The Underprosecution of Labor Trafficking
By
By
Annie Smith[1]*
For years, human trafficking has garnered substantial attention in the media, among lawmakers, and in concerned communities. Yet prosecutions remain relatively sparse, particularly for labor trafficking. In 2000, Congress enacted federal laws criminalizing both sex and labor trafficking.[2] Even still, only a tiny percentage of federal human trafficking prosecutions since that time have involved labor trafficking; the vast majority involve sex trafficking.[3] Despite its prevalence, only 5% of the 171 federal human trafficking prosecutions initiated in 2018 targeted labor trafficking.[4]
The underprosecution of labor trafficking fosters an environment where traffickers correctly believe they can act with impunity, resulting in exploited workers suffering outside of the law’s protection. Failure to prosecute reinforces the myth that all human trafficking is sex trafficking and that worker exploitation is neither a state nor public concern. It also increases the number of those who experience labor trafficking; traffickers can continue to victimize unabated and without meaningful consequences.[5] In the absence of prosecutions, trafficked workers are more likely to face ongoing fear and abuse.[6] They cannot readily access restitution or the relative peace of mind that come from knowing their traffickers are held accountable.[7]
Failure to prosecute also has real consequences for workers vulnerable to abuse. Nearly a decade ago, eighteen Filipino nationals employed at exclusive country clubs in South Florida and New York on temporary work visas filed a civil lawsuit alleging labor trafficking by their recruiter and labor contractor, Roberto Villanueva.[8] They alleged Villanueva violated the Trafficking Victims Protection Reauthorization Act (TVPRA)[9] by, among other things, withholding their immigration documents and threatening arrest, deportation, loss of work, blacklisting, and retaliatory litigation to compel them to work.[10] They reported serious harms including overcrowding, anxiety, depression, nightmares and difficulty sleeping, feelings of fear, difficulty concentrating, and limited access to food.[11] The court ordered a judgment against Villanueva in the amount of roughly $13.5 million.[12] Despite reports to federal prosecutors, another six years of exploitation passed and numerous others were exploited before Villanueva was finally arrested and charged. In early 2020, he pleaded guilty to forced labor and conspiracy to commit forced labor, and he now awaits sentencing.[13]
Anti-trafficking advocates and state actors have identified various ways in which to decrease the incidences of both sex and labor trafficking.[14] The now-familiar model, introduced in 1998, is to prosecute, prevent, and protect.[15] Building within and beyond the confines of this three-pronged framework, anti-labor trafficking strategies—developed largely by nongovernmental organizations and survivors—include educating on how to avoid common human trafficking schemes and what to do if trafficking occurs, reducing the structural inequities that make some populations more vulnerable to exploitation, and disrupting the financial and other benefits that flow from trafficking.[16] While these approaches are among the most promising methods of achieving widespread and lasting change, when pursued with care, prosecution remains another potentially useful—yet famously underutilized—tool in the fight against labor trafficking.[17]
This Article identifies possible causes of the ongoing and widespread failure to prosecute labor trafficking, including workplace exceptionalism, the labor trafficking eclipse, and maladaptive law enforcement strategies. It then proposes reforms to strategically increase prosecutions. The analysis is informed by insights of scholars across disciplines, anti-trafficking advocates, law enforcement officers, survivors, and prosecutors.
This Article proceeds as follows. Part II begins by outlining the federal laws that criminalize labor trafficking and describing these insidious crimes and their consequences. Part III then examines the scarcity of federal labor trafficking prosecutions. Part IV considers barriers to the identification, investigation, and subsequent prosecution of labor trafficking. Part V critiques a carceral approach and argues for thoughtfully and strategically increasing appropriate labor trafficking prosecutions. Finally, Part VI concludes by identifying existing efforts and offering additional reforms to increase the number of federal labor trafficking prosecutions.
Labor trafficking is a longstanding global problem, yet the crimes associated with it and their many consequences are still not widely understood. This Part outlines the legal framework that criminalizes labor trafficking in the United States, illustrates the many forms it can take, considers the scant data regarding its pervasiveness, and explores its profound and lasting consequences.
Although slavery was prohibited by the Thirteenth Amendment, prohibitions on involuntary servitude, peonage, and human trafficking came later.[18] Among other things, the Trafficking Victims Protection Act of 2000 (TVPA) expanded the existing handful of federal crimes that addressed such conduct to include forced labor (18 U.S.C. § 1589) and trafficking with respect to peonage, slavery, involuntary servitude, or forced labor (18 U.S.C. § 1590).[19] The federal crime of sex trafficking was created as part of this same sweeping legislation.[20] While the particular conduct underlying sex and labor trafficking crimes is largely distinct, all of the conduct clearly falls within the definition of human trafficking applied in other areas of federal law.[21]
With urging by local groups and national organizations like Polaris, all states have now also criminalized human trafficking. Though definitions of the crime vary between federal law and state laws, they generally incorporate both sex and labor trafficking.[22]
Labor trafficking can take many forms, and it includes the use of threats and other methods of psychological coercion, physical restraint, or physical force to compel work.[23] Consider the following examples. In one instance, a ring of human traffickers recruited teenagers from Guatemala, promising them education and employment.[24] The traffickers smuggled at least ten young men into the United States and then forced them to live in dilapidated trailers on a rural Ohio egg farm where they were made to work long hours for virtually no pay cleaning chicken coops, loading and unloading crates of chickens, and debeaking and vaccinating chickens.[25] The traffickers threatened the men with deportation and harm to their families.[26]
In another instance, a South Carolina restaurant manager compelled an intellectually disabled U.S. national to work at a restaurant for nearly 100 hours each week and for no pay.[27] The trafficker used physical and emotional abuse to punish the trafficked individual for making mistakes or working too slowly.[28] He beat the employee and, on one occasion, burned his neck with metal tongs.[29] The trafficker also yelled at and demeaned him with racial slurs.[30] This forced labor continued for nearly five years.[31]
Owners of a Florida labor staffing agency similarly compelled roughly forty Filipino workers lawfully present in the United States on temporary visas to work in country clubs and hotels in Southeast Florida.[32] They used false promises to get the victims to incur recruitment-related debts and then compelled them to work using threats of arrest and deportation, knowing the economic and legal harms the victims would face in the Philippines if they failed to pay those debts.[33]
Additionally, in a Dallas suburb, a couple arranged for a young child to come from a small, rural village in Guinea to live and work in their home.[34] The child—who was undocumented—was physically, verbally, and emotionally abused and compelled to cook, clean, and eventually provide childcare for the couple’s children.[35] The traffickers called her “idiot,” “worthless,” “dog,” and “slave.” Among other abuses, they pulled her hair, hit, choked, and whipped her.[36] The traffickers, who were well-respected community members, never enrolled the child in school and kept her in servitude until neighbors helped her escape after sixteen years.[37]
At a Nebraska Super 8 Motel, a man was forced to work long hours cleaning and doing other tasks.[38] Being told that he needed to pay of a debt to his traffickers, the man received no pay for his work despite promises to eventually be compensated.[39] He was isolated, and his movements were restricted by the traffickers.[40] They threatened to find him if he escaped, and they verbally abused and assaulted him.[41] The trafficking lasted for over a year.[42]
These real-life instances of labor trafficking reveal the many ways in which traffickers seek to compel work using tactics including threats, physical force, and other forms of coercion. The examples demonstrate, too, the diversity of both labor traffickers and their victims as well as the varied circumstances in which trafficking takes place. While different in some ways, each example demonstrates how traffickers exploit existing inequalities and power imbalances to compel work.
Human trafficking statistics are notoriously unreliable.[43] A recent study found that “[o]nly a fraction of the estimated human trafficking victimization in local communities is captured in either law enforcement and service provider data.”[44] Identifying labor trafficking is particularly challenging.[45] Historically, labor trafficking has also been overshadowed by sex trafficking when it comes to empirical research—just as it has elsewhere.[46] Nonetheless, some sources can provide insights regarding at least baseline numbers of known or highly likely instances of labor trafficking.[47]
Polaris operates the National Human Trafficking Hotline and releases data regarding the number of probable instances of human trafficking reported.[48] Those who suspect or experience human trafficking can make reports or seek assistance via call, text, or online chat to the free and confidential hotline.[49] The numbers reported by Polaris underestimate the total incidence of human trafficking yet remain useful to understanding the scope of the problem.[50] In 2018, through reports to the hotline, Polaris identified 10,949 potential human trafficking cases, 23,078 potential victims, 5,859 potential traffickers, and 1,905 suspicious businesses.[51] Of these numbers, a suspected 17% of potential human trafficking cases involved labor trafficking, and of these, approximately 6,923 individuals were identified as potential victims (30% of the total reported human trafficking victims).[52] In 2019, the hotline identified an additional 1,236 potential cases involving labor trafficking.[53]
Although one of the more focused studies on the incidence of labor trafficking is now nearly a decade old and was narrow in scope, it offers a snapshot of the prevalence of labor trafficking within a specific population.[54] The 2012 study of undocumented and primarily Mexican national migrant workers in San Diego County found a 30.9% estimated rate of labor trafficking victimization.[55] Based on his findings, the author projected there were 38,458 victims of labor trafficking in San Diego County and “guestimate[d]” as many as 2,472,000 trafficking victims among undocumented Mexican immigrants nationally.[56] Even if this is a substantial overestimation and only a fraction of such abuses occur, it nonetheless suggests there are many more cases of labor trafficking than there are prosecutions.
Another and much cruder means to understand the incidence of labor trafficking is to examine the number of federal civil lawsuits filed alleging it. Over a fifteen-year period, 299 suits were filed in federal courts alleging human trafficking—sometimes on behalf of numerous survivors.[57] Of those, roughly 91% (274 cases) involved forced labor claims; just 9% (25 cases) included sex trafficking claims.[58] Only 7% (19 cases) of these forced labor civil lawsuits were either involuntarily dismissed or resulted in judgments for the defendants.[59] These numbers likely dramatically underrepresent the amount of labor trafficking that takes place in the United States as civil suits require the trafficked individuals—or someone they were in contact with—to identify the abuses; access legal counsel with the capacity and willingness to provide assistance; and choose to make the investment of bringing a civil suit, which is sometimes a demanding process that can take years to resolve.[60] Additionally, some may settle their claims prior to initiating suit, and there is no record of these settlements.
Federal law enforcement figures reflect the challenges faced in identifying labor trafficking as well as the common limitations in accurately recording crimes. In 2017, the Federal Bureau of Investigation (FBI) reported 225 offenses of involuntary servitude and another 149 in 2018.[61] These numbers reflect merely 12% to 22% of sex trafficking cases reported in those same years.[62]
A study seeking to document all state and federal arrests for the charge of “labor trafficking” from 2013 to 2016 identified 125 arrests and 120 trafficked individuals during this three-year period.[63] The study almost certainly underreported arrests as it relied on limited search methods to identify them.[64] Of course, for the many reasons articulated throughout this Article, arrests also do not begin to capture all actual occurrences of labor trafficking.
Available data about immigration applications filed by trafficked foreign nationals provides another source of information. From 2008 through 2019, 10,802 foreign nationals submitted T visa applications seeking immigration relief as victims of human trafficking.[65] By the end of 2019, 6,780 had been granted.[66] Information about the number of T visa applications based on labor (rather than sex) trafficking is not available.[67] While the numbers of T visas sought and granted are poor surrogates for concrete data about the actual incidence of human trafficking,[68] they offer another point of data to consider when assessing the sufficiency of federal labor trafficking prosecutions.
Those subjected to labor trafficking suffer substantial and often persistent harms.[69] According to the U.S. Department of Health and Human Services, consequences of labor trafficking can include “helplessness, shame and humiliation, shock, denial and disbelief, disorientation and confusion, and anxiety disorders including posttraumatic stress disorder (PTSD), phobias, panic attacks, and depression.”[70]
Survivors of labor trafficking have reported prolonged fear and anxiety,[71] disrupted sleep, nightmares, difficultly developing trust, depression, difficulty concentrating, stress,[72] isolation,[73] humiliation, shame, embarrassment,[74] trauma, suicidal thoughts,[75] and emotional distress so profound that it manifested physically and resulted in hospitalization.[76]
Through their examinations of labor trafficking survivors, expert witnesses have identified additional harms including adjustment disorder with mixed anxiety and depressive moods,[77] PTSD, major depressive disorder,[78] hyperfocus on negative events,[79] anhedonia, insomnia, poor concentration, poor memory, palpitations, chest pain, and headaches[80] as well as symptoms of dissociation, hyperarousal, mood dysregulation, and changes in neurovegetative indicators.[81]
In a case involving domestic servitude over an eighteen-month period, a clinical psychologist’s evaluation revealed ongoing suffering nearly two years after the labor trafficking ended.[82] She noted the trafficked individual was “unequivocally scarred” and had “lost interest in friendships and self-care. [He] lives in an atmosphere of sadness and disappointment, experiences recurrent recollections and terrifying dreams of his abuse, distrusts authority, and suffers from headaches.”[83] The psychologist anticipated that he likely would experience many of those symptoms for several more years and some symptoms for up to two decades longer.[84]
The impacts of labor trafficking are not solely psychological. Restricted access to medical care, including dental, by traffickers is common.[85] In some instances, labor trafficking includes physical assault, which is sometimes sexual.[86] Poor housing conditions are also prevalent.[87] Each of these can result in additional physical and emotional harm. Trafficked individuals may also be subjected to forced criminalization and, if paid at all, they are frequently underpaid.[88]
Labor trafficking is most prevalent in industries that are already dangerous, physically demanding, and underregulated. These include agriculture, construction, and domestic work.[89] Furthermore, trafficked individuals are likely to labor for long hours, in risky circumstances, while exhausted, and without proper protective equipment or training.[90]
Labor trafficking has negative impacts beyond trafficked individuals.[91] Family members can face threats, financial consequences, and prolonged separation from their loved ones.[92] Law abiding employers face unfair competition from traffickers who, as part of their labor exploitation schemes, pay unlawfully low wages, fail to pay payroll taxes, and otherwise reduce their business expenses through illegal means.[93] The public bears the costs of labor traffickers’ other common violations of the law, including the failure to pay income taxes or make required unemployment and workers’ compensation contributions.[94] Restrictions on an employee’s ability to move between employers may also distort local labor markets.[95]
That labor trafficking is underprosecuted is uncontroversial.[96] The federal government itself acknowledges the problem in what has become an annual ritual.[97] The Trafficking in Persons (TIP) Report, issued each year by the U.S. State Department, assesses the extent to which each country meets the standards set forth in the TVPA and makes recommendations based on that country’s performance.[98] Since 2014, increasing prosecutions of labor trafficking has been among the top recommendations for the United States.[99] In 2018, 2019, and 2020, the very first recommendation remained the same: to “increase investigation and prosecution of labor trafficking cases.”[100]
This Part argues that the United States must prosecute labor trafficking and details how it continues to fail to do so by examining the disappointingly few federal prosecutions initiated between 2017 and 2019.
The U.S. government has a unique ability and duty to prosecute labor trafficking.[101] The Criminal Section (CS) of the Civil Rights Division (CRT) within the U.S. Department of Justice is mandated[102] to enforce a variety of civil rights laws, including an array of criminal statutes associated with human trafficking.[103] Human trafficking-related crimes include forced labor, trafficking with respect to servitude, and other crimes enumerated in Chapter 77.[104]
The FBI conducts most of the CRT’s investigations, including human trafficking investigations—particularly when child sex trafficking is involved.[105] The Civil Rights Unit of the FBI is responsible for labor trafficking investigations.[106] Homeland Security Investigations (HSI) of the Department of Homeland Security (DHS) also investigates human trafficking, as do the Diplomatic Security Service (DSS) and a handful of other federal agencies.[107]
In 2019, the FBI and HSI each served as the primary investigative agency in just under half of labor trafficking prosecutions.[108] DSS was the lead investigative agency for roughly 7% of them.[109] These numbers are fairly consistent with the 2018 data.[110] In 2017, by contrast, the FBI was identified as lead investigator in just 36% of the labor trafficking prosecutions, while HSI led 58% and DSS led under 10%.[111]
Federal labor trafficking prosecutions are scant.[112] In 2016, sex trafficking cases made up 96.3% of all active federal human trafficking prosecutions.[113] The trend continued in 2017 when the Human Trafficking Institute (HTI) identified 695 active federal human trafficking prosecutions.[114] Of those, merely thirty-four were labor trafficking cases.[115] The remaining 95.1% were sex trafficking cases.[116] In 2018, HTI’s findings were much the same; of 680 active federal human trafficking prosecutions, only thirty-five predominantly involved labor trafficking.[117] In 2019, 94.9% of the active cases focused on sex trafficking and approximately 5%—just thirty-one cases—of them were labor trafficking cases.[118]
Put into more stark terms, federal prosecutors filed only eleven new labor trafficking criminal cases in 2017 and only nine per year in 2018 and 2019.[119] In 2019, prosecutors initiated labor trafficking prosecutions in only eight federal judicial districts.[120] In the vast majority of U.S. states and territories, not a single federal criminal labor trafficking case was filed.[121]
By contrast, there were a total of 69,412 federal criminal cases filed during fiscal year 2019.[122] Among them, 30,665 were for immigration-related offenses, 13,704 were for drug-related offenses, and 826 were for theft-related offenses.[123] While these higher volume cases undoubtedly involve more commonly occurring offenses and require fewer resources to investigate and prosecute, they are also much less serious by nearly any metric.
Comparing available National Human Trafficking Hotline reports with federal prosecutions offers another disappointing perspective.[124] It is unlikely that all cases identified by the hotline actually constitute labor trafficking and certainly not all are possible or appropriate to federally prosecute. Nonetheless, the comparison is discouraging. The hotline reported 127 potential cases of labor trafficking and an additional fifty-eight potential cases involving both sex and labor trafficking in Florida during 2018.[125] Only one federal trafficking prosecution was initiated in Florida that same year.[126] For Texas, the hotline reported 118 potential cases of labor trafficking and eighty-nine more involving sex and labor trafficking in 2018.[127] Only two federal labor trafficking prosecutions were filed that year in all of Texas.[128] In Ohio, there were no federal prosecutions of labor trafficking initiated in 2018 despite sixty-two reports to the hotline.[129] The calls are likely just the tip of the iceberg in terms of labor trafficking, yet there remains a serious disparity between the number of credible calls received and federal prosecutions.[130]
The problem of underprosecuting labor trafficking is not restricted to the United States and may be getting worse.[131] Former U.S. Ambassador to Monitor and Combat Trafficking in Persons, Luis C.deBaca, reviewed the 2020 TIP Report with concern and noted, “There were apparently only [twenty-eight] labor cases brought in the entire Western Hemisphere, with the U.S. appearing to have brought [twenty-one] of them.”[132] He pointed out that this was the lowest number of labor trafficking prosecutions identified since the report was first issued nearly two decades ago.[133]
The ongoing failure to adequately prosecute labor trafficking is likely the result of various converging causes. Barriers exist both at the early stages of identification and investigation and at the prosecution stage.[134] Some apply exclusively to labor trafficking while others similarly plague sex trafficking, other crimes, and victimized communities.[135]
This Part examines the barriers most likely to impede the identification and investigation of labor trafficking. It then considers additional obstacles that further inhibit labor trafficking prosecution.
Law enforcement has struggled to identify labor trafficking and has, in large part, failed to put in place the widespread training and procedures necessary to effectively investigate it.[136] Prevalent barriers include workplace exceptionalism, pervasive myths, the labor trafficking eclipse, isolation of victims, fear and distrust of law enforcement, ongoing and credible coercion, skepticism of foreign national victims, insufficient training, reactive policing, reliance on traditional policing methods, and the absence of dedicated units.[137]
Any examination of the failure to adequately prosecute labor trafficking must be grounded in an understanding of the broader norms surrounding policing of employer conduct toward workers.[138] Workers rarely benefit from the protection of the criminal justice system.[139] To some, regulating employers and conduct associated with the workplace may seem like a purely civil matter not appropriate for law enforcement intervention.[140] However, unlawful employer conduct has been normalized.[141] Bias makes it less likely that employers will be viewed as criminals—particularly when they operate in otherwise lawful industries.[142] Yet employers can and do engage in harmful and illegal conduct against workers. Indeed, violations are pervasive.[143]
What this Article refers to as “workplace exceptionalism” is the broad exclusion of employer conduct from meaningful state oversight and the exclusion of all but the most egregious employer conduct from criminal liability.[144] Workplace exceptionalism aggravates existing disparities in bargaining and other forms of power between employers and employees.[145] It also means that workplaces largely operate outside of law enforcement’s reach.[146]
Most federal laws governing the workplace, including the Fair Labor Standards Act (FLSA) (child labor, minimum wage and overtime requirements, equal pay), the National Labor Relations Act (the right to organize and union conduct), the Occupational Safety and Health Act (OSHA) (workplace safety), Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Age Discrimination in Employment Act (discrimination), and others are enforced by specialized federal agencies empowered to monitor U.S. workplaces.[147] These agencies are commonly underfunded and have insufficient resources to adequately monitor compliance or to enforce the law when violations occur.[148]
Other than labor trafficking laws, only a handful of federal labor and employment laws provide for criminal liability[149] and employers are almost never prosecuted.[150] Under OSHA,[151] employers can be criminally prosecuted when an employee dies in the workplace as a result of a willful violation of the Act; such prosecutions are rare.[152] Willful violations of the FLSA’s minimum wage and overtime requirements, its prohibition on child labor and retaliation, and some of its other mandates can likewise result in criminal liability for employers but almost never do.[153] Failure to pay wages has also been criminalized in some state and local jurisdictions.[154] Yet anecdotal evidence suggests these prosecutions remain relatively uncommon as well, despite the widespread prevalence of wage theft.
When violence or overt physical force is present, law enforcement agencies are more likely to view policing the workplace as part of their role.[155] However, many labor trafficking and labor exploitation cases do not involve physical violence or restraint but instead involve more subtle means of coercion and abuse of the legal process, which are no less sufficient to trigger protections under federal law.[156] Workplace exceptionalism thus operates as a foundational barrier to the identification, investigation, and prosecution of labor trafficking.[157] The barriers discussed in the sections that follow, including pervasive myths about human trafficking, act as further impediments.[158]
Misunderstandings about human trafficking abound. These widely accepted myths impede the ability of both the public and law enforcement to identify human trafficking.[159] The myths are reinforced by sensationalized images, popular media, and well-intentioned but ill-informed community members.[160] They include the beliefs that human trafficking requires movement, that human trafficking is equivalent to smuggling,[161] that physical force or restraint is a required element of human trafficking,[162] that victims are largely young and female,[163] and that sex trafficking is the sole form of human trafficking.[164]
These and other misconceptions make it particularly challenging to identify and investigate labor trafficking.[165] For example, trafficked individuals sometimes travel to and from work on their own.[166] Law enforcement officers might incorrectly assume this apparent freedom of movement means the workers cannot be experiencing labor trafficking. In other instances, workers who complain of unpaid wages or threats from their bosses may be viewed as having “only” a civil employment concern.[167] Finally, trafficked individuals themselves may not be aware that the abuse they are experiencing is human trafficking.[168]
One of the most persistent myths about human trafficking is that it consists exclusively of sex trafficking.[169] Many members of the public—and some in law enforcement—do not realize that there are indeed two forms of human trafficking: sex and labor.[170] This widespread misconception makes it likely that labor trafficking is underreported by the public. Law enforcement officers may resist investigating workplace related concerns as they also fail to recognize them as possible human trafficking.[171] Additionally, it may be harder for prosecutors to convince judges, and especially jurors, that labor trafficking is indeed a form a human trafficking. Just as harmful, if prosecutors believe they will face these hurdles at trial, they will be less likely to undertake labor trafficking cases in the first place.
