reform over several decades--while a law student, a lawyer, and then as a New York City Magistrate serving on the Women's Court bench. Her extraordinary story as one of New York's early woman attorneys and jurists, to date, has not been recounted in legal scholarship. For this reason alone, her Women's Court work is worthy of examination. (8)

   More than this, Kross's well-founded criticisms of the Women's Court are historically and legally significant. For instance, as Part II describes, she questioned the wisdom of its proponents' moral reform agenda, condemned the undercover law enforcement methods it encouraged, and challenged its courtroom and sentencing practices, which she believed degraded and harmed women. Perhaps most importantly, Kross argued that the institution simply failed to do what it was intended to do--that is, prevent prostitution. In fact, Kross believed that prostitution should not be viewed as a criminal act, and could not be meaningfully addressed by the criminal justice system. Thus, she repeatedly urged abolition of the Women's Court. In 1967 her prescient plea was finally heeded when, after five decades of failed efforts to prevent prostitution, the New York City's Women's Court closed its doors. (9)

   In Part III of this Article, I examine the work of the Midtown Community Court, the "problem-solving court" established in 1993 to address criminal issues, like prostitution, in Midtown Manhattan. I discuss renewed concerns about sex work in New York and describe the movement, propelled by modern reformers, to address prostitution through specialty courts. As in my account of the Women's Court, I highlight the economic and other motivations underlying the Midtown movement, the police crackdown it has encouraged, and the various "innovative" courtroom and sentencing processes it employs. In addition, I describe the results of this most recent court experiment which, like the Women's Court, largely fails to suppress prostitution.

   Building on Kross's critique, in Part IV of this Article, I contrast the shared features and attributes of the Women's Court and Midtown Court models and offer my assessment that such institutions are less problem-solving than problematic. In operation, specialized criminal courts that have attempted to address the "problem" of prostitution instead have allowed for special interest control of the justice system, fostered undesirable police and judicial practices, and failed to meaningfully address social problems. Moreover, such institutions have worked to simply divert attention from the real issue relating to prostitution--that is, its continued criminalization.

   Thus, in Part V of this Article, I conclude by urging modern reformers to step back from the problem-solving court movement and their call for the creation of more such specialized criminal courts. Instead, I suggest that we need to carefully consider whether we are repeating history's mistakes and wasting limited government resources on social reform efforts that fail to produce substantive results.

2. ANNA MOSCOWITZ KROSS AND NEW YORK CITY'S WOMEN'S COURT

   This Part describes New York City's Women's Court, a specialty court established at the beginning of the last century to deal with prostitution. It focuses on the critique of Anna Moscowitz Kross, a contemporary of the Women's Court who believed that prostitution could not be meaningfully addressed by the criminal justice system and repeatedly called for the Court's abolition. Kross challenged the views of the Court's original proponents, the policing practices it encouraged, and its day-to-day processes. In addition, she argued that the Women's Court, which had been ridden with scandal, simply failed in its mission of suppressing prostitution. Her call for the end of the institution was finally heard in 1967 when, as this Part explains, the Women's Court finally closed its doors amid renewed controversy.

   1. Development of the Women's Court

      Anna Moscowitz, (10) a poor, teenage, Russian immigrant, (11) entered New York University Law School in 1908. (12) At that time, the law school had been admitting women for less than two decades, (13) and very few women were practicing lawyers. (14) Nevertheless, five-foot-two Moscowitz, a classmate and law school friend of Fiorello LaGuardia, boldly took on the cause of reforming the criminal justice system as a student. (15)

      One of Moscowitz's main concerns (16) was the treatment of women charged with prostitution and processed in New York City's Women's Night Court, which had only recently opened its doors. (17) Indeed, the Women's Night Court began operating in 1910, largely in response to complaints by forceful crusaders, (18) who for years sought to suppress the "social evil" of prostitution in New York City. (19)

      Starting at the turn of the century, vocal anti-vice advocates like Reverend Charles H. Parkhurst of the Madison Square Presbyterian Church, (20) and then the Committee of Fourteen, (21) a group of wealthy, influential citizens, complained that city officials, and in particular Tammany Hall politicians, (22) were not doing enough to prevent prostitution or fight the spread of venereal disease in New York City. (23) Responding to such complaints, New York Senator Clarence E. Lexow led an inquiry that demonstrated that law enforcement and city officials had been extorting payments from those running "disorderly houses" and brothels. (24) Moreover, many women who could not afford to bribe officers were threatened, arrested, and held at local station houses until they made bail, innocent or not. (25) Bondsmen, very much part of the scene, charged exorbitant rates to secure the women's release. (26) Courts did little to address the situation. (27)

      Following these discoveries, a specialized Night Court was established in 1907 within the City's Magistrates' Court system. (28) It was intended to help address concerns of anti-prostitution groups by preventing corruption and ensuring swift trials for accused prostitutes. (29)

      With the inception of the Night Court as a venue to press their "moral reform" agenda, the Committee of Fourteen and other anti-prostitution advocates encouraged police to conduct "emergency raids by the wholesale" of hotels and tenement buildings believed to serve as brothels. (30) In their fervor, those affiliated with the Committee engaged in vigilante tactics, personally collecting evidence and assisting in prostitution prosecutions. (31) In this frenzied atmosphere, it was not long before the same kind of police corruption and abuses that previously existed again took hold. (32)

      In 1908, when crusaders continued to complain that prostitution as a social problem was not being sufficiently addressed, Governor Charles Evan Hughes appointed yet...