Even when it is understood that both sex and labor trafficking exist, sex trafficking receives more attention and resources.[172] This “labor trafficking eclipse”—referring to the domination of sex trafficking to the near exclusion of labor trafficking—almost certainly results in fewer cases of labor trafficking being identified by the public and law enforcement; less training and community education focused on labor trafficking; and fewer community-based organizations and efforts working to eradicate labor trafficking and assist survivors.[173] This eclipse also likely makes it more politically popular to criminally to pursue sex traffickers over those engaged in labor exploitation. Additionally, it can have the unfortunate effect of “tend[ing] to portray women trafficked into commercial sex as helpless victims rather than resilient survivors.”[174] Efforts to address the labor trafficking eclipse have been made, but with some limited success, it nonetheless persists.[175]
Labor trafficking can be a “hidden crime.”[176] Some trafficked individuals are largely hidden from public view and are outside of law enforcement’s easy reach—living inside a home or at a remote farmworker labor camp, which can make identification much more challenging.[177] This problem was likely aggravated by the COVID-19 pandemic and the resulting mandated quarantines, isolation, stay-at-home orders, and temporary closures of healthcare offices, service provider offices, places of worship, and more.[178] In other instances, though, trafficked individuals come into contact with the public—and even law enforcement—on a daily basis.[179] For example, a trafficked woman from Malawi lived in Maryland for several years in domestic servitude next door to a police officer.[180] Victims have experienced labor trafficking while working as servers in country clubs and nurses in nursing homes, coming into contact with numerous members of the public every day.[181] Although contact alone does not guarantee better outcomes, it is more challenging to identify labor trafficking among those who are geographically remote, have extremely limited contact with others, or are linguistically isolated due to language difference.[182]
Labor trafficking victims and witnesses may be afraid of law enforcement—and particularly of immigration enforcement.[183] Traffickers exploit this fear and commonly threaten arrest or deportation.[184] Collaboration between local and state law enforcement agencies and the DHS’s Immigration and Customs Enforcement (ICE) only heightens these fears and makes it less likely trafficked individuals will cooperate with law enforcement officers or seek their assistance.[185] A 2018 study showed trafficked individuals have reason to be concerned; roughly 30% of labor trafficking victims studied were arrested along with their traffickers, mostly in the context of ICE raids.[186] Anti-immigrant rhetoric and the harsh policies of President Trump and his Administration only aggravated the situation and enhanced traffickers’ sense of impunity.[187]
For years, advocates and scholars have repeatedly pointed out that the structure of the U.S. guestworker visa program creates inherent vulnerability for workers that can be and is exploited by traffickers and others.[188] Low-wage and other guestworkers’ lawful presence in the United States arises from guestworkers’ relationships to their employers.[189] Work visas are generally not portable; guestworkers’ visas are linked to their particular employer.[190] If their job ends, whether they quit for good reason or are fired for a bad one, guestworkers lose their immigration status and ability to remain and work in the United States.[191] The extreme power difference this creates coupled with heightened anti-immigrant policies and rhetoric by state actors, including the U.S. President, can only enhance guestworkers’ fears of arrest and deportation and their distrust of law enforcement.[192]
Importantly, beyond victims and witnesses, there are service providers, lawyers, labor organizers, and others who have direct contact with labor trafficking survivors and are themselves extremely reluctant to encourage undocumented survivors to report to or collaborate with law enforcement unless they have an existing and trusting relationship with a particular law enforcement officer or agency.[193] Usually this issue arises in cases involving undocumented survivors, as there are concerns that they will be detained and deported rather than treated as victims of a federal crime who are eligible for immigration and other relief.
The murders of George Floyd, Breonna Taylor, and others during the spring and summer of 2020 once again brought into the national spotlight ongoing police violence against Black people, the disproportionate policing of predominantly Black communities, and disparities in the charging and sentencing of Black criminal defendants and other people of color.[194] The racism deeply embedded in our institutions, including in law enforcement, likely makes some labor trafficking victims and witnesses more reluctant to interact with law enforcement in any capacity.[195]
Federal laws, federal policies, and law enforcement’s own conduct facilitate labor trafficking and also create considerable barriers its prosecution.[196]
While a labor trafficking situation is ongoing, trafficked individuals may be afraid to report the abuse due to their traffickers’ threats and schemes. Among the federal labor trafficking prosecutions active in 2019, the top forms of coercion and control reportedly used by traffickers were withholding pay, physical isolation, threats of physical abuse, actual physical abuse, and verbal or emotional abuse.[197] Foreign national victims also commonly had their immigration documents withheld and experienced threats of deportation. [198]
Even after a particular trafficking situation ends, in some instances, trafficked individuals nonetheless continue to fear their traffickers and be compelled by their prior or ongoing threats and other forms of coercion, including fear of retaliation for cooperating with law enforcement.[199] These understandable fears can impact victims’ willingness to participate in a criminal investigation.[200]
For example, in an instance of debt bondage involving a young farmworker, his labor recruiter took the deed to the farmworker’s family land in his country of origin as security for a loan to pay for travel expenses to his workplace in the United States.[201] The recruiter told the farmworker he had to work for him until the debt was paid off. If he did not, the farmworker’s family would lose their land. With the assistance of a legal service agency, the farmworker fled the labor camp where he had lived under the supervision of the trafficker. He was provided safe housing, free food, and legal and other services. However, a few weeks after leaving, he returned to the trafficker because he continued to fear what would happen to his family if he failed to do so.
The power of traffickers’ coercion does not necessarily disappear the moment the trafficked individual is no longer under their immediate control.[202] This is particularly true when transnational workers are involved where, for example, traffickers may continue to make threats against family members or communities in the worker’s country of origin, including threats to physically harm or blacklist individuals from future employment.[203] Even if law enforcement officials try, they may struggle to meaningfully intervene and disrupt the coercion in such a context. Furthermore, even where traffickers stop actively making threats, survivors may continue to fear their prior threats.
While sometimes a barrier, victims’ fears should not be viewed as the primary reason for the failure to prosecute labor trafficking. There have been multiple instances where individuals who experienced labor trafficking were eager to participate in a prosecution, yet federal prosecutors declined.[204] Furthermore, when trafficked individuals are provided the time, services, and security they need, they are much more likely to be willing and able to engage in investigations and subsequent prosecutions.[205]
Ironically, immigration remedies intended to make it easier to prosecute labor trafficking cases may have become barriers to it. For example, Continued Presence is a temporary immigration status granted to victims of human trafficking that are designated by law enforcement as potential witnesses in a future prosecution.[206] This status permits the individual to remain in the United States, to work, and to receive government benefits and services.[207] It is intended to be sought immediately when law enforcement officers determine an individual is a likely victim of human trafficking.[208] Some law enforcement officers are nonetheless reluctant to seek Continued Presence for victims.[209] Advocates continue to raise concerns that very few requests for Continued Presence are made and that, when made, they are more likely in cases involving sex trafficking.[210]
Longer-term immigration relief is also available for foreign national victims of labor trafficking, including T and U visas.[211] Applications for each are strengthened by a law enforcement officer’s certification of the applicant as a victim of human trafficking.[212] Law enforcement agencies are not required to sign these certifications, and some agencies refuse to do so or unnecessarily delay the process.[213]
Some law enforcement officials have expressed skepticism about the veracity of foreign nationals’ reports of trafficking because the officers believe they must be ruses invented to secure immigration relief.[214] Among other things, this betrays an absence of effective training, and this law enforcement skepticism is yet another impediment to investigating and prosecuting labor trafficking. It means officers are less likely to seriously investigate allegations or to assist in securing either Continued Presence, a T visa, or a U visa. Consequently, skeptical officers fail to facilitate the stability and security survivors need to participate in a successful prosecution.
Labor trafficking demands strategic, persistent, and thoughtful approaches in ways that can differ from more traditional policing methods.[215] Specialized training is needed to ensure that law enforcement officers are more effective at identifying instances of labor trafficking and investigating these crimes once they are identified—this includes appropriate victim engagement.[216] Both front-line officers and more experienced officers, such as detectives, need customized labor trafficking training that focuses on their role in identification and investigation, the unique patterns and types of evidence they should gather, and the investigation tools available to them.[217]
State and local police officers are more likely than federal agents to encounter ongoing labor trafficking in the community.[218] Yet these officers, in addition to federal officers, currently receive insufficient labor trafficking training.[219] For example, a 2020 report by the Little Hoover Commission on coordinating a human trafficking response in California found that officers and public safety dispatchers have access to only minimal training on labor trafficking.[220] To the extent there is human trafficking training at all, it focuses primarily on sex trafficking.[221]
Hopefully progress has been made in the intervening years, but a comprehensive 2008 study of 3,000 state, county, and local law enforcement agencies found that roughly 75% of them perceived human trafficking of any kind to be rare or nonexistent in their jurisdiction.[222] If they do not believe it is there, law enforcement officers are highly unlikely to find labor trafficking.[223]
Law enforcement officials may also reasonably struggle to understand exactly what conduct criminal labor trafficking statutes cover.[224] In a 2019 study of labor trafficking in four U.S. communities, law enforcement officers raised concerns over not receiving sufficient guidance on how to distinguish labor trafficking crimes from civil labor and employment matters.[225]
To the extent that labor trafficking investigations involve intricacies related to wages, work visas, and other potentially unfamiliar topics, they may seem cumbersome, overwhelming, or irrelevant to some in law enforcement.[226] Additionally, law enforcement officers may not know which agencies are useful partners in investigations, thus deterring investigations in the first place—for example, a state’s department of labor that is tasked with enforcing minimum wage and overtime requirements.[227]
Although existing law enforcement strategies may function effectively for some purposes, they operate as substantial barriers to the identification and investigation of labor trafficking. These include reactive policing models, reliance on traditional methods, and agency unit organization. Police methods for identifying and investigating labor trafficking and the structure of certain law enforcement agencies are maladaptive when it comes to labor trafficking.
Law enforcement officers receive few reports of labor trafficking.[228] Members of the public and victims themselves may not realize that the labor exploitation they are seeing is human trafficking.[229] This is particularly concerning because, until now, federal labor trafficking cases have primarily come to light only after trafficked individuals proactively reported to law enforcement or had a third party, such as an advocate or friend, do so on their behalf.[230] If law enforcement waits for compelling reports from victims to percolate up to them, there will likely continue to be limited numbers of labor trafficking prosecutions.[231]
Bringing change to policing can be a very challenging and slow process.[232] The laws that criminalize labor trafficking are relatively new. In its current form, labor trafficking has been a federal crime for twenty years and a crime under state laws for even fewer.[233]
Due to law enforcement’s substantial and longstanding experience policing vice and commercial sex, officers are more prepared to identify and investigate the criminal activity and networks commonly associated with sex trafficking.[234] Reliance on traditional policing methods, including undercover and sting operations, will yield few—if any—labor trafficking leads.[235] Using vice tactics like these may prove somewhat useful in investigating sex trafficking but would not be useful for investigating labor trafficking.[236] Other techniques used for sex trafficking investigations, such as online surveillance, also may not readily apply to labor trafficking.[237]
Traditionally, identification and investigation of sex trafficking by federal officials has occurred using a task force model and with the participation of law enforcement officers already policing commercial sex.[238] These officers often use law enforcement tools including operations targeted to both sellers and buyers, electronic surveillance, financial investigations, and outreach to those who may come in contact with individuals experiencing sex trafficking.[239] As described above, in comparison, most federal labor trafficking prosecutions are initiated by reports to law enforcement.[240] More proactive, creative, and customized approaches are needed to identify and investigate these crimes.
Furthermore, labor trafficking often occurs in locations and industries that law enforcement does not typically police.[241] These include homes of wealthy individuals, country clubs, construction sites, and farm labor camps located deep within private property.[242]
Many law enforcement agencies—particularly local ones—do not have a suitable or obvious unit that can be responsible for investigating labor trafficking; in the absence of such a home, labor trafficking can fall through the cracks.[243] Law enforcement agencies with training, a dedicated unit, or established protocols dedicated to human trafficking are two to three times more likely to identify it.[244] Currently, when human trafficking is assigned to a unit, it is likely to be part of a vice unit that tends to focus on sex trafficking.[245] This lack of dedicated units is another example of the absence of widespread institutional commitment to addressing labor trafficking.[246]
Labor traffickers sometimes hold positions considered to be legitimate—even prestigious—and thus may not be as readily suspected of the serious and degrading crimes they commit.[247] A study found that individuals arrested for labor trafficking from 2013 through 2016 (and for whom such information was available) held seemingly legitimate jobs as small business owners, law enforcement officers, and even—in a small number of instances—public figures.[248]
Bias against immigrants can also serve as a barrier to identifying, investigating, and ultimately prosecuting labor trafficking cases.[249] Related barriers include cultural and language differences between law enforcement officers and trafficked individuals.[250]
An additional hurdle is that labor trafficking occurs in diverse settings.[251] It can be challenging for law enforcement to gain the competence needed to work across so many industries.[252] Furthermore, the definitions of labor trafficking crimes themselves may confuse officers seeking to enforce them or may raise concerns of misinterpretation.[253] Local front-line law enforcement officers generally work in shifts and have limited time and resources that are not conducive to the effective investigation of labor trafficking. Finally, other barriers include the impacts of trauma[254] and the fact that trafficked individuals do not necessarily self-identify.[255]
Many of the barriers that impede identification and investigation of labor trafficking also influence whether prosecutors move forward with criminal charges.[256] Additionally, labor trafficking prosecutions are further limited by case complexity, proof concerns, desire for the perfect victim, institutional disincentives, and insufficient resources.
Human trafficking cases can be challenging to prosecute.[257] According to the CRT, “each case requires a dedication of time, resources, and specialized skill in jurisdictions across the country and around the globe.”[258] In each of its last three performance reports, the CRT acknowledged the difficulty and demands of investigating and prosecuting human trafficking, which it planned to counter by dedicating “time, resources, and specialized skill in jurisdictions across the country.”[259] Prosecutions require substantial time, in part, to ensure victim witnesses are stable and able to testify credibly.[260]
Labor trafficking cases, in particular, can be demanding.[261] In addition to other reasons offered throughout this Article, the unlawful conduct often unfolds over a period of months or even years.[262] There are frequently multiple victims and jurisdictions involved.[263] Pursuing prominent or influential members of the business community in labor trafficking cases can also be challenging and politically unpopular.[264] Among other things, defendants with financial assets can more readily mount vigorous legal defenses.
Labor trafficking prosecutions frequently require prosecutors to prove psychological coercion beyond a reasonable doubt.[265] Prosecutors in labor trafficking cases must show the use of force, certain forms of fraud, or coercion.[266] Specifically, the crime of forced labor requires that the defendant knowingly provided or obtained the labor or services using at least one of the following: (1) “force, threats of force, physical restraint, or threats of physical restraint”; (2) any harm, “whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm”; (3) “abuse or threatened abuse of law or legal process . . . whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action”; or (4) “any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.”[267] The crime of “trafficking with respect to peonage, slavery, involuntary servitude, or forced labor” also requires a showing of similar types of conduct by defendants.[268] The TVPA extends criminal liability to any person who “knowingly recruits, harbors, transports, provides, or obtains by any means, any person for labor or services in violation of [Chapter 77 of the U.S. Criminal Code].”[269]
By comparison, in minor sex trafficking cases, there is no need to prove force, fraud, or coercion of any kind.[270] Essentially, so long as the prosecution can show a minor engaged in commercial sex, which in some cases can be proved without victim testimony, the prosecution has met the most challenging aspect of its burden of proof.[271] This may explain, at least in part, why there are more minor sex trafficking prosecutions than either adult sex trafficking or labor trafficking.[272]
The majority of recent human trafficking prosecutions involved exclusively child sex trafficking victims: 65.8% of all federal human trafficking prosecutions in 2017,[273] 54.4% in 2018,[274] and 60.1% in 2019.[275] Another portion of these prosecutions involved sex trafficking of minors and adults: 15.4% in 2017,[276] 17.1% in 2018,[277] and 19.6% in 2019.[278]
Sting operations are another way that prosecutors can mitigate their concerns about proof at trial—at least in sex trafficking prosecutions. Some sex trafficking cases involve sting operations, where a law enforcement officer poses as a would-be victim.[279] In those cases, the need for a testifying victim is obviated altogether. In 2019, eighteen sex trafficking cases were filed based solely on sting operations (12.4% of all human trafficking prosecutions initiated in 2019).[280] By contrast, a total of nine labor trafficking cases were filed that same year.[281]
Prosecutors themselves may be skeptical about whether the psychological coercion involved in labor trafficking was sufficient to constitute a crime.[282] Even when they believe labor trafficking indisputably occurred, if there is no clear evidence of physical force, prosecutors may be reluctant to move forward with charges.[283] They may be concerned about whether they can successfully meet the high burden of proof and convince jurors of the existence of verbal threats or that psychological coercion took place or that the coercion was sufficient to constitute labor trafficking.[284] This is particularly true in cases where there is limited or no corroboration of the coercion, including cases with just one victim.[285] In the absence of other evidence, prosecutors may be leery of time-consuming and complex cases that rest, in large part, on victim testimony.[286] The government must consider, as with a word-versus-word sexual violence case, for example, whether it can carry its high burden without corroboration of victim reports.
Prosecutors, particularly inexperienced ones, may be concerned about inconsistencies in victim statements or victim participation in illegal conduct—for example, entering the United States without authorization or using a false social security number.[287] Anecdotally, it is not uncommon for victims to fail to disclose information, to disclose progressively over time, or to offer statements either in self-preservation or to protect their traffickers, all of which can create conflicting or inconsistent statements.[288] Of course, many of these challenges are expected and reasonable given the complexities of labor trafficking as described above. Further, trauma caused by labor trafficking can impact memory, including victims’ ability to recount their experiences in a linear manner, as well as their trust in others and thus their ability and willingness to share complete and consistent reports of their victimization.[289] Preoccupation with having a “perfect” victim can make it challenging for prosecutors to bring labor trafficking cases.[290]
When labor trafficking is not prioritized by the Department of Justice (DOJ) or by the U.S. attorneys leading each district, it is far less likely to receive necessary resources or attention.[291] Furthermore, to the extent labor trafficking cases are viewed as challenging or risky, overreliance within the DOJ on successful case outcomes as a primary performance measure for attorneys, districts, or divisions may discourage prosecutors from bringing these cases at all.[292]
The DOJ’s most recent strategic plan included no meaningful mention of human trafficking at all.[293] Nothing in the plan, its attendant strategies, or its performance indicators relate directly to labor trafficking.[294]
Within the CRT, human trafficking has actually been identified as a priority.[295] For fiscal years 2016 through 2019, the CRT selected human trafficking as one of a handful of its key enforcement areas.[296] In 2019, the CRT reported it would “continue its highly successful human trafficking program.”[297] The CRT did not specify a particular focus on labor, however, and a reference to sexual assault in its discussion of human trafficking suggests the focus may primarily be on sex trafficking.[298] If the CRT’s leadership is focused on sex trafficking, prosecutors may not as readily invest the time and resources necessary to pursue labor trafficking.[299]
While it is a worthwhile objective and certainly a critical goal of undertaking prosecutions, overreliance on the favorable resolution of cases as a performance metric may make prosecutors more reluctant to bring them.[300] Particularly because, in 2019, for example, labor trafficking cases had lower conviction rates than sex trafficking.[301]
The DOJ seems to rely on case outcome as the primary metric by which to evaluate success.[302] It produces a joint performance report and performance plan annually.[303] In 2018, the sole civil rights performance measure listed was to “favorably resolve” 85% of all civil rights cases.[304] In the 2019 report and plan, the DOJ ceased employing even that baseline goal in civil rights matters, including in human trafficking cases.[305]
A review by the U.S. Commission on Civil Rights raised concerns about the budget challenges faced by the CRT in recent years as well as the impact those challenges may have on its ability to bring cases and establish good precedent.[306] The CRT’s staffing has declined annually since 2016, and it was subject to a department-wide hiring freeze from early 2017 through early 2019.[307] Funding and staffing pressures may inhibit the ability and willingness to bring labor trafficking cases—even after effective trainings or other efforts have been made to increase the number of such cases.[308]
Taken together, case complexity, proof concerns, the desire for a “perfect” victim, institutional disincentives, and insufficient resources hamper prosecutors’ efforts to bring federal labor trafficking cases.
Prosecution is not appropriate in every instance. Involvement of the criminal justice system is certainly not always desirable or helpful.[309] This Part considers arguments against pursuing increased labor trafficking prosecutions and then proposes a nuanced and strategic approach to holding more labor traffickers and those who knowingly benefit from it criminally liable.[310]
Prosecution by no means guarantees—or facilitates—healing for survivors.[311] A study by the Urban Institute considered whether criminal prosecution either best meets human trafficking survivors’ needs or achieves the justice they seek.[312] Surveyed survivors expressed skepticism over whether the criminal justice system could actually achieve justice, including whether it could prevent future trafficking.[313] They identified alternative forms of justice worthy of pursuit, including moving on from trafficking, gaining autonomy, and achieving their personal goals.[314]
Some victims are unable or unwilling to participate in prosecutions.[315] Despite this, prosecutors sometimes use federal material witness warrants to compel survivors to participate. A study of the use of these warrants in human trafficking prosecutions found at least forty-nine instances of victims being detained.[316] Trafficked individuals should not be arrested, detained, or compelled to testify when they cannot or do not want to participate as witnesses.[317] Instead, victims should be offered the support they need and deserve, including access to specialized shelters.[318]
Labor trafficking prosecution cannot replace or distract from other efforts to address the underlying state-created dynamics that allow labor trafficking to thrive.[319] For example, as discussed in Section IV.A.5, the lack of portability of guestworker visas—a federally-created policy—makes temporary foreign workers lawfully working in the United States incredibly vulnerable to exploitation. Threats of termination and deportation by employers frequently form the basis for coercion in labor trafficking schemes.[320] This federally-manufactured vulnerability can and should be resolved by congressional action.[321] Other state conduct also facilitates labor trafficking and should be halted, including collaboration between state and local law enforcement agencies and ICE.[322] This conduct makes undocumented individuals less likely to come forward to seek assistance when their rights are violated and creates prime conditions for coercion.[323] Grave, well-publicized mistreatment of asylum-seekers and others at the hands of government officials also emboldens would-be traffickers and makes migrants more vulnerable.[324] Furthermore, financial insecurity, lack of employment opportunities, and institutionalized bias against certain populations, including LGBTQ youth and undocumented individuals, put individuals at greater risk for exploitation.[325] Prosecution alone cannot address these issues and should not detract from efforts that do.[326]
It is difficult to fathom arguing for increased prosecution of any crime when the U.S. criminal justice system is so deeply afflicted with serious and systemic problems.[327] There is vast scholarship clearly documenting the limitations and harms of the criminal justice system.[328] Nonetheless, there are good reasons to strategically pursue increased prosecution of labor trafficking, particularly prosecution of those who knowingly benefit from it.[329]
Prosecuting labor trafficking is an appropriate role for federal prosecutors.[330] It helps develop precedent and uncovers useful information about how and how often labor trafficking occurs, which in turn equips law enforcement to identify, investigate, and dismantle additional and similar instances of trafficking.[331] Further, prosecutions that result in the payment of court-ordered restitution can support survivors’ goals and long-term stability by providing them with financial resources.[332] Victims may want their traffickers to be prosecuted for a variety of reasons, including to prevent future abuse against others.[333] In some instances and with proper care and support, victims’ participation in prosecuting their traffickers can be a restorative and empowering process.[334]
Failure to prosecute erodes the rule of law—victims may feel that they cannot be protected or that their experiences do not matter,[335] they and the public may lose further faith in the criminal justice system, and those seeking to exploit others may do so without concern for criminal consequences.[336] Minimizing the risk of engaging in a high-reward criminal enterprise increases the likelihood that labor trafficking will thrive.[337]
When labor trafficking is not prosecuted, it further normalizes workplace exploitation. It also reinforces the harmful myth that all human trafficking is sex trafficking. More consistent prosecution of these cases is one way to begin to chip away at workplace exceptionalism and the labor trafficking eclipse, while publicly demonstrating that labor trafficking occurs, that it matters, and that those who criminally exploit workers can and will be held accountable.[338]
Redirecting existing criminal justice resources to labor trafficking is a worthwhile endeavor.[339] Such a shift could help transfer law enforcement efforts away from policing methods that disproportionately target poor communities and communities of color—including minor crimes associated with violating immigration laws, using drugs, or engaging in commercial sex work—and would instead place attention on the serious and exploitative crimes associated with labor trafficking. [340]
Although the underprosecution of labor trafficking can seem endemic to the DOJ and law enforcement agencies, reform is possible.[341] Section VI.A reviews federal agencies’ recent attempts to address the failure to prosecute labor trafficking and recommends evaluation of their impact, while Section VI.B proposes additional reforms. Ideally, these reforms not only would result in more frequent prosecution of labor traffickers but also would decrease prosecution of certain other crimes, facilitate development of law enforcement frameworks to address employment-based crimes, and perhaps modestly improve law enforcement interactions with crime victims from marginalized communities.
Federal efforts have been made to increase the prosecution of labor trafficking—and human trafficking more generally.[342] Since 2007, there has been a unit within the CRT called the Human Trafficking Prosecution Unit (HTPU), which focuses on the prosecution of human trafficking.[343] Prosecutors from within HTPU serve as subject-matter experts, working with Assistant U.S. Attorneys (AUSAs) in federal districts across the country to assist them with investigating and prosecuting human trafficking cases, interpreting and applying the statutes, ensuring victim access to needed resources, coordinating between districts, and building capacity.[344]
Beginning in 2011, the Anti-Trafficking Coordination Team (ACTeam) Initiative sought to improve inter-agency coordination regarding human trafficking.[345] As a collaboration between the Departments of Justice, Homeland Security, and Labor, the effort “focuses on investigating and prosecuting forced labor, international sex trafficking, and sex trafficking of adults by force, fraud, or coercion . . . .”[346]
In 2015, as part of its “Blue Campaign” to raise awareness of human trafficking, the DHS released a series of labor trafficking videos.[347] It has also produced and distributed materials for law enforcement and the public on topics relevant to labor trafficking, including how to identify human trafficking,[348] how to use a victim-centered approach,[349] and how to provide immigration relief for victims.[350]
During 2017, Wage and Hour Division investigators within the Department of Labor (DOL) received training on human trafficking awareness.[351] More recently, the DOJ conducted public outreach to help better identify labor trafficking cases.[352]
The Labor Trafficking Initiative, launched by the FBI in 2017, was specifically intended to increase identification of labor trafficking.[353] The initiative sought to identify geographic regions within which vulnerable individuals may be located; to educate state and local regulators, inspectors, and law enforcement agencies in those areas on how to recognize possible instances of labor trafficking; and to distribute outreach materials.[354]
The DOJ’s National Institute of Justice (NIJ) has funded research to improve understandings of labor trafficking and how to address it.[355] Studies funded by the NIJ include Labor Trafficking in North Carolina: A Statewide Survey Using Multistage Sampling;[356] Understanding the Organization, Operation, and Victimization of Labor Trafficking in the United States;[357] Looking for a Hidden Population: Trafficking of Migrant Laborers in San Diego County;[358] and others. In 2020, the NIJ solicited research aimed at better “understand[ing], prevent[ing], and respond[ing] to trafficking in persons in the United States.”[359] Labor trafficking was one of the four priority areas the NIJ identified.[360]
The DOJ’s Bureau of Justice Assistance (BJA) has offered trainings for law enforcement and prosecutors on labor trafficking, including a multiday workshop in early 2020 on how to identify, investigate, and prosecute labor trafficking using a trauma-centered approach.[361]
The DOJ’s Office for Victims of Crimes (OVC) additionally provides funding and technical assistance.[362] It has produced and made available webinars on topics including “Labor Trafficking: Improving Victim Identification”;[363] “Continuum of Labor Exploitation: Wage Theft, Fraud in Foreign Labor Contracting and Human Trafficking”;[364] and “Labor Trafficking–Research to Practice.”[365] OVC’s “Faces of Human Trafficking” series, which targeted communities, law enforcement, and prosecutors, includes an introductory video on labor trafficking.[366] OVC also provides funding to organizations that identify and serve victims and human trafficking task forces.[367]
It will likely take time to see whether agencies’ most recent efforts positively impact the incidence of identification, investigation, and prosecution of labor trafficking. The effectiveness of each of these programs should be evaluated and either modified or abandoned based on the findings.
Underprosecution of labor trafficking remains a persistent challenge, but additional steps can be taken to address it. These include reallocating resources and shifting incentives; training law enforcement and prosecutors, adapting law enforcement strategies by conducting regional assessments, engaging in strategic partnerships, proactively analyzing data, and applying survivors’ and advocates’ insights; improving victim experiences; and utilizing civil litigation as a source of intelligence and as a complementary enforcement mechanism.
More resources should be committed to labor trafficking on a sustained basis, including resources for dedicated law enforcement units or officers, widespread and effective training programs, prosecutors,[368] and other costs of implementing the recommendations set forth below.[369] In part, resources should be diverted from other law enforcement priorities to achieve this.[370]
Labor trafficking prosecutions may increase if the DOJ and its CRT tether their success to bringing them.[371] U.S. Attorneys also have the authority to set priorities for their districts, and they, too, should prioritize labor trafficking. Setting goals and performance measures associated with labor trafficking cases should incentivize bringing such cases and should not broadly focus solely on case outcomes or even the raw number of cases filed.[372] Alternative metrics could include a variety of measures such as the amount of restitution awarded per victim, for example.[373] Law enforcement agencies should take a similar approach and incentivize labor trafficking identification and investigation.
Additional efforts should be made to train law enforcement officers who may come into contact with labor trafficking, including those who participate in community outreach.[374] While training has been made available in the past, more innovative approaches and widespread participation is needed.[375]
Future efforts should include broad training of local law enforcement officers to understand what labor trafficking entails;[376] how to find it; how to tailor investigative strategies to the particular challenges of labor trafficking; and, where appropriate, how to make referrals to and collaborate with federal law enforcement in supporting criminal prosecutions.[377] Depending on the audience, training should address common myths, the various forms that coercion can take and how to intervene in it, how to distinguish trafficking from other forms of labor exploitation, how to engage with community partners, what kind of evidence should be gathered to support appropriate restitution awards provided for by statute, the importance of helping victims seek stability, and the critical role of immigration relief in that process for foreign nationals.[378] The scenarios provided should be consistent with what officers are most likely to actually encounter.[379] All officers who may come into contact with labor trafficking victims must know how to use skilled and unbiased interpreters, how to work across cultural differences, and how to interview and engage with survivors of trauma; they must also understand other critical topics related to effective investigations.[380] Further, they must understand the importance of Continued Presence and other forms of immigration relief to available foreign national victims and understand their role in securing this relief.
Efforts are being made to develop innovative training tools.[381] In collaboration with Boston University, the Massachusetts Attorney General’s Office rolled out a new web-based application designed to help local law enforcement identify labor trafficking.[382] Recognize & Evaluate Signs to Uncover Labor Trafficking (RESULT) is intended to be an accessible tool that provides simple background information regarding labor trafficking indicators, includes examples of those indicators, and then offers simple questions to ask regarding each indicator.[383] RESULT also gives law enforcement officers tips to prepare them for engaging with trafficked individuals, including very brief primers on how to build trust, understand the impact of immigration status, engage in safety planning, use a qualified interpreter, make appropriate referrals, and learn about trauma.[384] If this tool proves successful, federal agencies might replicate it to assist law enforcement officers in both identifying labor trafficking under the TVPA and effectively engaging with suspected victims to increase their participation in a subsequent investigation and prosecution while also ensuring minimal re-traumatization and harm.[385]
The International Association of Chiefs of Police produced a series of training videos on investigating child sex trafficking that provided examples of common scenarios, including in a school, hotel, traffic stop, and hospital setting, and modeled how to best investigate in each instance.[386] A similar video on how to identify labor trafficking would be an excellent addition to existing training materials and could more thoroughly and concretely model what law enforcement officers on the ground should actually do to identify labor trafficking. The videos could be produced in ten- to fifteen-minute segments that are conducive for showing officers during roll call.[387]
Beyond identifying suspected cases of labor trafficking, law enforcement officials must also understand how to effectively investigate and work up a case.[388] In Colorado, officials and advocates have discussed providing advanced trainings to law enforcement officers that go beyond basic awareness and address topics, such as investigation of suspected labor trafficking.[389] Training on how to conduct regional assessments, engage in strategic partnerships, proactively analyze data, and identify and investigate with other advanced techniques should be provided.[390] Technical assistance should be available to instruct law enforcement officers how to handle a potential case once identified.[391]
Prosecutors should receive ongoing training associated with labor trafficking crimes as well as more advanced training on topics including immigration relief available to trafficked individuals, and strategies to address commonly anticipated hurdles, including proof concerns regarding coercion, and the desire for the “perfect” victim.
Additionally, better educating the public could assist them in identifying labor trafficking cases and encouraging the reallocation of law enforcement resources.[392] Political pressure particularly matters on a local level and could result in more focused attention on policing labor trafficking.[393] When members of the public understand the harms of labor trafficking, they can better identify related crimes, apply pressure to local officials to prosecute them, and serve as more knowledgeable jurors during their adjudication.[394]
Strategies are available to law enforcement agencies to increase their capacity to identify and investigate labor trafficking. These constructive adaptations include conducting regional assessments, engaging in strategic partnerships, proactively analyzing data, and applying survivors’ and advocates’ insights. To be successful, each strategy relies on dedicating units or teams to labor trafficking within prosecutors’ offices or law enforcement agencies.[395]
Law enforcement, perhaps using the task force model, should begin by assessing the people, places, and industries in their region most likely to be connected to labor trafficking.[396] Longtime federal prosecutors Nirav Desai and Sean Tepfer proposed a series of questions to hone in on potential labor trafficking:
What industries in our area of responsibility, or district have the most labor-intensive, unsafe, and unstable jobs? Which locations have a history of labor, immigration, or safety violations? What are the most insular, isolated, impoverished, and transient local communities in our area, and are they generally associated with certain types of work or locations? Are groups of vulnerable individuals concentrated in specific jobs, industries, or work sites?[397]
Law enforcement can even target “hot spot” job sites where known labor or other violations have occurred.[398]
Among populations with heightened vulnerability are undocumented individuals, workers present in the United States on temporary work visas,[399] domestic workers employed by foreign government officials and diplomats, unhoused individuals, and workers living with disabilities.[400] Understanding which populations are most vulnerable to labor trafficking is essential.[401]
To uncover information related to the questions Desai and Tepfer posed—and to identify possible instances of labor trafficking—law enforcement should engage in partnerships with other federal agencies,[402] with state and local agencies,[403] as well as with advocacy groups and other organizations that work on the ground and are likely to encounter trafficked individuals and those at greatest risk of experiencing labor trafficking.[404] These groups might include both formal and informal workers’ and immigrants’ rights organizations along with other advocacy organizations, lawyers, and direct service providers.[405] Partnerships offer the opportunity to train those likely to come into contact with labor trafficking, to offer appropriate services for trafficked individuals, and may even yield referrals to law enforcement.[406] Partners, including housing or labor inspectors and migrant health services staff members, also likely have more access to isolated workers than law enforcement does.[407] Where possible, providing appropriate updates to referring individuals may increase the likelihood of future referrals.[408]
In addition to conducting regional assessments and engaging in strategic partnerships, Desai and Tepfer recommend analyzing existing data to conduct labor trafficking “threat assessments.”[409] Sources already available to law enforcement include information regarding issued visas; investigations regarding visa abuses; investigations of health and safety, wage, discrimination, and other violations; records of private actions against employers and labor contractors; licensing information; and financial records and reporting.[410] Officials can also consult data about past prosecutions and the characteristics of the victims and traffickers involved.[411] Officials skilled in intelligence in areas including organized crime, drug trafficking, and national security should be trained to assist with these efforts.[412] The use of data and analysis, along with regional assessment and strategic outreach, can be used as a starting place for proactive investigations into labor trafficking.[413]
Law enforcement officers and prosecutors should incorporate the insights of labor trafficking survivors and their advocates. In addition to direct communications with survivors and advocates, officers and prosecutors can use resources produced by organizations like the Coalition to Abolish Slavery and Trafficking (CAST), Polaris, the Urban Institute,[414] and the Human Trafficking Legal Center[415] to better identify, investigate, and respond to labor trafficking. Nearly all of these organizations work directly with trafficked individuals and have collected and analyzed useful data.
Los Angeles-based CAST analyzed a decade of data on labor trafficking experienced by approximately 550 of its clients to identify “actionable patterns” that might prove useful to identification and prevention efforts.[416] Among its many findings were that clients experienced labor trafficking primarily in domestic work, hotels and hospitality, and agriculture.[417] CAST clients were most commonly recruited into labor trafficking by employment agencies, friends or acquaintances, partners or family members, business owners, smugglers, and heads of households.[418] Meaningful patterns emerged from their clients’ experiences, including that those working in hospitality were largely recruited from the Philippines via employment agencies, were in the United States on temporary work visas, and were trafficked by owners or managers of hotels or related businesses.[419] In contrast, clients who worked as domestic workers were from a wide variety of countries; were recruited by known individuals, largely family or friends; and were trafficked by members of the household where they worked.[420] By listening to the experiences and insights of survivors, law enforcement can use the patterns identified to proactively investigate certain categories of businesses.[421]
Polaris produced a typology of human trafficking based on its analysis of approximately 32,000 cases reported to the National Human Trafficking Hotline over nearly a decade.[422] For the twenty-five types of human trafficking identified,[423] Polaris’s report offers the business model, trafficker and victim profiles, recruitment strategies, and methods of control most likely to be associated with each type.[424] This industry-specific information can help law enforcement craft strategies targeting specific types of labor trafficking.[425]
Victims of labor trafficking are more likely to participate in investigations when they have positive experiences with law enforcement.[426] One study found that law enforcement methods for building trust include providing a consistent point of contact; listening to the survivor’s story; being honest, fair, and transparent; and relating to the survivor.[427] Relatability might involve wearing civilian clothing or taking into account survivors’ gender, ethnicity, and race when selecting an officer to interact with them.[428] Other strategies to build trust include using the survivor’s preferred terminology, focusing on their needs and helping them meet these needs,[429] assuring them they will not be criminalized or deported as a result of the trafficking, and offering them options and decision-making power.[430] Among other things, survivors who participated in a survey recommended using a compassionate, trauma-informed approach that focuses on them as individuals instead of on the crimes; providing interpreters; speaking in softer and friendlier tones; and having an advocate or caseworker present during each interaction with law enforcement.[431]
All actors in the criminal justice system should use a victim-centered and trauma-informed approach when engaging with victims.[432] To pursue justice of any kind, it is critical that victims’ needs are met.[433] When trafficked individuals have stability, including stable housing, income, and immigration status, it enhances their ability to serve as witnesses in the prosecution of their traffickers.[434]
Continued Presence should be more consistently and readily available to labor trafficking victims.[435] Training may help to achieve this goal. Additionally, expanding the range of those who have authority to seek Continued Presence to include federal victim assistance specialists may prove useful.[436] Federal agencies should also create incentives or develop policies that encourage or even mandate federal, state, and local law enforcement officers to pursue Continued Presence when appropriate and to promptly certify victims of severe forms of trafficking in persons in support of their T visa applications.
When law enforcement and prosecutors improve victim experiences, it will not only help the victim and prosecution but will also facilitate the development of more trusting relationships with service providers, advocates, and organizations on the ground.[437] Those relationships, in turn, are likely to result in more referrals of labor trafficking cases.[438]
Civil litigation can be used as a source of intelligence and as a complementary enforcement mechanism. Law enforcement agencies and prosecutors can systematically monitor state and federal civil lawsuits that allege labor trafficking in order to identify traffickers for investigation.[439]
Federal agencies that lack the authority to criminally enforce the TVPRA can still pursue traffickers and help eradicate “de facto safe harbor[s.]”[440] In addition to cases brought by labor trafficking survivors, the U.S. Equal Employment Opportunity Commission (EEOC) has experimented with bringing suits against traffickers using the anti-discrimination laws that it has the authority to enforce.[441]
The EEOC, sometimes in collaboration with private counsel, has successfully brought suit in at least three labor trafficking cases.[442] These cases, brought on behalf of 132 survivors, resulted in judgments totaling roughly $250 million as well as a $1 million settlement and consent decree that required a defendant to provide future work, housing, college tuition, and sponsorships to support the victims’ continued work in the United States.[443]
While civil litigation does not replace the need for criminal prosecutions, it can serve as a means to, at least partially, financially compensate survivors, to hold perpetrators accountable; to bring to light occurrences of labor trafficking; to offer a venue for trafficked individuals to share experiences; and perhaps to deter at least some future instances of labor trafficking.[444] The lower burden of proof in civil cases—a preponderance of the evidence rather than beyond a reasonable doubt—makes it easier to bring and prevail in a civil suit.[445] It may also be a preferable option for some victims, including those who do not want to engage with law enforcement or those who want more control over the legal process.[446]
Law enforcement can also use the private right of action as a means to encourage traffickers to at least partially compensate their victims.[447] Finally, the prospect of a criminal action could operate as leverage to encourage the trafficker to pay legally mandated unpaid wages that the victim could seek in a civil suit.[448]
Beyond the recommendations discussed, there are additional strategies that should be evaluated as possible means to address the underprosecution of labor trafficking. These include amending and simplifying the federal labor trafficking crimes, expanding the capacity and authority of labor agencies, educating the public, and encouraging state and local prosecutions.
Simplifying the language of labor trafficking crimes may be helpful. For example, the language of one of the core labor trafficking crimes (18 U.S.C. § 1590) is unnecessarily confusing. It fails to provide law enforcement with clear guidance about what specific conduct is unlawful, and it requires a thorough understanding of Chapter 77 of the U.S. Criminal Code. Clarifying what conduct is prohibited would make it easier for law enforcement—and juries—to understand and apply the law.
Expanding the authority and capacity of labor enforcement agencies to investigate labor trafficking could prove useful.[449] While these agencies lack sufficient resources to carry out their existing enforcement obligations, agencies that enforce labor and employment laws already have experience engaging with workers, more ready access to workplaces, and a superior understanding of workplace dynamics and investigations.[450] Providing these agencies with additional resources and the authority to investigate labor trafficking could assist in identifying more instances of labor trafficking and have the secondary benefit of increasing oversight of employer compliance more generally.
Federal prosecutors cannot realistically be expected to prosecute all instances of labor trafficking.[451] Each state has now passed human trafficking legislation.[452] In some cases, state statutes improve on the federal labor trafficking crimes and make prosecution easier.[453] Some states are already periodically prosecuting labor trafficking.[454] Encouraging others to do so—provided they can do it well—may also prove fruitful.[455]
Finally, much is lost when experienced law enforcement officers and prosecutors leave their positions after gaining valuable training and experience, developing relevant skills, and building trusted relationships in the community. Attention should be paid to retention of such actors so that agencies are better equipped to address labor trafficking.[456]
Labor trafficking is prosecuted only rarely and far less frequently than it occurs. The most likely causes of this failure to prosecute arise from agency policies and practices, widespread misunderstandings about human trafficking, the underlying dynamics of labor trafficking, and workplace exceptionalism.
Systemic change that fundamentally alters the vulnerability of populations to exploitation and eradicates the extreme power imbalances between employers and their employees would dramatically reduce the incidence of labor trafficking and the need for its prosecution at all. While such sweeping long-term change is pursued, the concrete reforms identified in this Article can and should be evaluated and implemented to more effectively identify, investigate, and prosecute labor trafficking.
* Associate Professor of Law, University of Arkansas School of Law. I am very grateful to my research assistants Chad Pollack and Jonathan Arrington as well as law librarians Steven Probst and Cathy Chick. I appreciate the insights and generous feedback of Erin Albright, Elliott Daniels, Susan French, Terri Gerstein, Frank Griffin, Stacie Jonas, Jennifer Lee, Jill Lens, Gonzalo Martínez de Vedia, Patricia Medige, Ricky Nolen, Kenechukwu Okocha, Aparna Polavarapu, Emily Tulli, Jordan Woods, and Beth Zilberman. I gratefully acknowledge the clients who I had the honor of representing and who shared their experiences of labor trafficking with me. Finally, thank you to Sandy and Rick Smith for providing childcare during the COVID-19 pandemic so I that could make time to write. ↑
. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified as amended at 18 U.S.C. §§ 1589–1592) (describing the purpose of the Act as combating human trafficking); see 18 U.S.C. §§ 1581–1588 (criminalizing a number of activities related to the slave trade, including enticing another person into slavery, possessing slaves aboard a vessel, serving voluntarily as a member of the crew on a vessel that is transporting slaves, and transporting slaves away from the United States to another place). Slavery was already prohibited prior to 2000, of course. U.S. Const. amend XIII. ↑
. Alyssa Currier & Kyleigh Feehs, Hum. Trafficking Inst., 2018 Federal Human Trafficking Report, at i (2019), https://www.traffickingmatters.com/wpcontent/up
loads/2019/04/2018-Federal-Human-Trafficking-Report-Low-Res.pdf [https://perma.cc/8VZ
X-3XRW]. ↑
. Id. ↑
. See Cynthia Shephard Torg, Human Trafficking Enforcement in the United States, 14 Tul. J. Int’l & Compar. L. 503, 503–04 (2006) (“Prosecution, combined with the imposition of significant penalties, not only provides protection by eliminating the perpetrator’s immediate ability to exploit the victim, but also serves to deter future criminal acts. Without aggressive enforcement efforts by the United States and its global partners, the contemporary slave trade will continue to flourish and devastate the lives of untold numbers of victims.”). ↑
. Cf. id. ↑
. Cf. id. ↑
. Complaint at 1–7, Magnifico v. Villanueva, 783 F. Supp. 2d 1217 (S.D. Fla. 2011) (No. 9:10-cv-80771); Magnifico, 783 F. Supp. 2d at 1221 n.4 (revealing that the thirteen original plaintiffs added five more in their second amended complaint). ↑
. Since 2003, this federal law has provided a private right of action to victims of the federal human trafficking crimes enumerated in 18 U.S.C. §§ 1589–1591. See Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, § 4(a)(4)(A), 117 Stat. 2878. The law was amended in 2008 to extend the private right of action to victims of any Chapter 77 crime. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. Pub. L. No. 110-457, 122 Stat. 5044. ↑
. Plaintiffs’ Second Amended Complaint at 23, Magnifico, 783 F. Supp. 2d 1217 (No. 9:10-cv-80771). ↑
. Id. at 33–34, 41. ↑
. Magnifico v. Villanueva, No. 10–CV–80771, 2012 WL 5395026, at *1–2 (S.D. Fla. Nov. 2, 2012). ↑
. United States v. Villanueva, 17-CR-592 (E.D.N.Y. Feb. 7, 2020) (order of court accepting guilty plea). ↑
. E.g., Elizabeth Long et al., Rsch.-to-Pol’y Collaboration, Preventing Human Trafficking: Using Data-Driven, Community-Based Strategies (2018), https://www.communitypsychology.com/wp-content/uploads/2018/09/Human-Trafficking-Pre
vention-Brief-FINAL.pdf [https://perma.cc/R4ZD-QCZU]; Freedom Network USA, Human Trafficking and H-2 Temporary Workers 4 (2018), https://freedomnetworkusa.org/app/u
ploads/2018/05/Temporary-Workers-H2-May2018.pdf [https://perma.cc/J33U-8RPQ]; Brittany Anthony et al., Polaris, On-Ramps, Intersections, and Exit Routes: A Roadmap for Systems and Industries to Prevent and Disrupt Human Trafficking 4 (2018), https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-In
dustries-to-Prevent-and-Disrupt-Human-Trafficking.pdf [https://perma.cc/Q4PF-RG53]. ↑
. See Memorandum on Steps to Combat Violence Against Women and Trafficking in Women and Girls, 1 Pub. Papers 358–60 (Mar. 11, 1998); U.S. Dep’t of State, Trafficking in Persons Report 13, 15 (2003), https://2009-2017.state.gov/documents/organization/21555.
pdf [https://perma.cc/X9W4-TP3P]. In 2009, Secretary of State Hillary Rodham Clinton announced an expansion of the model to include a fourth prong: partnership. Off. to Monitor & Combat Trafficking in Persons, U.S. Dep’t of State, The 3Ps: Prevention, Protection, Prosecution (2011), https://2009-2017.state.gov/documents/organization/1673
34.pdf [https://perma.cc/6BYN-EZ8C] (allowing partnership to “serve[] as a pathway to achieve progress on the 3Ps in the effort against modern slavery”). ↑
. For example, Centro de los Derechos del Migrante (CDM) conducts workshops in Mexico for migrant workers prior to their departures to the United States and provides information about the law and migrant workers’ workplace rights. Worker Education and Leadership Development, Centro de los Derechos del Migrante, Inc., https://cdmigrante.org/worker-education-and-leadership-development/ [https://perma.cc/F6W
W-EB7D]. CDM also operates Contratados.org, a publicly available online review system that allows migrant workers to review their labor contractors and employers. ¿Sobre Quien Quieres Escribir una Reseña? [Who Do You Want to Write a Review About?], Contratados, https://contratados.org/es/add-review [https://perma.cc/J3FY-YWDD]. Among other things, online reviews include information about whether workers were threatened; were physically, verbally, or sexually assaulted; had their documents retained; or were kept somewhere against their will. Id. ↑
. Much has been generally written about the impact of criminalizing certain conduct, the usefulness of prosecuting crimes, and the profound harms caused by the criminal justice system. E.g., Eisha Jain, Capitalizing on Criminal Justice, 67 Duke L.J. 1381, 1383–87 (2018). In the context of human trafficking specifically, some have questioned the utility of prosecution as a primary means of addressing trafficking. E.g., Abigail Swenstein & Kate Mogulescu, Resisting the Carceral: The Need to Align Anti-Trafficking Efforts with Movements for Criminal Justice Reform, Anti-Trafficking Rev., May 2016, at 118, 118 (“By prioritising prosecution above all else, this approach distances itself from contemporary efforts to build inclusive racial, economic and gender justice movements centered around broader criminal justice reform.”). Swenstein and Mogulescu’s article raises critical points, including that a hyperfocus on prosecution can distract from addressing the significant “systemic failures” trafficked individuals regularly experience and for which the state is primarily responsible; does little to ensure the particular prosecutions pursued are sustainable or effective; can conflict with victims’ own preferences; risks criminalizing those only tangentially related to the trafficking—or who themselves were victimized; and can impede criminal justice reform efforts. See id. at 118–122. While written from the perspective of authors who represent individuals engaged in commercial sex and who have experienced sex trafficking, the critique substantially applies to the context of labor trafficking. See id. at 121 (discussing how these issues “serve[] to worsen conditions in certain communities, creating a fertile ground for exploitation and abuse in various labour sectors, including commercial sex”). However, unlike commercial sex, most aspects of other forms of labor are underregulated and lack state oversight. See discussion infra Section IV.A.1. As described in more detail in Section IV.A.1, throughout the United States, workplace protections remain weak and underenforced. ↑
. U.S. Const. amend XIII, § 1. See Janie Chuang, Exploitation Creep and the Unmaking of Human Trafficking Law, 108 Am. J. Int’l L. 609, 609–12 (2014), for a thorough analysis of the historical and legal distinctions between, and subsequent merging of, slavery, involuntary servitude, and human trafficking. ↑
. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified as amended at 18 U.S.C. §§ 1589–1592). Significantly, the law firmly established that psychological coercion is equal to physical violence and restraint as a means of controlling victims. The crimes that predated the TVPRA were 18 U.S.C. § 1581 (addressing peonage and obstructing enforcement); 18 U.S.C. § 1582 (addressing vessels for slave trade); 18 U.S.C. § 1583 (addressing enticement into slavery); 18 U.S.C. § 1584 (addressing sale into involuntary servitude); 18 U.S.C. § 1585 (addressing seizure, detention, transportation, or sale of slaves); 18 U.S.C. § 1586 (addressing service on vessels in slave trade); 18 U.S.C. § 1587 (addressing possession of slaves aboard vessel); 18 U.S.C. § 1588 (addressing transportation of slaves from United States); and 18 U.S.C. § 2421 (criminalizing knowingly transporting a person with intent that the individual engage in commercial sex or other sexual activity for which a crime could be charged). ↑
. 18 U.S.C. § 1591 (criminalizing the sex trafficking by force, fraud, or coercion, of children). See Janie A. Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. Pa. L. Rev. 1655, 1660–64 (2010), for a history of the development of modern anti-trafficking laws and policies and the interplay between sex and labor trafficking. ↑
. A severe form of trafficking in persons is defined in 22 U.S.C. § 7102(11). This provision incorporates both “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age” and “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.” 22 U.S.C. § 7102(11). This definition is used somewhat synonymously with “human trafficking” and is a basis for seeking immigration relief in the form of a T visa. But see Jeremy S. Norwood, Labor Exploitation of Migrant Farmworkers: Risks for Human Trafficking, 6 J. Hum. Trafficking 209, 211 (2020) (suggesting the distinction between sex and labor trafficking is a false dichotomy as all commercial sex is a form of labor). Norwood’s article focuses on forms of labor trafficking that do not primarily include sex. Id. at 210. Some exploitation includes both sex and labor trafficking including, for example, some abuses that take place in the illicit massage industry. Polaris, Human Trafficking in Illicit Massage Businesses 10 (2018), https://polarisproject.org/w
p-content/uploads/2019/09/Human-Trafficking-in-Illicit-Massage-Businesses.pdf [https://perm
a.cc/B5BA-TJAN]. ↑
. In Arkansas, for example:
[A] person commits the offense of trafficking of persons if he or she knowingly: (1) Recruits, harbors, transports, obtains, entices, solicits, isolates, provides, or maintains a person knowing that the person will be subjected to involuntary servitude; (2) Benefits financially or benefits by receiving anything of value from participation in a venture under subdivision (a)(1) of this section; (3) Subjects a person to involuntary servitude; (4) Recruits, entices, solicits, isolates, harbors, transports, provides, maintains, or obtains a minor for commercial sexual activity; or (5) Sells or offers to sell travel services that he or she knows includes an activity prohibited under subdivisions (a)(1)-(4) of this section.
Ark. Code Ann. § 5-18-103(a)(1)–(5) (West, Westlaw through 2020 1st Extraordinary Sess. and the 2020 Fiscal Sess. of the 92d Ark. Gen. Assemb.). Involuntary servitude is defined to include both commercial sex and other forms of labor. Id. § 5-18-102(5); see also Polaris, A Look Back: Building a Human Trafficking Legal Framework 4 (2014), https://polarisproject.org/wp-content/uploads/2019/09/2014-Look-Back.pdf [https://perma.cc/E
T9V-RR4C] (reviewing Polaris’s ratings of state anti-trafficking laws from 2011 to 2014); State & Territory Profiles: Efforts to Combat Human Trafficking, U.S. Dep’t of Health & Hum. Servs. (Jan. 10, 2018), https://www.acf.hhs.gov/otip/resource/profiles [https://perma.cc/ULM7
-UL3A] (providing profiles summarizing each state’s legislative and other efforts to address trafficking). ↑
. See infra notes 23–41 and accompanying text. ↑
. Press Release, U.S. Dep’t of Just., Leader of Human Trafficking Organization Sentenced to Over 15 Years for Exploiting Guatemalan Migrants at Ohio Egg Farms (June 27, 2016), https://www.justice.gov/opa/pr/leader-human-trafficking-organization-sentenced-over-15-years-exploiting-guatemalan-migrants [https://perma.cc/68HG-5KPK]. ↑
. Id. ↑
. Id. ↑
. Press Release, U.S. Dep’t of Just., South Carolina Man Sentenced to 10 Years in Prison for Forcing Man with Intellectual Disability to Work at Restaurant (Nov. 6, 2019), https://www.justice.gov/opa/pr/south-carolina-man-sentenced-10-years-prison-forcing-man-int
ellectual-disability-work [https://perma.cc/7FA3-GXV2]. ↑
. Id. ↑
. Id. ↑
. Id. ↑
. Id. ↑
. Press Release, U.S. Dep’t of Just., Florida Couple Sentenced in Forced Labor Conspiracy to Exploit Filipino Guest Workers (Dec. 10, 2010), https://www.justice.gov/opa/pr/florida-couple-sentenced-forced-labor-conspiracy-exploit-filip
ino-guest-workers [https://perma.cc/93K7-A5AC]. ↑
. Id. ↑
. Press Release, U.S. Dep’t of Just., Couple Convicted of Forcing Young, West African Girl to Labor in Their Southlake, Texas, Home for 16 Years (Jan. 11, 2019), https://www.justice.gov/opa/pr/couple-convicted-forcing-young-west-african-girl-labor-their-s
outhlake-texas-home-16-years [https://perma.cc/47MY-BEYG]. ↑
. Id. ↑
. Id. ↑
. Id. ↑
. Press Release, U.S. Dep’t of Just., Indian Nationals Sentenced for Roles in Alien Harboring Scheme Involving Labor Exploitation at Nebraska Motel (Mar. 20, 2018), https://www.justice.gov/opa/pr/indian-nationals-sentenced-roles-alien-harboring-scheme-invol
ving-labor-exploitation-nebraska [https://perma.cc/GM56-Q8UV]. ↑
. Id. ↑
. Id. ↑
. Id. ↑
. Id. ↑
. See Amy Farrell et al., Nat’l Inst. Just., Capturing Human Trafficking Victimization Through Crime Reporting 4 (2019) (explaining that estimates commonly rely on non-systematic and incomplete data and have “numerous operational, definitional and methodological limitations”); cf. Valerie R. Anderson et al., Estimating the Prevalence of Human Trafficking in Ohio: Executive Summary Report 8–9 (2019) [hereinafter Anderson, Executive Summary Report] (offering several recommendations for improving prevalence-related research); Valerie R. Anderson et al., Estimating the Prevalence of Human Trafficking in Ohio, 2014–2016, 109 Am. J. Pub. Health, 1396, 1396 (2019) [hereinafter Anderson, Human Trafficking in Ohio]. ↑
. Farrell et al., supra note 42, at 2 (noting that law enforcement records captured in the range of 2.5% to 6% of the total estimated trafficked individuals in two of the study sites). ↑
. Id. at 1 (reporting that, in some instances, identification of labor trafficking victims was “non-existent for both law enforcement and service providers”); see Dominique Roe-Sepowitz et al., Off. of Sex Trafficking Intervention Rsch., Ariz. State Univ., A Four-Year Analysis of Labor Trafficking Cases in the United States, at ii (2018), https://socialwork.asu.edu/sites/default/files/stir/v9_national_labor_trafficking_study.pdf [http
s://perma.cc/AX88-QJK3] (“Due to the covert nature of labor trafficking activities, creating reliable statistics on prevalence, frequency, geography, and particulars of labor trafficking have been difficult to develop.”); Sheldon X. Zhang, Ctr. Soc. Advoc., Looking for a Hidden Population: Trafficking of Migrant Laborers in San Diego County 4–5 (2012), https://www.ncjrs.gov/pdffiles1/nij/grants/240223.pdf [https://perma.cc/LXB3-MAGK] (discussing definitional problems and other challenges of empirical efforts to discern labor trafficking). Furthermore, labor trafficking can occur across all industries, potentially making it harder to police. ↑
. See infra Section IV.A.3, for a discussion of the labor trafficking eclipse phenomenon. See also Farrell et al., supra note 42, at 2 (reviewing the existing estimates of victims of human trafficking in the United States and recommending how to improve research and measurement of human trafficking); The Prevalence of Labor Trafficking in the United States, Nat’l Inst. Just. (Feb. 26, 2013), https://nij.ojp.gov/topics/articles/prevalence-labor-trafficking-united-states [https://perma.cc/FD5R-SG7U] (“In an NIJ-funded bibliography of research literature on human trafficking, researchers found that the majority of articles addressed sex trafficking. Indeed, out of 39 articles, only four dealt with trafficking for labor exploitation or domestic servitude.”). ↑
. See, e.g., Zhang, supra note 44, at 15 (estimating that over 30% of Spanish-speaking migrant workers in San Diego County are victims of labor trafficking). ↑
. Nat’l Hum. Trafficking Hotline, https://humantraffickinghotline.org [https://perma.cc/HPF9-UTP3]. The hotline is operated continuously 365 days per year and offers telephonic assistance in roughly 200 languages. National Hotline Overview, Nat’l Hum. Trafficking Hotline, https://humantraffickinghotline.org/national-hotline-overview [https://
perma.cc/HCF6-V23J]. According to its website, the hotline “provide[s] assistance to victims in crisis through safety planning, emotional support and/or immediate connections to emergency services through our network of trained service provider and law enforcement partners.” When You Reach Us, Nat’l Hum. Trafficking Hotline, https://humantraffickinghotline.org/about-us/when-your-reach-us [https://perma.cc/EP6W-DAD3]. ↑
. National Hotline Overview, supra note 47. ↑
. The hotline captures information based solely on calls received; it relies on the public, law enforcement, and trafficked individuals to identify the trafficking and then to both know about and actually use the hotline to accurately report all relevant information. Hotline Statistics, Nat’l Hum. Trafficking Hotline, https://humantraffickinghotline.org/states [https://perma.cc/6EFC-L6EF]. Polaris itself has asserted it believes labor trafficking is “chronically underreported.” Polaris, The Typology of Modern Slavery: Defining Sex and Labor Trafficking in the United States 8 (2017), https://polarisproject.org/wp-content/uploads/2019/09/Polaris-Typology-of-Modern-Slavery-1.pdf [https://perma.cc/MQZ4-ZD4E]. ↑
. Polaris, 2018 Statistics from the National Human Trafficking Hotline (2019), https://polarisproject.org/wp-content/uploads/2019/09/Polaris_National_Hotline_2018
_Statistics_Fact_Sheet.pdf [https://perma.cc/7XMA-M786]. ↑
. See id. ↑
. Hotline Statistics, supra note 49. Note that a single case may include multiple victims. ↑
. Zhang, supra note 44. ↑
. Id. at 17. ↑
. Id. Even if this is an overestimate and only a fraction of such abuses exist, it nonetheless suggests that many cases of labor trafficking are not prosecuted. ↑
. Alexandra F. Levy, Hum. Trafficking Legal Ctr., Federal Human Trafficking Civil Litigation: 15 Years of the Private Right of Action 6 (Martina E. Vandenberg & Andrew B. Cherry eds., 2018), https://www.htlegalcenter.org/wp-content/uploads/Federal-Human-Trafficking-Civil-Litigation-1.pdf [https://perma.cc/EU5K-K
ZVG] (reviewing cases filed between October 2003, when the private right of action became available, and October 2018). ↑
. Id. at 13. ↑
. Id. at 15. ↑
. See, e.g., Anderson et al., Executive Summary Report, supra note 42, at 1 (noting that many human trafficking victims are not reached by social or legal services). There are a variety of reasons why someone who experienced labor trafficking might elect not to bring a civil suit even if such an option is available, including judgement-proof defendants, the impacts of trauma, and a desire to put the experience behind them. See Jennifer S. Nam, Note, The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims, 107 Colum. L. Rev. 1655, 1678 (2007). ↑
. See Human Trafficking, 2018 Crime in the United States, FBI: UCR, https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/additional-data-collections/hu
man-trafficking/table-1.xls [https://perma.cc/E2LA-QYRP]; see Human Trafficking, 2017 Crime in the United States, FBI: UCR, https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2018/additional-data-collections/human-trafficking/table-1.xls [https://perma.cc/CG4B-4Q
WT]. ↑
. See supra note 60 and accompanying text. By contrast, 994 offenses of sex trafficking were reported in 2017 and 1,242 in 2018. See supra note 60 and accompanying text. ↑
. Roe-Sepowitz et al., supra note 44, at ii. ↑
. Id. at 5. The authors acknowledge this limitation:
There are important limitations of this study to consider including that it includes only labor trafficking arrests in the U.S. that were reported online, either through the media or through information releases. Other cases could have been filed against labor traffickers using different crime types (kidnapping, assault, theft, human smuggling) which would not have been detected by this study’s methodology.
Id. at vi. ↑
. See Form I-914, Application for T Nonimmigrant Status by Fiscal Year, Quarter, and Case Status, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/sites/default/files/US
CIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I914t_visastatistics_fy2020_qtr1.pdf [https://perma.cc/J5Y5-VWVA]. T visa eligibility requires, among other things, that a foreign national is or was “a victim of a severe form of human trafficking.” Victims of Human Trafficking: T Nonimmigrant Status, U.S. Citizenship and Immigr. Servs., https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-human-trafficking-t-nonimmigrant-status [https://perma.cc/VQD8-24AS]. ↑
. See Form I-914, Application for T Nonimmigrant Status by Fiscal Year, Quarter, and Case Status, supra note 64. ↑
. See id. ↑
. Among other limitations, these numbers only capture those foreign national victims who believed they met all eligibility required for the visa and were able to file applications. See id. Furthermore, some individuals who experience human trafficking may nonetheless be ineligible for a T visa if, for example, they are no longer present in the United States as a result of the trafficking. Victims of Human Trafficking: T Nonimmigrant Status, supra note 64. Victims of human trafficking may also be eligible to apply for U visas in addition to or instead of T visas, and some do. Victims of Criminal Activity: U Nonimmigrant Status, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity-u-nonimmigrant-status [https://perma.cc/8G84-UDB9]. As trafficking and involuntary servitude are just two of twenty-nine qualifying crimes making victims eligible for a U visa, id., statistics regarding U visas would be unhelpful when estimating the incidence of human trafficking. ↑
. See Colleen Owens et al., Urb. Inst., Understanding the Organization, Operation, and Victimization Process of Labor Trafficking in the United States 202 (2014), https://www.urban.org/research/publication/understanding-organization-operation-and-victimization-process-labor-trafficking-united-states [https://perma.cc/5TGZ-7QPL] (finding that “the mental and physical impact of labor trafficking on survivors was severe”). ↑
. U.S. Dep’t of Health & Hum. Servs., Labor Trafficking Fact Sheet (2012), https://www.acf.hhs.gov/sites/default/files/orr/fact_sheet_labor_trafficking_english.pdf [https:
//perma.cc/UMJ5-39FL]. ↑
. Lagasan v. Al-Ghasel, 92 F. Supp. 3d 445, 458 (E.D. Va. 2015). ↑
. Belvis v. Colamussi, No. CV 16-544, 2018 WL 3151698, at *7 (E.D.N.Y. Feb. 20, 2018). ↑
. Alabado v. French Concepts, Inc., No. CV 15-2830, 2016 WL 5929247, at *5 (C.D. Cal. May 2, 2016). ↑
. Ross v. Jenkins, 325 F. Supp. 3d 1141, 1174 (D. Kan. 2018). ↑
. Carazani v. Zegarra, 972 F. Supp. 2d 1, 24 (D.D.C. 2013). ↑
. Lipenga v. Kambalame, 219 F. Supp. 3d 517, 531 (D. Md. 2016). ↑
. Belvis, 2018 WL 3151698, at *7. ↑
. Rana v. Islam, 210 F. Supp. 3d 508, 516 (S.D.N.Y. 2016). ↑
. See id. ↑
. Id. ↑
. Carazani v. Zegarra, 972 F. Supp. 2d 1, 25 (D.D.C. 2013). ↑
. See, e.g., Rana, 210 F. Supp. 3d at 516. ↑
. Id. (internal quotation marks omitted). ↑
. Id. (detailing that although the harms of labor trafficking demonstrate its seriousness, they should not be interpreted to mean that trafficked individuals are homogenous, weak, or doomed; many survivors have shown resilience, strength, and healing, even when they faced ongoing challenges after the trafficking ended). ↑
. See Owens et al., supra note 68, at 104; Lagasan v. Al-Ghasel, 92 F. Supp. 3d 445, 453 (E.D. Va. 2015) (noting that traffickers prohibited the plaintiff from obtaining necessary medical services); Lipenga v. Kambalame, 219 F. Supp. 3d 517, 532 (D. Md. 2016) (noting that traffickers refused to let the victim seek appropriate medical treatment and effectively allowed the victim’s HIV and tuberculosis to go untreated for the entire duration of employment). ↑
. See Owens et al., supra note 68, at vii; see, e.g., Rana, 210 F. Supp. 3d at 516 (noting that the trafficker physically assaulted the victim and knocked the victim unconscious). ↑
. See Cathy Zimmerman & Marc B. Schenker, Human Trafficking for Forced Labour and Occupational Health, 71 Occupational & Env’t Med. 807, 808 (2014). ↑
. See Little Hoover Comm’n, Human Trafficking: Coordinating a California Response 8 (2020), https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/250/Report
250.pdf [https://perma.cc/45GE-KYYD]. ↑
. See id. at 9; Owens et al., supra note 68, at 105 (reporting two of the trafficked individuals interviewed had come into contact with labor inspectors); see also Number and Rate of Fatal Work Injuries, by Industry Sector, U.S. Bureau of Lab. Stat., https://www.bls.gov/charts/census-of-fatal-occupational-injuries/number-and-rate-of-fatal-wor k-injuries-by-industry.htm [https://perma.cc/GDK4-T37G] (noting the high number of fatal work injuries in construction and manufacturing); U.S. Dep’t of Lab., 2018 Survey of Occupational Injuries & Illnesses (2019), https://www.bls.gov/iif/soii-charts-2018.pdf [https://perma.cc/7UUG-33PT] (identifying the high number of nonfatal work injuries in manufacturing, construction, and agriculture). ↑
. Zimmerman & Schenker, supra note 86, at 807. ↑
. See Owens et al., supra note 68, at vii; Little Hoover Comm’n, supra note 87, at 8. ↑
. Owens et al., supra note 68, at 152–54. These harms can also be inflicted on friends of trafficked individuals and others not traditionally recognized as family members. Cf. id. ↑
. See Little Hoover Comm’n, supra note 87, at 8. ↑
. See id. ↑
. Telephone Interview with Emily Tulli (July 24, 2020). ↑
. See Nirav K. Desai & Sean Tepfer, Proactive Case Identification Strategies and the Challenges of Initiating Labor Trafficking Cases, U.S. Att’ys’ Bull., Nov. 2017, at 25, 25 (“The call for increased attention to labor trafficking has come from leadership, legislative bodies, survivors, the victim advocate community, and others for several years.”). ↑
. See U.S. Dep’t of State, Trafficking in Persons Report 398 (2014), https://2009-2017.state.gov/documents/organization/226849.pdf [https://perma.cc/3H3Z-4PM
8] (recommending the United States “enhance the training of law enforcement and prosecutors to increase focus on labor trafficking; strengthen prevention efforts, including addressing the demand for forced labor and commercial sex”); U.S. Dep’t of State, Trafficking in Persons Report 353 (2015), https://2009-2017.state.gov/documents/organization/243562.pdf [https://perma.cc/XKY4-ZC3D] (recommending the United States “vigorously prosecute labor trafficking”); U.S. Dep’t of State, Trafficking in Persons Report 388 (2016), https://www.state.gov/wp-content/uploads/2019/02/271339.pdf [https://perma.cc/V3ZG-CXPV] (recommending the United States “[i]ncrease prosecution of cases involving nonviolent forms of coercion and labor trafficking cases, including cases in the U.S. insular areas”); U.S. Dep’t of State, Trafficking in Persons Report 415 (2017), https://www.state.gov/wp-content/uploads/2019/02/271339.pdf [https://perma.cc/Y3J6-ZS3U] (recommending the United States “[i]ncrease investigation and prosecution of labor trafficking cases and cases involving nonviolent forms of coercion”). ↑
. See, e.g., U.S. Dep’t of State, Trafficking in Persons Report, at ii (2018), https://www.state.gov/wp-content/uploads/2019/01/282798.pdf [https://perma.cc/9NMC-7X8
3] [hereinafter 2018 Report]. The 2019 TIP Report has been criticized by advocacy organizations for its overly positive assessment of the United States. See Terry FitzPatrick, 2019 TIP Report Raises Challenging Questions About Sanctions and Future Rankings, All. to End Slavery & Trafficking (June 28, 2019, 3:32 PM), https://endslaveryandtrafficking.org/2019-tip-report-raises-challenging-questions-about-sanctions-and-future-rankings/ [https://perma.cc/HRQ3-JM2H]. ↑
. See supra note 96 and accompanying text. ↑
. 2018 Report, supra note 97, at 442; U.S. Dep’t of State, Trafficking in Persons Report 484 (2019), https://www.state.gov/wp-content/uploads/2019/06/2019-Trafficking-in-Persons-Report.pdf [https://perma.cc/NPV4-HC3E]; U.S. Dep’t of State, Trafficking in Persons Report 515 (2020), https://www.state.gov/wp-content/uploads/2020/06/2020-TIP-Report-Complete-062420-FINAL.pdf [https://perma.cc/HAS8-2VPT] [hereinafter 2020 Report]. ↑
. Elliott B. Daniels, Living Outside the Rule of Law: The Data on Department of Justice Human Trafficking Prosecutions and Where We Go From Here, Dep’t Just. J. Fed. L. & Prac., Nov. 2019, at 169, 176. ↑
. 28 C.F.R. § 0.50(a) (2020) (“The following functions are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Civil Rights Division: . . . Enforcement of all Federal statutes affecting civil rights . . . .”). ↑
. See U.S. Comm’n on Civ. Rts., Are Rights a Reality?: Evaluating Federal Civil Rights Enforcement 70–71 (2019), https://www.usccr.gov/pubs/2019/11-21-Are-Rights-a-Reality.pdf [https://perma.cc/CU8E-A2T4]; see also 8 U.S.C. § 1324 (prohibiting bringing in and harboring certain aliens); 8 U.S.C. § 1328 (prohibiting the importation of aliens for immoral purposes); 18 U.S.C. § 1351 (prohibiting fraud in foreign labor contracting); 18 U.S.C. § 1546 (prohibiting fraud and misuse of visas, permits, and other documents); 18 U.S.C. § 1581 (prohibiting peonage and obstructing enforcement); 18 U.S.C. § 1584 (prohibiting sale into involuntary servitude); 18 U.S.C. § 1589 (prohibiting forced labor); 18 U.S.C. § 1590 (prohibiting trafficking with respect to peonage, slavery, involuntary servitude, or forced labor); 18 U.S.C. § 1591 (prohibiting sex trafficking of children or by force, fraud, or coercion); 18 U.S.C. § 1592 (prohibiting unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery, involuntary servitude, or forced labor); 18 U.S.C. § 1593 (providing for mandatory restitution); 18 U.S.C. § 1594 (establishing general provisions, including prohibiting attempt and conspiracy); 18 U.S.C. § 1596 (providing for additional jurisdiction in certain trafficking offenses); 18 U.S.C. § 2421 (prohibiting transportation related to commercial sex or other criminal sexual activity); 18 U.S.C. § 2422 (prohibiting coercion and enticement related to commercial sex or other criminal sexual activity); 18 U.S.C. § 3271 (prohibiting trafficking in persons by persons employed by or accompanying the Federal Government outside the United States). ↑
. See 18 U.S.C. §§ 1581, 1584, 1589–1590. ↑
. See U.S. Comm’n on Civ. Rts., supra note 102, at 71–72; Kyleigh Feehs & Alyssa Currier, Hum. Trafficking Inst., 2019 Federal Trafficking Report 37 (2020), https://www.traffickinginstitute.org/wp-content/uploads/2020/05/2019-Federal-Human-Traffic
king-Report_Low-Res.pdf [https://perma.cc/5XJ6-KWS9]. ↑
. Department of Justice Components, U.S. Dep’t of Just. (Jan 6, 2017), https://www.justice.gov/humantrafficking/department-justice-components [https://perma.cc/L6UK-F3JA]. ↑
. See Feehs & Currier, supra note 104, at 37. ↑
. See id. (noting that the data is limited to the “27 forced labor cases that identified the investigative agency”). ↑
. Id. ↑
. See Currier & Feehs, supra note 2, at 13. ↑
. Kyleigh E. Feehs & John Cotton Richmond, Hum. Trafficking Inst., 2017 Federal Trafficking Report 19 (2018), https://www.traffickingmatters.com/wp-content/uploads/2018/05/2017-Federal-Human-Trafficking-Report_hi-res.pdf [https://perma.cc/A523-HWB2]. ↑
. See id. at 10–11. ↑
. Id. at 11. ↑
. Id. at 10. The report seeks to capture all Chapter 77 offenses. Id. at 63 (“18 U.S.C. § 1581 (Peonage); 18 U.S.C. § 1582 (Vessels in the Slave Trade); 18 U.S.C. § 1583 (Enticement into Slavery); 18 U.S.C. § 1584 (Involuntary Servitude); 18 U.S.C. § 1585 (Seizure, Detention of Slaves); 18 U.S.C. § 1586 (Service on Vessels for Slave Trade); 18 U.S.C. § 1587 (Possession of Slaves aboard a Vessel); 18 U.S.C. § 1588 (Transportation of Slaves from the United States); 18 U.S.C. § 1589 (Forced Labor); 18 U.S.C. § 1590 (Trafficking for Peonage, Slavery, Involuntary Servitude, or Forced Labor); 18 U.S.C. § 1591 (Sex Trafficking); 18 U.S.C. § 1592 (Documents); 18 U.S.C. § 1593A (Benefitting Financially); 18 U.S.C. § 1594 (Attempt or Conspiracy to Commit Human Trafficking); and 18 U.S.C. § 1597 (Immigration Documents).”). Additionally, the report seeks to include federal “criminal human trafficking cases where the government charged a defendant under statutes outside of Chapter 77, if there is substantial evidence of compelled or coerced labor, services, or commercial sex.” Id. at 62. ↑
. Id. at 10–11. Sometimes, criminal conduct incorporates both sex and labor trafficking. See id. at 11 n.2. The HTI reports determined which form of exploitation predominates and counted it toward the total number of sex and labor trafficking charges. See id. In 2017, the HTI found eighteen federal prosecutions that included sex and labor trafficking in the indictments. Id. Of those, labor trafficking issues predominated in four, and they were counted as such. Id. ↑
. Id. at 10. ↑
. Currier & Feehs, supra note 2, at 6–7. ↑
. Feehs & Currier, supra note 104, at 12. Data released by the U.S. government for 2019 in the 2020 TIP Report was largely consistent with the HTI findings; it reported 208 prosecutions involving predominantly sex trafficking and twelve involving predominantly labor. 2020 Report, supra note 99, at 515. Of the 475 human trafficking convictions secured in 2019, twenty-one involved predominantly labor trafficking. Id. at 516. These rates were slight decreases from 2018 (other than a sharper decline in the number of sex trafficking convictions). See id. ↑
. Feehs & Currier, supra note 104, at 12. ↑
. Id. at 93–95. Federal prosecutors did not bring a single labor trafficking charge in any of the following states or territories during 2019: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wyoming, the District of Columbia, Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands. Id. By comparison, that same year, 573 federal criminal cases were filed in the Northern District of Alabama; 659 in the Eastern District of Arkansas; 1,171 in the Eastern District of Missouri; 726 in the Northern District of Ohio; 8,113 in the Southern District of Texas; and 858 in the Southern District of New York—not one of them was for labor trafficking. U.S. Att’y’s Off., U.S. Dep’t of Just., United States Attorneys’ Annual Statistical Report 2–4 (2019), https://www.justice.gov/usao/page/file/1285951/download [https://perma.cc/PV6M-54L5]. ↑
. Feehs & Currier, supra note 104, at 93–95. ↑
. U.S. Att’y’s Off., supra note 119, at 11–12. ↑
. Id. Less than 0.3% (168 total) were civil rights prosecutions. Id. at 11. ↑
. See Nat’l Hum. Trafficking Hotline, 2019 Data Report, https://polarisproject.org/wp-content/uploads/2019/09/Polaris-2019-US-National-Human-Traff
icking-Hotline-Data-Report.pdf [https://perma.cc/96E9-FC4L]. However, these numbers demonstrate the gap between the existence of the harmful, illegal conduct and the extent to which it occurs without any legal consequence. See id.; U.S. Att’y’s Off., supra note 119, at 11–12. ↑
. Nat’l Hum. Trafficking Hotline, Florida Spotlight, https://humantrafficking
hotline.org/sites/default/files/FL-2018-State-Report.pdf [https://perma.cc/XHA5-V6EV]. ↑
. Currier & Feehs, supra note 2, at 87. ↑
. Nat’l Hum. Trafficking Hotline, Texas Spotlight, https://humantraffickinghotline.org/sites/default/files/TX-2018-State-Report.pdf [https://perm
a.cc/FYK9-SYQT]. ↑
. Currier & Feehs, supra note 2, at 89. ↑
. See id. at 88; Nat’l Hum. Trafficking Hotline, Ohio Spotlight, https://humantraffickinghotline.org/sites/default/files/OH-2018-State-Report.pdf [https://perma.cc/M7FE-ABFT] (observing thirty-four cases involved labor trafficking and twenty-eight cases involved both sex and labor trafficking). ↑
. See J.C.A. Meshelemiah, Criminal Provisions for Human Trafficking: Rankings, State Grades, and Challenges, J. Forensic Legal & Investigative Scis., Nov. 26, 2019, at 1, 1, https://www.heraldopenaccess.us/openaccess/criminal-provisions-for-human-trafficking-rankings-state-grades-and-challenges [https://perma.cc/VT2H-RZ84] (“Due to the clandestine nature of human trafficking, researchers rely on estimates and proxies when determining the prevalence of human trafficking activities in the U.S. as well as around the globe.”). ↑
. While this Article only examines federal prosecutions, it appears that trends are similar at the state and local levels. See Kelly Heinrich & Kavitha Sreeharsha, The State of State Human-Trafficking Laws, Am. Bar Ass’n (Jan. 1, 2013), https://www.americanbar.org/groups
/judicial/publications/judges_journal/2013/winter/the_state_of_state_humantrafficking_laws/ [https://perma.cc/D68D-K7H6]. Some anti-trafficking advocates have observed that this problem tends to be even worse in state courts. See, e.g., Amy Farrell et al., Urb. Inst., Identifying Challenges to Improve the Investigation and Prosecution of State and Local Human Trafficking Cases 193 (2012), https://www.urban.org/sites/default/files
/publication/25526/412593-Identifying-Challenges-to-Improve-the-Investigation-and-Prosecu
tion-of-State-and-Local-Human-Trafficking-Cases.PDF [https://perma.cc/CM4P-7V67] (discussing how most human trafficking cases identified by local law enforcement were prosecuted federally). ↑
. Luis C.deBaca, Storm Clouds on the Horizon for U.S. Human Trafficking Rankings, Thomson Reuters Found., https://news.trust.org/item/20200629130908-h53g1#new_tab [https://perma.cc/3JJN-YQZL]. C.deBaca currently serves as the Senior Fellow at Yale University’s Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition. Id. ↑
. Id. While C.deBaca noted that the data relied on in the Report is imperfect, it still serves as a “rough guide.” Id. ↑
. See discussion infra Sections IV.A–B. ↑
. See discussion infra Sections IV.A–B. ↑
. See Farrell et al., supra note 42, at 4. As federal prosecution of labor trafficking relies on identification and investigation by all levels of law enforcement, this Section incorporates an analysis of local, state, and federal officers and agencies. ↑
. See discussion infra Sections IV.A.1–10. ↑
. Labor traffickers can be supervisors, recruiters, or others associated with the trafficked individual; they are not always employers. See Owens et al., supra note 68, at 35. Nonetheless, workplace exceptionalism impacts the identification, investigation, and prosecution of their crimes as well. Telephone Interview with Stacie Jonas, Lead Att’y, Human Trafficking Project, Tex. Rio Grande Legal Aid (Jan. 10, 2020). ↑
. See Few Prosecuted for Illegal Employment of Immigrants, TRAC Immigration (May 30, 2019), https://trac.syr.edu/immigration/reports/559/ [https://perma.cc/NYN3-ZZCJ]. ↑
. Telephone Interview with Stacie Jones, supra note 137. ↑
. Compare, for example, the willingness of law enforcement to arrest a homeless shoplifter for stealing a nominal amount of food from a large retailer and law enforcement’s resistance to investigating (let alone prosecuting) an employer who refuses to pay an employee hundreds of dollars for two weeks of work. Advocates coined the term “wage theft” to describe employers’ failure to pay wages owed and to challenge complacency pervasive around wage nonpayment. See, e.g., Daniel A. Schwartz, “Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means, Conn. Emp. L. Blog (Apr. 23, 2014), https://www.ctemploymentlawblog.com/2014/04/articles/wage-theft-the-trendy-phrase-that-ru
ns-amok/ [https://perma.cc/LX2F-G3DF]. Some lawyers have objected that the term is misleading in those instances where the failure to comply with wage and hour law was not intentional or did not violate a criminal law, but the term is one method to challenge cultural norms that accommodate and overlook violations of workers’ rights. Id. ↑
. U.S. Dep’t of Just., National Strategy to Combat Human Trafficking 3 (Jan. 2017), https://www.justice.gov/humantrafficking/page/file/922791/download [https://per
ma.cc/9QR8-5ZNV]; Telephone Interview with Stacie Jones, supra note 137; Telephone Interview with Patricia Medige, Senior Att’y, Colo. Legal Servs. (Feb. 5, 2020). ↑
. See, e.g., Press Release, Econ. Pol’y Inst., Employers Are Charged with Violating Federal Law in Four Out of Every 10 Union Elections (Dec. 11, 2019), https://www.epi.org/press/employers-are-charged-with-violating-federal-law-in-four-out-of-every-10-union-elections/ [https://perma.cc/XG22-6V3E] (finding violations of employees’ rights to organize in 41.5% of all union elections); David Cooper & Teresa Kroeger, Econ. Pol’y Inst., Employers Steal Billions From Workers’ Paychecks Each Year 1 (2019), https://www.epi.org/publication/employers-steal-billions-from-workers-paychecks-ea
ch-year/ [https://perma.cc/5X8J-J5C8] (estimating workers in the ten most populous states lose $8 billion each year due to minimum wage violations). ↑
. This derives from “agricultural exceptionalism”—a term describing the exclusion of farmworkers from coverage by nearly all federal labor and employment protections. For a discussion of this concept, see Guadalupe T. Luna, An Infinite Distance?: Agricultural Exceptionalism and Agricultural Labor, 1 U. Pa. J. Lab. & Emp. L. 487, 489 (1998). See also Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal, 65 Tex. L. Rev. 1335, 1335–38 (1987) (discussing the origins of agricultural exceptionalism). ↑
. See Josh Bivens & Heidi Shierholz, Econ. Pol’y Inst., What Labor Market Changes Have Generated Inequality and Wage Suppression? 8–9 (2018), https://files.epi.org/pdf/148880.pdf [https://perma.cc/24Y6-SE6R]. ↑
. Like agricultural exceptionalism, workplace exceptionalism has its roots partly in slavery and its aftermath. See Jennifer Roback, Exploitation in the Jim Crow South: The Market or the Law?, AEI J. on Gov’t & Soc’y, Sept./Dec. 1982, at 37, 38, https://www.cato.org/sites/cato.org/files/serials/files/regulation/1984/12/v8n5-6.pdf [https://
perma.cc/8LLZ-PBET] (discussing how the labor laws of the Jim Crow era aided “an otherwise unenforceable labor-market cartel among white employers”). Early southern police operated to ensure enslaved people did not escape or revolt and to ensure they were punished when they did. Chelsea Hansen, Slave Patrols: An Early Form of American Policing, Nat’l L. Enf’t Museum: Blog: On Beat (July 10, 2019), https://lawenforcementmuseum.org/2019/07/10/sla
ve-patrols-an-early-form-of-american-policing/ [https://perma.cc/38MR-MHPD]. After the Civil War, southern police sought to continue to control formerly enslaved people who were still performing agricultural work in the South and to enforce the Jim Crow segregation laws. Gary Potter, E. Ky. Univ., The History of Policing in the United States (2013), https://plsonline.eku.edu/sites/plson
line.eku.edu/files/the-history-of-policing-in-us.pdf [https://perma.cc/5CXN-XPNW]. ↑
. See 29 U.S.C. §§ 201–219 (containing statutes relating to the Fair Labor Standards Act); 29 U.S.C. §§ 151–169 (containing statutes relating to the National Labor Relations Act); 29 U.S.C. §§ 651–678 (containing statutes relating to OSHA); 42 U.S.C. §§ 2000e to 2000e-17 (containing statutes relating to Title VII of the Civil Rights Act of 1964); 29 U.S.C. §§ 621–634 (containing statutes relating to age discrimination).
Federal agencies involved in the enforcement of these laws include the Wage and Hour Division of the U.S. Department of Labor, 29 U.S.C. § 204; the National Labor Relations Board, 29 U.S.C. § 153; the Occupational Safety and Heath Review Commission, 29 U.S.C. § 661; and the Equal Employment Opportunity Commission, 42 U.S.C. § 2000e-4. Not all workplaces are covered by these federal laws—or even any equivalent state law. See, e.g., Occupational Safety & Health Admin., OSHA 3021-06R 2017, Worker’s Rights 5 (2017), https://www.osha.gov/Publications/osha3021.pdf [https://perma.cc/3ZA8-QHE4] (listing states and territories with OSHA-approved programs). As an example, federal minimum wage and overtime requirements generally only apply to employers and employees who are engaged in interstate commerce or to larger employers who gross over $500,000 annually. Wage & Hour Div., U.S. Dep’t of Lab., Fact Sheet #14: Coverage Under the Fair Labor Standards Act (FLSA) (July 2009), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs14.
pdf [https://perma.cc/9PYK-WLE6]. Agricultural workers are excluded from the right to overtime altogether—regardless of their employer’s size. 29 U.S.C. § 213(b)(12). ↑
. See Kate Hamaji et al., Econ. Pol’y Inst., Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers Are Fighting Back 5–7 (2019), https://files.epi.org/uploads/Unchecked-Corporate-Power-web.pdf [https://perma.
cc/Y63T-E84R]; Daniel Costa, Immigration Enforcement Is Funded at a Much Higher Rate than Labor Standards Enforcement—and the Gap Is Widening, Econ. Pol’y Inst.: Working Econ. Blog (June 20, 2019, 2:54 PM), https://www.epi.org/blog/immigration-enforcement-is-funded-at-a-much-higher-rate-than-labor-standards-enforcement-and-the-gap-is-widening/ [https://per
ma.cc/B45N-YMV6]; Marianne Levine, Behind the Minimum Wage Fight, a Sweeping Failure to Enforce the Law, Politico (Feb. 8, 2018, 6:51 AM), https://www.politico.com/story/2018/
02/18/minimum-wage-not-enforced-investigation-409644 [https://perma.cc/X56K-YQVX]. ↑
. See Blake Weiner et. al., Employment Law Violations, 55 Am. Crim. L. Rev. 1049, 1079–93 (2018) (summarizing federal criminal workplace safety and employment statutes, including the Labor Management Relations Act and the Labor-Management Reporting and Disclosure Act). ↑
. Few Prosecuted for Illegal Employment of Immigrants, supra note 138. This is true even for violations of federal immigration laws prohibiting employment of foreign nationals who lack work authorization—a stated priority of the Trump Administration. Id. Instead of prosecuting employers, it is employees who are detained, charged, and deported. Id. (finding that “since criminal penalties for employers were first enacted by Congress in 1986, few employers have ever been prosecuted under these provisions (8 USC 1324a) [sic]. Prosecutions have rarely climbed above 15 annually and have never exceeded 20 individuals a year except for brief periods during 2005 under President Bush and in the first year of the Obama Administration.”); see also Renae Merle, As Workplace Raids Multiply, Trump Administration Charges Few Companies, Wash. Post (Aug. 9, 2019, 5:45 PM), https://www.washingtonpost.
com/business/2019/08/09/workplace-raids-multiply-trump-administration-charges-few-compa
nies/ [https://perma.cc/2E7H-P526]. ↑
. 29 U.S.C. § 666(e). Employers can also be criminally prosecuted for willful violations of the Federal Mine Safety and Health Act, 30 U.S.C. § 820(d); the Clean Water Act, 33 U.S.C. § 1319(c)(3); and the Clean Air Act, 42 U.S.C. § 7413(c)(5)(B). ↑
. See, e.g., Sam Pearson, Clean Air Case Yields Rare Criminal Convictions in New York, Ctr. Pub. Integrity (May 19, 2014, 12:19 PM), https://publicintegrity.org/environmen
t/clean-air-case-yields-rare-criminal-convictions-in-new-york/ [https://perma.cc/US8Y-9QA5]. State laws may be more stringent. For example, in California, “the California Bureau of Investigation is required to investigate every workplace fatality, or any incident that seriously injured five or more employees to determine whether to refer the matter for criminal prosecution.” Lisa Nagele-Piazza, Employers May Face State Criminal Liability for Safety Violations, Soc’y Hum. Res. Mgmt. (Mar. 16, 2017), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/
employers-may-face-state-criminal-liability-for-safety-violations.aspx [https://perma.cc/ZD7B
-U7A3]. There are also additional state criminal penalties for workplace injuries and deaths. See, e.g., Cal. Health & Safety Code §§ 25189.5–25189.7 (West, Westlaw through Ch. 31 of 2020 Reg. Sess.). ↑
. 29 U.S.C. § 216(a). ↑
. Jennifer J. Lee & Annie Smith, Regulating Wage Theft, 94 Wash. L. Rev. 759, 772, 780 (finding 10% of the 141 state and local jurisdictions that passed wage theft laws from 2005 through 2018 authorized criminal penalties). ↑
. Telephone Interview with Stacie Jonas, supra note 137; see Amy Farrell et al., Policing Labor Trafficking in the United States, 23 Trends in Organized Crime 36, 39 (2019) (“Even when confronted with labor trafficking indicators, officers are likely to apply heuristic tools based on an understanding of human trafficking as commercial sexual exploitation or prostitution, areas of policing that are more familiar to officers, and misidentify or fail to recognize labor violations that qualify as a criminal offense.”). ↑
. Telephone Interview with Stacie Jonas, supra note 137. ↑
. Id. ↑
. See infra notes 158–254 and accompanying text. ↑
. Hilary Axam & Jennifer Toritto Leonardo, Human Trafficking: The Fundamentals, U.S. Att’ys’ Bull., Nov. 2017, at 3, 4; Farrell et al., supra note 154, at 39 (“Even when confronted with labor trafficking indicators, officers are likely to apply heuristic tools based on an understanding of human trafficking as commercial sexual exploitation or prostitution, areas of policing that are more familiar to officers . . . , and misidentify or fail to recognize labor violations that qualify as a criminal offense.”). See generally Dina Francesca Haynes, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 Geo. Immigr. L.J. 337 (2007) (discussing the “two primary problems thwarting Congress’ intent to protect victims and prosecute their traffickers”). ↑
. Farrell et al., supra note 154, at 39; Telephone Interview with Stacie Jonas, supra note 137. ↑
. Farrell et al., supra note 154, at 38. ↑
. Florrie Burke, Innovations in the Fight Against Human Trafficking: Advocates’ Perspectives and Proposals, 60 N.Y.L. Sch. L. Rev. 615, 616–617 (2015–2016). ↑
. Telephone Interview with Stacie Jonas, supra note 137. ↑
. See Axam & Leonardo, supra note 158, at 5. ↑
. Farrell et al., supra note 154, at 41 (“The labor trafficking tips received from good Samaritans, concerned family members, hotline calls, and the general public were described by police respondents as difficult to pursue because of a limited understanding about what actions/acts constitute labor trafficking both among the general public and among law enforcement officials”). Prosecutors are also not immune to misunderstandings about labor trafficking. Id. at 42. In one instance, a federal prosecutor reported declining to prosecute a case because the victim’s movements were not physically restrained and, thus, the prosecutor did not believe the situation constituted trafficking. Id. Confirmation bias may also play a role. Shelley Cavalieri, The Eyes That Blind Us: The Overlooked Phenomenon of Trafficking into the Agricultural Sector, 31 N. Ill. U. L. Rev. 501, 512 (2011). ↑
. Norwood, supra note 20, at 215. ↑
. Polaris Project, Human Trafficking at Home: Labor Trafficking of Domestic Workers 47 (2019), https://polarisproject.org/wp-content/uploads/2019/09/Huma
n_Trafficking_at_Home_Labor_Trafficking_of_Domestic_Workers.pdf [https://perma.cc/JC
V6-M6WB]. ↑
. Little Hoover Comm’n, supra note 87, at 11. ↑
. This is not a uniquely American phenomenon. See, e.g., Eleanor Turner-Moss et al., Labour Exploitation and Health: A Case Series of Men and Women Seeking Post-Trafficking Services, 16 J. Immigrant & Minority Health 473, 473 (2014) (noting that, in the United Kingdom, sex trafficking had been the primary focus of anti-trafficking programs and research on the health consequences of trafficking). For an understanding of the development of this phenomenon, see Chuang, supra note 17, at 613–19; Chuang, supra note 19, at 1657. ↑
. Cf. Chuang, supra note 19, at 1657 (categorizing trafficking broadly as either sex-sector trafficking or non-sex-sector trafficking). ↑
. See supra Section IV.A.1 for a discussion of workplace exceptionalism. ↑
. Farrell et al., supra note 154, at 37, 44–45 (“[P]olice efforts have focused more heavily on the identification and investigation of sex trafficking cases as compared to offenses categorized as labor trafficking.”); C.deBaca, supra note 131 (“Bringing sex trafficking under the human rights basis of anti-slavery laws and treaties was meant to extend protection to those victims, not to shift enforcement entirely to sexual exploitation.”) ↑
. See Leila Miller, Why Labor Trafficking Is So Hard to Track, Frontline (Apr. 24, 2018), https://www.pbs.org/wgbh/frontline/article/why-labor-trafficking-is-so-hard-to-track/ [https://perma.cc/L2RK-JSM8] (“Experts and advocates alike describe a self-perpetuating cycle, wherein agencies may not direct resources toward labor trafficking because the issue is rarely the focus of media attention.”). ↑
. Freedom Network USA, Labor Trafficking is a Women’s Rights Issue (2010), https://freedomnetworkusa.org/app/uploads/2016/12/Labor_Trafficking_is_a_Women
_s_Rights_Issue_September_2010b.pdf [https://perma.cc/98EV-5QP3]. ↑
. Jennifer M. Chacon, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 Fordham L. Rev. 2977, 3011–12 (2006). ↑
. Philip Gnaedig et al., Coal. to Abolish Slavery & Trafficking, Labor Trafficking Cases 2008-2018: Data Analysis Report 1 (2019), https://www.castla.org/wp-content/uploads/2019/11/CAST-NERA-Labor-Trafficking-Cases-Data-Analysis-Nov2019Report-Final.pdf [https://perma.cc/27FN-HZ44]. ↑
. See Desai & Tepfer, supra note 95, at 26. ↑
. See Annie Smith, COVID-19 and Vulnerability to Human Trafficking, UARKLaw Insights (July 2, 2020), https://law.uark.edu/insights/insinsig-smith-immigration-20200702.php [https://perma.cc/J6KK-654Q]; Little Hoover Comm’n, supra note 87, at 7. The need to take these important steps to limit the spread of COVID-19 was certainly warranted, but one of the likely unintended consequences was to cause trafficked individuals to become even more isolated. ↑
. 2018 Report, supra note 97, at 9. ↑
. Sarah Frost & Liz Veale, Speaking Up: One Woman’s Powerful Account of Human Trafficking, DipNote: Hum. Trafficking (June 29, 2018), https://www.state.gov/speaking-up-one-womans-powerful-account-of-human-trafficking/ [https://perma.cc/E525-AREX]. ↑
. Final Default Judgment, Magnifico v. Villanueva, No. 10-CV-80771, 2012 WL 5395026, at *1, *5 (S.D. Fla. Nov. 2, 2012) (providing an example of labor trafficking of country club servers); Paguirigan v. Prompt Nursing Emp. Agency LLC, 17-cv-1302, 2019 WL 4647648, at *18 (E.D.N.Y. Sept. 23, 2019) (providing an example of labor trafficking in nursing homes). ↑
. See Annie Smith, Imposing Injustice: The Prospect of Mandatory Arbitration for Guestworkers, 40 N.Y.U. Rev. L. & Soc. Change 375, 389–91 (2016) (describing the vulnerability faced by guestworkers living in profound isolation); see also Polaris, supra note 20, at 17–19 (discussing traffickers’ exploitation of cultural and language differences). ↑
. Desai & Tepfer, supra note 95, at 26; Little Hoover Comm’n, supra note 87, at 13; Denise Brennan, Myths Meet Reality: How We Are Not Fighting Trafficking or Supporting Trafficking Survivors, 60 N.Y.L. Sch. L. Rev. 605, 608 (2015–2016); Farrell et al., supra note 154, at 38. Foreign nationals originally from countries with particularly corrupt law enforcement agencies may struggle to trust law enforcement based on their prior experiences as well. See Joyce Koo Dalrymple, Human Trafficking: Protecting Human Rights in the Trafficking Victims Protection Act, 25 B.C. Third World L.J. 451, 466 (2005). Furthermore, to the extent that victims have engaged in any criminal conduct, they may be particularly fearful of law enforcement. Id. ↑
. Roe-Sepowitz et al., supra note 44, at 11, 13 (“Thirty-eight (30.4%) labor traffickers threatened to report the victims to the immigration for deportation and 33 (26.4%) withheld victims’ passport/visa. . . . To control and entrap the victim during the recruitment, 30.4% (n = 38) of the labor traffickers threatened to report the victim to the immigration for deportation, and 26.4% (n = 33) of labor traffickers withheld victims’ passports/visas.”). ↑
. Norma González, The “Other” Side of Human Trafficking: Effectively Advocating for Labor Trafficking Survivors Under the Trafficking Victims Protection Act, 14 Seattle J. for Soc. Just. 839, 868–69 (2016); Rebecca Smith et al., Iced Out: How Immigration Enforcement Has Interfered with Workers’ Rights 6 (2009), https://www.jwj.org/wp-content/uploads/2013/12/icedout_report.pdf [https://perma.cc/3DV3-ZVPL]. ↑
. Roe-Sepowitz et al., supra note 44, at 19. ↑
. See Smith, supra note 177; see also Jim Daley, Trump’s Nativist Rhetoric Scares Immigrants Away from Seeking Medical Care, Sci. Am. (Oct. 30, 2019), https://www.scientificamerican.com/article/trumps-nativist-rhetoric-scares-immigrants-away-from-seeking-medical-care/ [https://perma.cc/4KCC-WRQM] (discussing how President Trump’s rhetoric impacts immigrant access to medical care, as evidenced by a 2018 study that found one-quarter of undocumented Latinx patients surveyed were afraid to go to the hospital due to President Trump’s statements about immigrants; and half of them delayed medical treatment as a result); Robert M. Rodriguez et al., Declared Impact of the US President’s Statements and Campaign Statements on Latino Populations’ Perceptions of Safety and Emergency Care Access, PLOS ONE (Oct. 30, 2019), https://journals.plos.org/plosone/article
?id=10.1371/journal.pone.0222837 [https://perma.cc/UC2B-SM3U]; Brennan, supra note 182, at 608–09 (arguing that state and local policies that facilitate racial profiling, including 287(g), must be terminated to prevent labor trafficking). ↑
. See, e.g., Smith, supra note 181, at 387–88; Int’l Lab. Recruitment Working Grp., The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse 7 (2013), http://fairlaborrecruitment.files.wordpress.com/
2013/01/final-e-version-ilrwg-report.pdf [https://perma.cc/XW2W-NJHQ] [hereinafter American Dream]; Mary Bauer, S. Poverty L. Ctr., Close To Slavery: Guestworker Programs in the United States 4–5 (Booth Gunter ed., 2013), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/SPLC-Clo
se-to-Slavery-2013.pdf [https://perma.cc/78F4-YTT9]; Meeting of June 17, 2015 Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention, 114th Cong. (2015) (Written Testimony of Daniel Werner, Senior Supervising Att’y, S. Poverty L. Ctr. Before U.S. Equal Emp. Opportunity Comm.), https://www.eeoc.gov/meetings/meeting-june-17-2015-retaliation-workplace-causes-remedies-and-strategies-prevention/werner [https://perma.cc/6XRF-Y7GS] [hereinafter Werner]. ↑
. Werner, supra note 187. ↑
. See, e.g., 8 C.F.R. § 214.2(h)(1)(i) (2020). While it is possible in theory for guestworkers to switch employers in some circumstances, in reality, it is very difficult to do so—particularly for low wage workers. See id. § 214.2(h)(2)(i)(D) (2020). ↑
. See Werner, supra note 187. ↑
. See Ashwini Sukthankar, Glob. Workers Just. All., Visas, Inc.: Corporate Control and Policy Incoherence in the U.S. Temporary Foreign Labor System 47–48 (2012), https://fairlaborrecruitment.files.wordpress.com/2013/01/visas-inc.pdf [https://perm
a.cc/U9NA-P8GD]; Merle, supra note 149. ↑
. See Farrell et al., supra note 154, at 54; Telephone Interview with Susan French, Human Trafficking Legal Consultant (Dec. 5, 2019). ↑
. See Phillip Atiba Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force 15 (2016) https://policingequity.org/images/pdfs-doc/CPE_SoJ_Race-Arrests-UoF_2016-07-08-1130.pdf [https://perma.cc/CQ97-XNCY] (discussing racial disparities in the use of force); see also Ryan D. King & Michael T. Light, Have Racial and Ethnic Disparities in Sentencing Declined?, 48 Crime & Jus. 365, 366 (2019) https://www.journals.uchicago.edu/doi/pdfplus/10.1086/701505 [https://perma.cc/HZB3-CQF
2] (discussing racial disparities in sentencing); Cassia Spohn, Race and Sentencing Disparity, 4 Reforming Crim. Just. 169, 171 (2017) https://law.asu.edu/sitesdefault/files/pdf/academy_
for_justice/9_Criminal_Justice_Reform_Vol_4_Race-and-Sentencing-Disparity.pdf [https://pe
rma.cc/T9D6-YWXD] (discussing racial disparities in sentencing). ↑
. Anannya Bhattacharjee, Whose Safety? Women of Color and the Violence of Law Enforcement 20 (2001), https://www.afsc.org/sites/default/
files/documents/whose%20safety.pdf [https://perma.cc/TD2T-QLBU]; see also Chandra Thomas Whitfield, It’s Complicated: Why Some Black Women Refuse to Call the Police When Their Black Male Partners Threaten Their Lives, the grio (Apr. 10, 2019), https://thegrio.com/2019/04/10/why-some-black-women-refuse-to-call-police-black-male-partners/ [https://perma.cc/8BKQ-JWTJ] (discussing this issue in the context of domestic violence against Black women); Black Immigrant Lives Are Under Attack, The Refugee & Immigrant Ctr. for Educ. & Legal Servs., https://www.raicestexas.org/2020/07/22/black-immigrant-lives-are-under-attack/ [https://perma.cc/YF2T-Z5VP] (demonstrating that Black immigrants in the United States are subjected to high rates of family detention, solitary confinement, asylum rejection, and deportation on criminal grounds). ↑
. See infra Section IV.A.5. ↑
. Hum. Trafficking Inst., supra note 104, at 33. There may have been other forms of coercion that are not included in the materials the HTI reviews for the purposes of its report. ↑
. Id. ↑
. Owens et al., supra note 68, at 127, 209 (explaining that foreign national victims’ traffickers can have connections in the country of origin who can continue threaten the victim and their family); see Katie Mettler, An African Girl Was Forced to Work Like a ‘Slave’ for 16 Years. Neighbors Helped Her Escape., Wash. Post (Apr. 23, 2019, 5:44 PM), https://www.washingtonpost.com/nation/2019/04/23/texas-couple-who-enslaved-young-girl-sentenced-years-prison-then-deportation/ [https://perma.cc/R3B9-JM4Z] (“Forced labor trafficking cases are notoriously difficult to prosecute — in part because victims are often afraid to speak out.”). ↑
. See infra Section VI.B.4 (discussing victim preferences regarding whether to participate in a prosecution or whether a prosecution should move forward). ↑
. This anecdote is based upon the author’s work in an unfiled matter. Therefore, neither a case name nor identifying information can be provided. ↑
. See, e.g., Bauer, supra note 187, at 16. ↑
. Werner, supra note 187 (“Migrant workers from politically unstable countries face an additional layer of vulnerability. With political instability, resources supporting a robust civil society decline. Corruption often takes its place and impunity pervades all levels of the justice system. Transnational migrants returning home, or the families of the migrants who remained home, are painfully aware that threats to themselves and their loved ones will go unpunished, and local law enforcement may even be complicit in these threats. Further, networks of contractors will often exercise near total control over the recruitment market across swaths of territory in source countries. This monopoly, coupled with impunity, give contractors disproportionate power over the transnational migrants they recruit.”) (footnote omitted); see, e.g., Bauer, supra note 187, at 16–17 (noting that representatives for an employer traveled to a remote Guatemalan community to coerce guestworkers into excluding themselves from participation in a class action for unpaid wages by threatening not to renew their visas in future years). In some instances, deeds to the guestworkers’ family homes had been given as collateral. Id. at 11. ↑
. See, e.g., discussion supra Part I. ↑
. See infra Section VI.B.4. ↑
. 28 C.F.R. § 1100.35 (2020). See generally U.S. Immigr. & Customs Enf’t, Continued Presence: Temporary Immigration Designation for Victims of Human Trafficking, https://www.dhs.gov/sites/default/files/publications/blue-campaign/19_1028_bc
-pamphlet-continued-presence.pdf [https://perma.cc/4NHQ-683L]. ↑
. 22 U.S.C. § 7105(b)(1)(A); see 8 C.F.R. § 214.11(d)(3)(iii) (2020). ↑
. U.S. Immigr. & Customs Enf’t, supra note 205 (“Law enforcement is urged to make an expeditious initial determination of CP eligibility and to complete the application as early as practicable upon encountering a victim. A best practice is for law enforcement to bring the paperwork to an interview; if the individual credibly appears to be a victim and law enforcement will take any additional actions, then CP should be requested. . . . Law enforcement should not be selective but should request CP for every identified victim who lacks immigration status and may be a potential witness to be available, if necessary, for the investigation.”). ↑
. Owens et al., supra note 68, at 133–35, 202; see González, supra note 184, at 849–50. ↑
. See 2018 Report, supra note 97, at 446. ↑
. Id. at 445–46. Under the Trump Administration, T visas became more difficult to secure. See, e.g., Michael Gordon, Lured to U.S. at 16, She Sought Visa for Trafficking Victims. Now She May Be Deported, Charlotte Observer (Sept. 11, 2020, 1:47 PM), https://www.charlotteobserver.com/news/local/crime/article245622580.html [https://perma.cc
/QC9X-XNX6]. ↑
. 8 U.S.C. § 1184(p)(1); id. § 214.11(d)(3) (2020). ↑
. Natalie Nanasi, The U Visa’s Failed Promise for Survivors of Domestic Violence, 29 Yale J.L. & Feminism 273, 303–06 (2018); Haynes, supra note 158, 359–60. ↑
. See Lauren Smiley, U-Visa: Illegal Immigrants Become Legal Residents Via Crime
Victimization, SF Weekly (Mar. 16, 2011, 4:00 AM), https://www.sfweekly.com/news/u-visa-illegal-immigrants-become-legal-residents-via-crime-victimization/ [https://perma.cc/4WT6-N
LN3]. ↑
. See infra Section IV.A.9. ↑
. See Farrell et al., supra note 154, at 38, 44; Deborah Grubb & Katherine Bennett, The Readiness of Local Law Enforcement to Engage in US Anti-Trafficking Efforts: An Assessment of Human Trafficking Training and Awareness of Local, County, and State Law Enforcement Agencies in the State of Georgia, 13 Police Prac. & Rsch. 487, 489 (2012); Claire M. Renzetti et al., Does Training Make a Difference? An Evaluation of a Specialized Human Trafficking Training Module for Law Enforcement Officers, 38 J. Crime & Just. 334, 336 (2015); Deborah G. Wilson et al., Trafficking in Human Beings: Training and Services Among US Law Enforcement Agencies, 7 Police Prac. & Rsch. 149, 158 (2006); U.S. Dep’t of Just. et al., Federal Strategic Action Plan on Services for Victims of Human Trafficking in the United States 2013–2017 32 (2014) https://ovc.ojp.gov/sites/g/files/xyckuh226/files/me
dia/document/FederalHumanTraffickingStrategicPlan.pdf [https://perma.cc/26CJ-6CQN] (“The ability of law enforcement to effectively identify victims and hold offenders accountable depends on their capacity to connect with and support victims. It is also critically important that they know of services and immigration benefits available for victims of human trafficking.”). ↑
. Farrell et al., supra note 154, at 44. ↑
. Grubb & Bennett, supra note 215, at 489. When trafficked individuals are out of the immediate labor trafficking situation and are receiving services, their attorney or other service provider is more likely to reach out to the FBI or another federal agency rather than local or state law enforcement. See Roe-Sepowitz et al., supra note 44, at 28. ↑
. See Little Hoover Comm’n, supra note 87, at 13; Amy Farrell et al., Inst. on Race & Just., Understanding and Improving Law Enforcement Responses to Human Trafficking 112 (2008), https://www.ncjrs.gov/pdffiles1/nij/grants/222752.pdf (finding that, in 2008, “only 18 percent of local, country or state law enforcement agencies nationwide have had some type of human trafficking training”). ↑
. Little Hoover Comm’n, supra note 87, at 13. ↑
. Farrell et al., supra note 154, at 38. ↑
. Farrell et al., supra note 218, at 3. But see Farrell et al., supra note 154, at 38 (noting a 2019 report that asserts law enforcement officers believe labor trafficking occurs in their jurisdictions). ↑
. Farrell et al., supra note 218, at 112. ↑
. Farrell et al., supra note 154, at 42. ↑
. Id. ↑
. Telephone Interview with Patricia Medige, supra note 141. ↑
. Farrell et al., supra note 154, at 39, 46. ↑
. Id. at 37. ↑
. See supra Section IV.A.2 (discussing pervasive myths related to labor trafficking). ↑
. Desai & Tepfer, supra note 95, at 26. ↑
. See Farrell et al., supra note 154, at 38 (“[L]abor-trafficked persons typically do not present themselves as victims . . . .”). ↑
. See id. at 38–39 (detailing challenges to change police department policies). ↑
. See, e.g., Ark. Code Ann. § 5-18-101 to 105 (West, Westlaw through 2020 1st Extraordinary Sess. and the 2020 Fiscal Sess. of the 92d Ark. Gen. Assemb.). ↑
. Telephone Interview with Stacie Jonas, supra note 137; Telephone Interview with Susan French, supra note 192; Farrell et al., supra note 154, at 44. ↑
. Farrell et al., supra note 154, at 39. ↑
. Id. at 38. ↑
. Desai & Tepfer, supra note 95, at 26. ↑
. Id. ↑
. Id. ↑
. Id. ↑
. Farrell et al., supra note 154, at 39, 46. ↑
. See id. at 46. However, labor trafficking also occurs in spaces like homes of lower-income individuals, hotels, and motels that are more regularly policed for crimes including domestic violence, drug offenses, and commercial sex. See, e.g., Freedom Network USA, supra note 173. ↑
. Telephone Interview with Patricia Medige, supra note 141; Farrell et al., supra note 154, at 44. ↑
. Farrell et al., supra note 218, at 115. ↑
. Id. at 108–109. While not specifically a vice unit, labor trafficking cases are worked under the FBI’s Crimes Against Children and Human Trafficking program, and the FBI operates FBI Child Exploitation and Human Trafficking Task Forces in most field offices to collaborate with state and local law enforcement; the names of the program and taskforce themselves suggest the institutional focus may tend towards sexual exploitation. What We Investigate: Human Trafficking, FBI, https://www.fbi.gov/investigate/violent-crime/human-trafficking [https://perm
a.cc/9EDP-U68M]. Within HSI, there are “dedicated human trafficking investigative groups in the Special Agent in Charge field offices” throughout the United States. Human Trafficking, U.S. Immigr. & Customs Enf’t (Feb. 13, 2020), https://www.ice.gov/features/human-trafficking [https://perma.cc/V3W9-D9AR]. ↑
. Farrell et al., supra note 154, at 44–45. ↑
. See Ieke De Vries, Connected to Crime: An Exploration of the Nesting of Labour Trafficking and Exploitation in Legitimate Markets, 59 Brit. J. Criminology 209 (2019) (identifying legitimate industries that are prone to labor trafficking). ↑
. Roe-Sepowitz et al., supra note 44, at 7 (“The majority of labor traffickers (n = 61, 78.2%) worked in private or service industries (truck or taxi drivers, repairmen, own or operate restaurants or owners of small businesses). Some labor traffickers (n = 5, 6.4%) owned or worked at construction job, or were public figures (athlete, actor, politician, member of royal family) (n=4, 5.1%). Three (3.8%) labor traffickers held positions of authority, such as law enforcement, firefighter, nurse, etc. Two (2.6%) labor traffickers were military officials, two (2.6%) labor traffickers were students (at a college or university), and one (1.3%) labor trafficker worked at school.”). ↑
. See González, supra note 184, at 852. ↑
. Desai & Tepfer, supra note 95, at 25–26; Farrell et al., supra note 154, at 39. ↑
. Little Hoover Comm’n, supra note 87, at 12. ↑
. Id. ↑
. Farrell et al., supra note 154, at 43. ↑
. These impacts include traumatic bonding, difficulty with memory, and mental health challenges. See 2018 Report, supra note 97, at 24. At least to some extent, impacts can be mitigated by access to supportive services and other resources that help to provide long-term stability. González, supra note 184, at 861–62. ↑
. Farrell et al., supra note 154, at 37. ↑
. See supra Section IV.A. ↑
. U.S. Dep’t of Just., General Legal Activities Civil Rights Division (CRT) FY 2019 Budget Request at a Glance, https://www.justice.gov/file/1033091/download [https://perma.cc/K9U7-4AMJ] [hereinafter FY 2019 Budget Request]. But see Daniels, supra note 100, at 176–77 (explaining that the DOJ is particularly well-positioned to prosecute these long-term and complex cases). ↑
. FY 2019 Budget Request, supra note 256. ↑
. E.g., id. Among other things, investigations of labor trafficking can require securing a victim statement, corroborating a victim’s immigration and personal history, identifying and interviewing witnesses, and collecting business records that are often protected by non-disclosure orders through a combination of ex parte orders, subpoenas, and search warrants. E-mail from Elliott Daniels, Assistant U.S. Att’y, Dist. of South Carolina, to author (Dec. 11, 2020) (on file with author). ↑
. Susan French & Cindy C. Liou, The Importance of Strategic, Victim-Centred Human Trafficking Prosecutions, 6 Anti-Trafficking Rev. 114, 115 (2016). ↑
. See Feehs & Currier, supra note 104, at 66–67. In 2019, charges against labor trafficking defendants took an average of one year longer to resolve than those primarily involving sex trafficking. Id. at 67. Resolution of labor trafficking charges ranged from fifteen years to just three months with an average of three years and three months. Id. ↑
. Id. at 66. ↑
. Id. ↑
. Telephone Interview with Patricia Medige, supra note 141. ↑
. See 22 U.S.C. § 7102(11); Feehs & Richmond, supra note 110, at 62. ↑
. See 22 U.S.C. § 7102(11). The “force, fraud, or coercion” language is taken from the definition of a severe form of trafficking in persons, but the principles largely apply to the labor trafficking crimes. Id. ↑
. 18 U.S.C. § 1589. Additionally, someone who knowingly benefits from a venture that engaged in this conduct and who knew or was in reckless disregard of the fact that it did so can also be charged under the statute. Id. § 1589(b). ↑
. 18 U.S.C. § 1590; see, e.g., Adia v. Grandeur Mgmt., Inc., 933 F.3d 89, 94 (2d Cir. 2019) (“Adia alleges that when he was working in South Dakota, Younas recruited him to come work for Grandeur by saying that he would sponsor his H-2B transfer application. This allegation is distinct from the forced labor allegations. The defendants recruited Adia by promising to transfer and sponsor his H-2B visa, then forced him to work for less than he was owed by threatening to revoke that sponsorship. Section 1590 employs the disjunctive ‘or’ in delineating the ways in which a defendant can violate the statute. Therefore, if a defendant violates section 1589, he also violates section 1590 if he recruited the person to perform forced labor. As Adia has plausibly alleged claims for forced labor, he has also plausibly alleged a claim for trafficking based on the allegation related to his recruitment.”); Paguirigan v. Prompt Nursing Emp. Agency LLC, 286 F. Supp. 3d 430, 439 (E.D.N.Y. 2017) (“Plaintiff alleges that she was recruited by defendants Luyun, Philipson, and Sentosa Agency in the Philippines to work in defendants’ nursing home in New York, that she signed an employment contract—signed by defendant Landa—to that effect, and that she eventually worked for defendant Spring Creek as a nursing manager. In combination with her claims alleging violations of 18 U.S.C. § 1589(a), plaintiff has properly stated a claim under § 1590(a) of the TVPA.”) (citations omitted); Baxla v. Chaudhri, 225 F. Supp. 3d 588, 593 (E.D. Va. 2016) (“Plaintiff’s Complaint alleges that Nancy recruited Ms. Baxla by ‘offering to arrange a job in the United States’ for her to perform childcare work. After Ms. Baxla accepted Nancy’s offer, Nancy arranged for Ms. Baxla’s ticket to travel to the United States and travel documents, including a two-year visa. Plaintiff traveled to the United States in 2005, where she met Defendants at the airport. Ms. Baxla had not met or spoken with the Defendants previously. Defendants then transported her from the airport to their home in Virginia, where she lived, other than for two brief periods, from 2005 until 2015. During that time, Ms. Baxla worked for Defendants, providing childcare and housekeeping services, for $350 per month.”) (citations omitted). ↑
. 18 U.S.C. § 1590(a). ↑
. Telephone Interview with Stacie Jonas, supra note 137; see also 18 U.S.C. § 1591 (providing that individuals may be charged with sex trafficking minors without proving “force, threats of force, fraud, [or] coercion”). ↑
. 18 U.S.C. § 1591(a) (“Whoever knowingly—(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).”) (emphasis added). The knowledge requirement is reduced when minors are involved. 18 U.S.C. § 1591(c) (“In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained, maintained, patronized, or solicited, the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years.”) (emphasis added). ↑
. Telephone Interview with Stacie Jonas, supra note 137; see Feehs & Currier, supra note 104, at 20; Farrell et al., supra note 154, at 43. ↑
. Feehs & Richmond, supra note 110, at 14. In some instances, the age of the victim is not publicly available information. Id. ↑
. Currier & Feehs, supra note 2, at 7. ↑
. Feehs & Currier, supra note 104, at 20. ↑
. Feehs & Richmond, supra note 110, at 14. ↑
. Currier & Feehs, supra note 2, at 8. ↑
. Feehs & Currier, supra note 104, at 20. ↑
. Telephone Interview with Stacie Jonas, supra note 137; Currier & Feehs, supra note 2, at 8. ↑
. Feehs & Currier, supra note 104, at 38. ↑
. Id. ↑
. See Farrell et al., supra note 154, at 42–43. ↑
. See id. at 43. ↑
. Telephone Interview with Patricia Medige, supra note 141; Luke Barr, Prosecuting Human Traffickers Poses Significant Challenges, Top Prosecutor Says, ABC 7 News (Aug. 12, 2019), https://abc7news.com/prosecuting-human-traffickers-poses-significant-challenges-top-prosecutor-says/5460249/ [https://perma.cc/29G4-W3ZJ] (“Hilary Axam, a top prosecutor with the Human Trafficking Unit at the Department of Justice, said that it is hard to prove that that the victim was indeed being trafficked against the victim’s will, because it requires getting into the victim’s mind. ‘You have to prove the victim’s state of mind,’ Axam said at a Police Executive Research Forum conference in Washington this week. ‘It’s a heavy burden of proof.’”). ↑
. Desai & Tepfer, supra note 95, at 25; Farrell et al., supra note 154, at 47. ↑
. See Telephone Interview with Susan French, supra note 192. Outcomes of federal prosecutions for sex trafficking of minors tend to be more successful. See, e.g., Feehs & Richmond, supra note 110, at 27–28. For example, in 2017, all defendants charged with sex trafficking exclusively involving minors received higher conviction rates than those charged with other forms of human trafficking. Id. ↑
. Telephone Interview with Susan French, supra note 192. ↑
. E-mail from Elliott Daniels, Assistant U.S. Att’y, Dist. of South Carolina, to author (Dec. 11, 2020) (on file with author). ↑
. See González, supra note 184, at 861. ↑
. See Telephone Interview with Susan French, supra note 192. ↑
. Cf. Daniels, supra note 100, at 186 (arguing that the “government has the ability to drive up federal human trafficking prosecutions when the investment is made”). ↑
. See Farrell et al., supra note 154, at 47. ↑
. See Off. of the Att’y Gen., U.S. Dep’t of Just., FY 2018–2022 Strategic Plan 1 (2018), https://www.justice.gov/jmd/page/file/1071066/download [https://perma.cc/GDZ3-8DR2] (describing DOJ’s strategic goals to: (1) enhance national security and counter the threat of terrorism; (2) secure the borders and enhance immigration enforcement and adjudication; (3) reduce violent crime and promote public safety; and (4) promote rule of law, integrity, and good government). ↑
. But see id. at 16 (including human trafficking in one of DOJ’s strategic goals—reducing violent crime). ↑
. See FY 2019 Budget Request, supra note 256. ↑
. Id.; U.S. Dep’t of Just., General Legal Activities Civil Rights Division (CRT) FY 2018 Budget Request at a Glance, https://www.justice.gov/jmd/page/file/9683
81/download [https://perma.cc/P4J5-739H] [hereinafter FY 2018 Budget Request]; U.S. Dep’t of Just., General Legal Activities Civil Rights Division (CRT) FY 2017 Budget Request at a Glance, https://www.justice.gov/jmd/file/822036/download [https://perma.cc/
3CTK-KSNH] [hereinafter FY 2017 Budget Request] (“The Division aims to protect victims of human trafficking and to prosecute traffickers. It will continue to expand its already successful human trafficking program by coordinating the launch of Phase II of the Anti-Trafficking Coordination Team (ACTeam) Initiative.”); U.S. Dep’t of Just., General Legal Activities Civil Rights Division (CRT) FY 2016 Budget Request at a Glance, https://www.justice.gov/sites/default/files/jmd/pages/attachments/2015/01/30/16_bs_section_ii_chapter_-_crt.pdf [https://perma.cc/3XJ9-C3GS] [hereinafter FY 2016 Budget Request] (“Combating human trafficking is among the highest priorities for the Justice Department. The Division and U.S. Attorneys’ Offices brought 236 human trafficking cases from FY 2011 – FY 2014, compared to 169 in the previous four-year period, a 40% increase.”). ↑
. FY 2019 Budget Request, supra note 256. ↑
. See id. Sexual assault can occur in labor trafficking, but this is more likely a reference to sex trafficking. The CRT releases its own annual performance budget that includes a list of areas for strategic focus. See id. The CRT’s FY 2019 Budget and Performance Congressional Justification generally referred to human trafficking as one of its seven key enforcement areas. Id.; FY 2018 Budget Request, supra note 295; FY 2017 Budget Request, supra note 295 (“The Division aims to protect victims of human trafficking and to prosecute traffickers. It will continue to expand its already successful human trafficking program by coordinating the launch of Phase II of the Anti-Trafficking Coordination Team (ACTeam) Initiative.”); FY 2016 Budget Request, supra note 295 (“Combating human trafficking is among the highest priorities for the Justice Department. The Division and U.S. Attorneys’ Offices brought 236 human trafficking cases from FY 2011 – FY 2014, compared to 169 in the previous four-year period, a 40% increase.”). ↑
. But see U.S. Dep’t of Just., General Legal Activities Civil Rights Division (CRT) FY 2015 Budget Request at a Glance, https://www.justice.gov/sites/default/
files/jmd/legacy/2013/12/17/crt.pdf [https://perma.cc/6KXS-LR5Z] [hereinafter FY 2015 Budget Report] (acknowledging labor trafficking through an effort to “combat human trafficking through a comprehensive enforcement approach focused on all forms of involuntary servitude . . . .”). The priorities of leadership in the district where an Assistant U.S. Attorney (AUSA) practices also heavily influence prosecutors’ exercise of discretion. ↑
. These incentive structures can also impact law enforcement officers’ conduct. See Farrell et al., supra note 154, at 47. Furthermore, when prosecutors decline to proceed with investigated cases, it may discourage them from pursuing labor trafficking in the future. See, e.g., id. ↑
. The conviction rate for labor trafficking defendants was 83.3% (fifteen) in 2019. Feehs & Currier, supra note 104, at 55. Of labor trafficking prosecutions resolved by trial, 80% (eight) of defendants were convicted in 2016, 69.6% (sixteen) in 2017, and 100% (nineteen) in 2018. Id. By comparison, in 2019, sex trafficking defendant prosecution rates ranged between 93.7% (163) and 96.2% (126), depending on the age of the victims. Id. ↑
. See, e.g., U.S. Dep’t of Just., Budget and Performance, https://www.justice.gov/doj/budget-and-performance [https://perma.cc/6N73-NS9P] (providing an example of online annual reports and plans). ↑
. Id.; see also U.S. Comm’n on Civil Rights, supra note 102, at 81. ↑
. U.S. Dep’t of Just. Off. of the Att’y Gen., FY 2017 Annual Performance Report and FY 2019 Annual Performance Plan 27–28 (2018). ↑
. See U.S. Dep’t of Just., FY 2018 Annual Performance Report / FY 2020 Annual Performance Plan 33–35, 51 (2019). Instead, it added specific objectives and measures regarding “ensuring . . . the integrity of our immigration system,” and the First Amendment and religious liberty, among others. See id. ↑
. U.S. Comm’n on Civil Rights, supra note 102, at 80. ↑
. Id. at 78. ↑
. Law enforcement agencies can also struggle with insufficient resources. See, e.g., Farrell et al., supra note 154, at 45. ↑
. For example, in some cases, victims do not want to participate in a criminal prosecution but would have to do so for their trafficker to be convicted. Kate D’Adamo, Prioritising Prosecutions is the Wrong Approach, Anti-Trafficking Rev., May 2016, at 111, 112. ↑
. Aspects of this topic were the subject of a debate on the utility of prosecution published by the Anti-Trafficking Review. See generally Anne T Gallagher, Editorial: The Problems and Prospects of Trafficking Prosecutions: Ending Impunity and Securing Justice, Anti-Trafficking Rev., May 2016, at 1, 9–10. ↑
. D’Adamo, supra note 308, at 111–13. ↑
. Evelyn McCoy et al., Urb. Inst., Delivering Justice for Human Trafficking Survivors: Implications for Practice 3, 6 (2018). The authors of this study note that its results are limited because data was collected only in metropolitan areas from survivors who accessed services and remained in touch with providers. Id. at 19. Further, the results are skewed toward victims of labor trafficking over victims of sex trafficking. Id. ↑
. Id. at 6. ↑
. Id. A potentially complementary model, the Survivor-Led Justice Inquiry Tool, created by attorney and consultant Lisa Palumbo, is designed to assist advocates to develop plans based on survivors’ justice goals. Id. at 17–18. The advocate first advises the survivor about the possible types of justice that may be available (e.g., reuniting with family, being paid unpaid wages, reporting to law enforcement, or getting passport returned) and then, the survivor selects their particular goals and designates their order or priority. Id. at 18. Palumbo recommends the tool be revisited periodically to assess progress and address evolving priorities. Id. ↑
. See Henry Wu & Alexandra Yelderman, Hum. Trafficking Legal Ctr., Prosecution at Any Cost?: The Impact of Material Witness Warrants in Federal Human Trafficking Cases 8–16 (2020) (discussing addiction, homelessness, distrust of law enforcement, trauma, intimidation and witness tampering, and victim bonding to the trafficker as reasons victims may be unable or unwilling to testify). ↑
. Id. at 4. The vast majority of the cases identified over approximately eleven years involved sex trafficking, see id., but the same principles and concerns apply to labor trafficking. ↑
. See id. at 25–26. (detailing the many reasons why it is inappropriate to arrest and detain trafficking victims in this context). ↑
. Episode 54: At What Cost to Victims Should Traffickers Be Brought to Justice and Are For-Profit Prisons Engaged in Labor Trafficking?, Celia, at 8:36 (July 21, 2020) (telephone Interview by Celia Williamson with Sarah Bessell, Deputy Director, Human Trafficking Legal Center on Emancipation Nation), https://celiawilliamson.com/episodes/episode-54-atwhat-cost-to-victims-should-traffickers-be-brought-to-justice-and-are-for-profit-prisons-engaged-in-labor-trafficking-?rq=sarah%20bessell [https://perma.cc/24YN-FCX7]. ↑
. Lyndsey P. Beutin, Criminalising Traffickers Is an Alibi for State-Produced Vulnerability, Open Democracy (Nov. 19, 2015), https://www.opendemocracy.net/en/beyond
-trafficking-and-slavery/criminalising-traffickers-is-alibi-for-state-produced-vulnerability/ [https://perma.cc/99TX-7QXW] (“Turning structural violence and exclusion into the sadistic tendencies of a villain becomes the state’s ultimate alibi. Even though the state creates the conditions necessary for precarious and exploitable migrant labour, the discourse of enslavement allows the state to present its carceral solutions—putting ‘bad’ people in prison—as ‘abolition.’”); see also Inga Thiemann, Villains and Victims, but No Workers: Why a Prosecution-Focused Approach to Human Trafficking Fails Trafficked Persons, Anti-Trafficking Rev., May 2016, at 126, 126–129; Swenstein & Mogulescu, supra note 16, at 120 ↑
. S. Poverty L. Ctr., Close To Slavery: Guestworker Programs in the United States 14 (2013) (“The most fundamental problem with guestworker programs, both historically and currently, is that the employer—not the worker—decides whether a worker can come to the United States and whether he can stay. Because of this arrangement, the balance of power between employer and worker is skewed so disproportionately in favor of the employer that, for all practical purposes, the worker’s rights are nullified. At any moment, the employer can fire the worker, call the government and declare the worker to be ‘illegal.’”); see also Smith, supra note 181, at 380 (discussing the increased vulnerability of guestworkers due to the growing use and enforcement of arbitration clauses). ↑
. Smith, supra note 181, at 380. ↑
. See Smith et al., supra note 184, at 11. ↑
. See id. at 6, 28. ↑
. See, e.g., Off. of Inspector Gen., Dep’t of Homeland Sec., OIG–20–38, Capping Report: CBP Struggled to Provide Adequate Detention Conditions During 2019 Migrant Surge 2 (2020); UN Rights Chief ‘Appalled’ by US Border Detention Conditions, Says Holding Migrant Children May Violate International Law, UN News (July 8, 2019), https://news.un.org/en/story/2019/07/1041991 [https://perma.cc/3EKW-UDYR]; Ilana Panich-Linsman, Hungry, Scared and Sick: Inside the Migrant Detention Center in Clint, Tex., N.Y. Times (July 9, 2019), https://www.nytimes.com/interactive/2019/07/06/us/migrants-border-patrol-clint.html [https://perma.cc/GTB9-WXWT]. ↑
. E.g., D’Adamo, supra note 308, at 112 (citing “poverty, housing and food instability, lack of education, labour exploitation, discrimination[,] and/or domestic violence” as risks of exploitation); see Swenstein & Mogulescu, supra note 16, at 121 (arguing that trafficking is a more complex situation that is, in part, tied to the prevalence of poverty and other societal ills); Jordan Blair Woods, Unaccompanied Youth and Private-Public Order Failures, 103 Iowa L. Rev. 1639, 1652–56 (2018). ↑
. D’Adamo, supra note 308, at 111–13. ↑
. See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) (describing, discussing, explaining, and showing empirically the disproportionate and unjustified abuses of Black people in the criminal justice system). ↑
. See Swenstein & Mogulescu, supra note 16, at 122. ↑
. French & Liou, supra note 259, at 115 (recommending that prosecutors direct limited resources for human trafficking prosecutions to cases that are likely to impact a large number of former, current, and future victims or that will extend the reach of the law); Marika McAdam, Not All Prosecutions Are Created Equal: Less Counting Prosecutions, More Making Prosecutions Count, Anti-Trafficking Rev., May 2016, at 123, 124 (arguing that the goals of prevention and protection can be achieved, at least in part, through selective prosecution—for example, by targeting human trafficking operations through prosecution for whatever crimes will most effectively disrupt the trafficking). ↑
. Daniels, supra note 100, at 176–77 (listing DOJ infrastructure, global law enforcement networks, access to subject matter expertise, and jurisdictional reach as reasons why the DOJ has a special obligation to investigate and prosecute human trafficking cases). While prosecutors have wide discretion, it is a constitutional mandate to faithfully execute laws passed by Congress, including the TVPRA. See U.S. Const. art. II, § 3. ↑
. Little Hoover Comm’n, supra note 87, at 13; U.S. Comm’n on C.R., supra note 102, at 80. ↑
. Restitution is mandatory under the TVPA. 18 U.S.C. § 1593(a). However, it is not always sought or awarded. See Levy, supra note 56, at 15. ↑
. Telephone Interview with Gonzalo Martinez de Vedia, Program Manager, Buffett-McCain Inst. Initiative to Combat Mod. Slavery (Feb. 18, 2020); Daniels, supra note 100, at 183. ↑
. Martina E. Vandenberg, Palermo’s Promise: Victims’ Rights and Human Trafficking, Anti-Trafficking Rev., May 2016, at 138, 139–40. ↑
. French & Liou, supra note 259, at 114 ↑
. See Daniels, supra note 100, at 184. ↑
. See id. Victor Boutros & John Cotton Richmond, Investments in Human Trafficking Prosecutions Are Indispensable, Anti-Trafficking Rev., May 2016, at 107, 108. Furthermore, the threat of being caught and punished can deter crime in some instances. Nat’l Inst. of Just., U.S. Dep’t of Just., NCJ 247350, Five things About Deterrence 2 (2016). Of course, prosecutions are not without risk; if well-publicized labor trafficking prosecutions are brought and yet fail, this also risks empowering would-be traffickers. ↑
. Those who criminally exploit workers include employers as well as those who work on their behalf, such as labor recruiters, staffing agencies, crew leaders, and others. ↑
. This Article does not argue for the transfer of resources from the investigation and prosecution of sex trafficking to labor trafficking. Instead, it recommends that resources be rededicated from policing less serious crimes. ↑
. There are already efforts to support shifting and decriminalizing some of this conduct, including the use of drug and mental health courts. See, e.g., Mental Health Among Drug Court Participants in Drug Treatment, Practical Recovery, https://www.practicalrecovery.com/mental-health-among-drug-court-participants-in-drug-treat
ment/ [https://perma.cc/35TK-H36A]; Lilja Gong, Pub. Rts. Project, Growing an Equitable Enforcement Practice: A Guide for Local Prosecutors to Fight Corporate Abuse 6 (2019), https://drive.google.com/file/d/14g1Xv7DoBCKSIsqFcxwAy1c8
pHJVyCxh/view [https://perma.cc/V5TA-ZPJJ]. While a change in focus would not resolve concerns about policing, it would, at a bare minimum, reduce the number of those targeted. ↑
. Despite this, there are certainly federal law enforcement officers and DOJ attorneys committed to combating labor trafficking; some are cited in this Article, and their experiences and insights provide the basis for a number of the recommended reforms discussed in Section VI.B. ↑
. Some states are also making efforts to better address labor trafficking. See, e.g., Jake Thomas, New Task Force Examines Overlooked Issue of Labor Trafficking in Oregon, Salem Rep. (Jan. 10, 2020), https://www.salemreporter.com/posts/1718/new-task-force-looks-into-underlooked-issue-of-labor-trafficking-in-oregon [https://perma.cc/9VQJ-QPE7]. ↑
. U.S. Dep’t of Just., National Strategy to Combat Human Trafficking 6 (2017), https://www.justice.gov/humantrafficking/page/file/922791/download [https://perma.cc
/69GT-2C6W]. ↑
. Human Trafficking Prosecution Unit, U.S. Dep’t of Just., https://www.justice.gov/crt/human-trafficking-prosecution-unit-htpu [https://perma.cc/C5Y5-XWZA]; Department of Justice Components, U.S. Dep’t of Just., https://www.justice.gov/humantrafficking/department-justice-components [https://perma.cc/3B
QT-JXH9] [hereinafter Justice Components]. AUSAs are required to provide written notice to the CRT when they begin investigating human trafficking crimes and before indictment. U.S. Dep’t of Just., Justice Manual §§ 8–3.120, 3.140, https://www.justice.gov/jm/jm-8-2000-enforcement-civil-rights-civil-statutes [https://perma.cc/RM8H-PKNP] (setting out “Enforcement of Civil Rights Criminal Statutes”). ↑
. U.S. Dep’t of Just., Anti-Trafficking Coordination Team (ACTeam) Initiative Fact Sheet 1 (2015). ↑
. Id. ↑
. Blue Campaign, Labor Trafficking Awareness Videos, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/blue-campaign/videos/labor-trafficking [https://perma.cc/7SQJ-M3VS]. ↑
. Blue Campaign, What Can You Do?: Identifying Victims and Reporting Suspected Cases of Human Trafficking, https://www.dhs.gov/sites/default/files/publica
tions/blue-campaign/materials/pamphlet-victim-id-law-responders-healthcare/bc-pamphlet-vict
im-id-law-english.pdf [https://perma.cc/7V69-TBDM]. ↑
. Blue Campaign, A Victim-Centered Approach, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/blue-campaign/victim-centered-approach [https://perma.cc/ZD6U-NQU
2]. ↑
. Blue Campaign, Immigration Assistance for Non-U.S. Citizen Victims, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/blue-campaign/immigration-assistance [https://perma.
cc/W3F2-74VN ]. ↑
. 2018 Report, supra note 97, at 444. ↑
. Desai & Tepfer, supra note 95, at 29 (recommending an augmentation of existing outreach efforts to communities, including tribal, refugee, LGBTQ, and other communities). ↑
. Mollie Halpern & Ryan Blay, FBI, This Week: FBI Launches New Labor Trafficking Initiative, FBI (Feb. 3, 2017), https://www.fbi.gov/audio-repository/ftw-podcast-labor-trafficking-020317.mp3/view [https://perma.cc/VN6V-C4QJ]. ↑
. Id.; President’s Interagency Task Force, Report on U.S. Governments Efforts to Combat Trafficking in Persons 26 (2017), https://www.state.gov/wp-content/uploads/2018/12/report_usg_tip_efforts.pdf [https://perma.cc/45PY-YPCL]. ↑
. Justice Components, supra note 343. ↑
. Sheldon Zhang et al., Labor Trafficking in North Carolina: A Statewide Survey Using Multistage Sampling (2018), https://www.ncjrs.gov/pdffiles1/nij/grants/252
521.pdf [https://perma.cc/BZ8V-UZ65]; Detailed Information for Award 2013-IJ-CX-0047, Nat’l Inst. of Just., https://external.ojp.usdoj.gov/selector/awardDetail?awardNumber=2013
-IJ-CX-0047&fiscalYear=2013&applicationNumber=2013-91795-CAIJ&programOffice=NIJ
&po=NIJ [https://perma.cc/W9PM-7QPZ]. ↑
. Owens et al., supra note 68. ↑
. Zhang, supra note 44. ↑
. U.S. Dep’t of Just., NIJ-2020-17324, Research and Evaluation on Trafficking in Persons, Fiscal Year 2020, at 5 (2020), https://nij.ojp.gov/sites/g/files/xyckuh171/files/media/document/NIJ-2020-17324.pdf [https://
perma.cc/BLF4-8ZV7]. ↑
. Id. ↑
. Effective Strategies to Investigate & Prosecute Labor Trafficking in the U.S., Int’l Ass’n of Chiefs of Police, https://www.myiacp.org/event-information?id=a0l1I00000O65e6QAB [https://perma.cc/KA9Y-BFST]. The training was offered in collaboration with the International Association of Chiefs of Police and AEquitas. Id. ↑
. Human Trafficking, Off. for Victims of Crime Training & Tech. Assistance Ctr., https://www.ovcttac.gov/views/HowWeCanHelp/dspHumanTrafficking.cfm [https://per
ma.cc/Q6L3-9L9L]. ↑
. Labor Trafficking: Improving Victim Identification, Off. for Victims of Crime Training & Tech. Assistance Ctr. (Nov. 14, 2017), https://www.ovcttac.gov/ovcttac_
assets/eblast/November%20HT%20Joint%20Webinar_508c_12.7.17_KH.pdf [https://perma.
cc/6KQV-HA8N]. ↑
. Continuum of Labor Exploitation: Wage Theft, Fraud in Foreign Labor Contracting and Human Trafficking, Off. for Victims of Crime Training & Tech. Assistance Ctr. (Apr. 21, 2016), https://www.ovcttac.gov/downloads/Trafficking/files/AprilOVCTAWebinar_
508c_042816_DM.pdf [https://perma.cc/V3C6-8UJ6]. ↑
. Labor Trafficking–Research to Practice, Off. for Victims of Crime Training & Tech. Assistance Ctr. (Nov. 19, 2015), https://www.ovcttac.gov/downloads/Trafficking/
files/LaborTraffickingPPT_508c_112015_CN.pdf [https://perma.cc/3ZNM-ES2L]. ↑
. Faces of Human Trafficking Video 3: An Introduction to Labor Trafficking, Off. for Victims of Crime (Dec. 1, 2015), https://ovc.ojp.gov/media/video/3581 [https://perma.cc/F4
EP-VEP7]. ↑
. Human Trafficking: Grants & Funding, Off. for Victims of Crime, https://ovc.ojp.gov/program/human-trafficking/grants-funding [https://perma.cc/Y2YE-Z58T].
Some of the most recent grants were specifically focused on labor trafficking, including one to Metropolitan Family Services in Illinois to “develop innovative solutions to address barriers to identifying and assisting labor trafficking victims.” Matrix of OVC/BJA-Funded Human Trafficking Services Grantees and Task Forces, Off. for Victims of Crime, https://ovc.ojp.gov/matrix-ovcbja-funded-human-trafficking-services-grantees-and-task-forces [https://perma.cc/5R46-J67E]. ↑
. In Texas, funding from the Buffett-McCain Institute Initiative to Combat Modern Slavery supported creation of a Human Trafficking Unit in Hidalgo County in 2019. DA Focuses on Human Trafficking in Agriculture, Valley Bus. Rep., https://valleybusinessreport.com/
industry/agriculture/da-focuses-on-human-trafficking-in-agriculture/ [https://perma.cc/S2DN-2R8H]. The unit focuses primarily on labor trafficking in agriculture and includes a Labor Trafficking Specialty Prosecutor, a Labor Trafficking Specialty Investigator, and a Human Trafficking Taskforce Coordinator. Id. ↑
. See supra Section V for a discussion of how to best reallocate law enforcement and prosecution resources. ↑
. E.g., Nat’l Immigr. Just. Ctr., A Legacy of Injustice: The U.S. Criminalization of Migration 3 (2020), https://immigrantjustice.org/sites/default/files/
uploaded-files/no-content-type/2020-07/NIJC-Legacy-of-Injustice-report_2020-07-22_FINA
L.pdf [https://perma.cc/ZMN6-R2KT] (discussing defunding the prosecution of migration-related criminal charges). ↑
. Telephone Interview with Susan French, supra note 192. ↑
. See McAdam, supra note 328, at 123–24. ↑
. See Vandenberg supra note 333, at 138. ↑
. Desai & Tepfer, supra note 95, at 29 (recommending training “those investigating or prosecuting gangs, organized crime, drug trafficking, healthcare fraud, environmental crimes, Indian country cases, and national security and financial crimes . . . Law Enforcement Coordinating Committee Chiefs (LECCs), Community Outreach Specialists, Victim-Witness Coordinators, etc.”). ↑
. For example, as an attorney, human trafficking consultant, and former fellow for the DOJ’s Office for Victims of Crime, Erin Albright advocates for a new model to address labor trafficking and offers training to law enforcement agencies and others in how to apply her “New Framework.” A New Framework: Re-imagining Labor Trafficking Responses, New Frameworks, https://newframeworks.org/labor-trafficking [https://perma.cc/2DJF-KQ6D] (the framework includes four steps: (1) narrow down the universe using data and research; (2) understand conditions and context of industry; (3) new, strategic, and nontraditional partnerships; and understand coercion). ↑
. In particular, law enforcement should understand the role of psychological coercion and how traffickers use fear of law enforcement and deportation to control their victims. Owens et al., supra note 68, at 89, 209. ↑
. See id. at 205; Farrell et al., supra note 218, at 115. ↑
. See, e.g., Farrell et al., supra note 154, at 50–51 (describing victim-centered approaches to investigation); 2020 Report, supra note 99, at 516–18; Farrell et al., supra note 218, at 115; Telephone Interview with Susan French, supra note 192; E-mail from Elliott Daniels, Assistant U.S. Att’y, Dist. of South Carolina, to author (Dec. 11, 2020) (on file with author). ↑
. Farrell et al., supra note 218, at 115. ↑
. A failure to understand trauma may result in an officer not believing trafficked individuals because there are inconsistencies in the information they provide. See id. at 218. A lack of knowledge about use of interpreters, for example, may mean that the officer permits an individual who is connected to the labor trafficking to serve as an interpreter and either intimidate the victim or purposefully misinterpret information provided. See, e.g., Farrell et al., supra note 154, at 50–51 (describing victim-centered approaches to investigation). ↑
. See Julie Dahlstrom, Labor Trafficking Is a Crime You Probably Don’t Notice, WBUR (Oct. 29, 2019), https://www.wbur.org/cognoscenti/2019/10/29/massachusetts-human-labor-trafficking-julie-dahlstrom [https://perma.cc/9ELD-VKHR]. ↑
. Id. ↑
. The tool is available online. Recognize and Evaluate Signs to Uncover Labor Trafficking, RESULT, http://www.traffickingresult.com [https://perma.cc/62WG-5HE3]. The assessment provides questions that relate to Massachusetts’s Crime of Trafficking in Persons for Forced Services. Massachusetts Law, RESULT, http://www.traffickingresult.com/statute [https://perma.cc/J258-6NG7]. Labor trafficking indicators to be examined are serious harm, physical restraint, abuse of the law, identity documents, extortion, and financial harm. Id. ↑
. Prepare, Result, http://www.traffickingresult.com/prepare [https://perma.cc/AU4S
-2FZW]. ↑
. The majority of states also have laws proscribing labor trafficking. Unif. Prevention of and Remedies for Hum. Trafficking § 4 cmt. (Unif. L. Comm’n 2013); see also Marley S. Weiss, Human Trafficking and Forced Labor: A Primer, 31 A.B.A. J. Lab. & Emp. L. 1, 41 (2015). ↑
. Toolkit: Child Sex Trafficking: A Training Series for Frontline Officers, Int’l Ass’n of Chiefs of Police (Jan. 1, 2015), https://www.theiacp.org/resources/document/toolkit-child-sex-trafficking-a-training-series-for-frontline-officers [https://perma.cc/SEG5-6Q8K]. ↑
. The Crime of Human Trafficking: Roll-Call Training Video, Int’l Ass’n of Chiefs of Police (Sept. 16, 2015), https://www.theiacp.org/resources/video/the-crime-of-human-trafficking-roll-call-training-video [https://perma.cc/8PZJ-4XZN] (providing a training video on recognizing human trafficking in general). ↑
. Telephone Interview with Patricia Medige, supra note 141. ↑
. Id. ↑
. See discussion infra Section VI.B.3–5. Training materials on these strategies are already available to law enforcement. See, e.g., Developing Your Labor Trafficking Threat Assessment, Just. Clearing House (Mar. 12, 2018), https://justiceclearinghouse.com/resource
/developing-your-labor-trafficking-threat-assessment/ [https://perma.cc/AEW3-EDXP]. ↑
. Telephone Interview with Patricia Medige, supra note 141. ↑
. Owens et al., supra note 68, at 209–10. ↑
. Farrell et al., supra note 154, at 39. ↑
. Id. at 54. ↑
. Telephone Interview with Gonzalo Martinez de Vedia, supra note 332. A better fit than vice might be officers skilled in addressing economic crimes. Telephone Interview with Patricia Medige, supra note 141. ↑
. Desai & Tepfer, supra note 95, at 26. As part of a pilot effort to decrease labor trafficking in Texas, the Buffett-McCain Institute Initiative to Combat Modern Slavery is conducting mapping using wage and hour compliance data, H-2A job orders, and other information. Telephone Interview with Gonzalo Martinez de Vedia, supra note 332. ↑
. Desai & Tepfer, supra note 95, at 26. ↑
. Id. ↑
. Smith, supra note 181, at 385–92 (describing the profound vulnerability of low-wage guestworkers). ↑
. Desai & Tepfer, supra note 95, at 28–29. ↑
. Id. at 28. ↑
. Id. at 26–27 (recommending partnerships with the DOL’s Office of the Inspector General, Wage and Hour Division, and Occupational Safety and Health Administration; the U.S. State Department’s Diplomatic Security Service and U.S. Citizenship and Immigration Services; the U.S. Department of Agriculture’s Office of Inspector General; and the EEOC). ↑
. Id. at 27 (recommending communication with and training of the many state and local agencies that regulate and enter workplaces, including labor regulators, fire marshals, health or code inspectors, first responders, emergency healthcare providers, and those that investigate fraud and theft related to public benefits). ↑
. Id. at 26–27; Farrell et al., supra note 154, at 53–54; Telephone Interview with Susan French, supra note 192 (explaining the critical role of having established relationships with community organizations on the ground and in different labor sectors); Telephone Interview with Stacie Jonas, supra note 137. But see Farrell et al., supra note 154, at 47 (noting that agencies are not all equipped or willing to partner with law enforcement); Gong, supra note 339, at 6, 22 (discussing reasons for prosecutors to partner with community-based organizations). ↑
. Desai & Tepfer, supra note 95, at 27; see also Farrell et al., supra note 154, at 53. ↑
. Farrell et al., supra note 154, at 53. For partnerships to be effective, efforts must be made to maintain continuity; this can be difficult when there is turnover in personnel. Telephone Interview with Susan French, supra note 192. ↑
. See Desai & Tepfer, supra note 95, at 27. ↑
. Id. at 30. ↑
. Id. The Buffett-McCain Institute Initiative to Combat Modern Slavery has experimented with a data driven approach. It analyzed publicly available data to identify high-risk zones for Texas farmworkers. Little Hoover Comm’n, supra note 87, at 14. ↑
. Desai & Tepfer, supra note 95, at 27; Little Hoover Comm’n, supra note 87, at 13–14. ↑
. Farrell et al., supra note 218, at 115. ↑
. See id. ↑
. The need for proactive investigations is underscored by the findings of a 2018 study of labor trafficking arrests between 2013 and 2016. Roe-Sepowitz et al., supra note 44, at 19 (“Most often, police identified a trafficking situation reactively, when they arrested a trafficker as a result of an investigation for other activity (n=46, 36.8%), police found the victim in an immigration (ICE) sting/sweep (n = 31, 24.8%), and the victim contacted the police to turn their trafficker in (n = 16, 12.8%). Other times, police received an anonymous call (n = 12, 9.6%), did a sting (n = 6, 4.8%), police found a suspected ad online (n = 3, 2.4%), a person in a position of authority to the victim contacted the police (n = 2, 1.6%), or someone else called the police about the situation (n = 2, 1.6%).”). ↑
. Owens et al., supra note 68, at vii (analyzing the experiences of survivors based on “122 closed labor trafficking victim service records from service providers in four US cities” as well as interviews with survivors, advocates, service providers, and law enforcement personnel). ↑
. See, e.g., Alexandra Levy, Hum. Trafficking Legal Ctr., Fact Sheet: Human Trafficking & Forced Labor in For-Profit Detention Facilities 3 (2018), https://www.htlegalcenter.org/wp-content/uploads/Human-Trafficking-Forced-Labor-in-For-Pr
ofit-Detention-Facilities.pdf [https://perma.cc/CL72-JD2X] (examining federal civil lawsuits alleging labor trafficking in facilities that are part of the U.S. penal system). ↑
. Gnaedig et al., supra note 175, at 3, 19. ↑
. Id. at 8. ↑
. Id. at 10. ↑
. Id. at 18. ↑
. Id. at 19. ↑
. Id. ↑
. Polaris, The Typology of Modern Slavery: Defining Sex and Labor Trafficking in the United States 5 (2017), https://polarisproject.org/wp-content/uploads/
2019/09/Polaris-Typology-of-Modern-Slavery-1.pdf [https://perma.cc/Z2ZG-XT8B]. This report includes cases reported via text to its BeFree “textline.” Id. ↑
. Id. at 3, 8. ↑
. See id. at 6. ↑
. Id. ↑
. See McCoy et al., supra note 311, at 6. ↑
. While these recommendations were primarily from sex trafficking survivors, it is likely they would also apply to many of those who have experienced labor trafficking. Id. at 6–7. ↑
. Id. at 6. ↑
. Id. at 8. ↑
. Id. at 8, 13. ↑
. Id. at 12–13. ↑
. E.g., González, supra note 184, at 860–62. ↑
. See Farrell et al., supra note 154, at 49. The Human Trafficking Legal Center recommends appointing an attorney to serve as victim-witness counsel in human trafficking cases as another way to ensure victims’ needs are addressed during prosecution. Wu & Yelderman, supra note 314, at 6. ↑
. See González, supra note 184, at 857–58, 867–68. ↑
. Telephone Interview with Susan French, supra note 192. DHS issued Continued Presence to a total of only 125 human trafficking victims in 2019. 2020 Report, supra note 99, at 518. ↑
. See 2020 Report, supra note 99, at 518. ↑
. See U.S. Immigr. & Customs Enf’t, supra note 244. ↑
. Telephone Interview with Susan French, supra note 192. ↑
. Civil lawsuits under the TVPA can be stayed pending a criminal prosecution. 18 U.S.C. § 1595(b)(1). ↑
. P. David Lopez & Stephanie Goulston-Madison, Employment Discrimination Law: A Model for Enforcing the Civil Rights of Trafficking Victims, in Human Trafficking Reconsidered: Rethinking the Problem, Envisioning New Solutions 69, 77 (Kimberly Kay Hoang & Rhacel Salazar Parreñas eds., 2014). ↑
. EEOC Combats Human Labor Trafficking, U.S. Equal Opportunity Emp. Comm’n, https://www.eeoc.gov/eeoc-combats-human-labor-trafficking [https://perma.cc/XN
9L-CZFS]. ↑
. E.g., EEOC Opens “New Frontier” in War Against Human Labor Trafficking, U.S. Equal Emp. Opportunity Comm’n (2014), https://www.eeoc.gov/laws/guidance/eeoc-opens-new-frontier-war-against-human-labor-trafficking#:~:text=EEOC%20Opens%20“New [https://
perma.cc/LDP2-EXYY]. ↑
. Lopez & Goulston-Madison, supra note 439, at 74–76 (discussing Chellen v. John Pickle Co., 446 F. Supp. 2d 1247 (N.D. Okla. 2006); EEOC v. Trans Bay Steel, No. 06-cv-07766, 2006 WL 4545990, at *1 (C.D. Cal. Dec. 7, 2006); and EEOC v. Hill Country Farms, Inc., 899 F. Supp. 2d 827 (S.D. Iowa 2012)). ↑
. See Jennifer J. Lee, Private Civil Remedies: A Viable Tool for Guest Worker Empowerment, 46 Loy. L.A. L. Rev. 31, 50–56 (2012). ↑
. Lopez & Goulston-Madison, supra note 439, at 69. ↑
. Telephone Interview with Stacie Jonas, supra note 137. ↑
. Farrell et al., supra note 154, at 49–50. ↑
. Id. ↑
. There has already been some modest experimentation with this approach. In 2016, an agreement between the DOL and DOJ allowed the DOL’s Office of Inspector General to investigate labor trafficking related to programs that the agency administers. 2018 Report, supra note, 97 at 444. ↑
. See Desai & Tepfer, supra note 95, at 25–26. ↑
. Amy Farrell et al., Urb. Inst., Identifying Challenges to Improve the Investigation and Prosecution of State and Local Human Trafficking Cases 2 (2012), https://www.urban.org/sites/default/files/publication/25526/412593-Identifying-Challenges-to-Improve-the-Investigation-and-Prosecution-of-State-and-Local-Human-Trafficking-Cases.PDF [https://perma.cc/7V2V-J6T9]. ↑
. Id. at 4. ↑
. See id. at 234–35. ↑
. See id. at 4. ↑
. For example, as of June 2020, the prosecutor’s Labor Trafficking Unit in Alameda County, California, is handling nineteen cases and has successfully resolved another thirteen. Little Hoover Comm’n, supra note 87, at 17. Other states are not as active but do periodically prosecute labor trafficking. E.g., Gregory Yee, Majority of South Carolina Human Trafficking Cases Involved Victims Under 18 Years Old, Report Shows, Post and Courier (Jan. 6, 2017), https://www.postandcourier.com/news/majority-of-south-carolina-human-trafficking-cases-involved-victims-under-18-years-old-report-shows/article_a890a97a-d387-11e6-845a-9b18c
909cbd1.html [https://perma.cc/GH5E-WGDN]. A criminal case involving rape and labor trafficking of a restaurant employee by the restaurant’s owner is underway in Arkansas. Order of Continuance & Tolling of Speedy Trial, State v. Chen, No. 16JCR-18-168 (Cir. Ct. Craighead Cnty., Ark., 2020). In Minnesota, a construction contractor was charged and pleaded guilty to labor trafficking in 2019. Riham Feshir, Hennepin County’s First Labor-Trafficking Case Ends in Guilty Plea, MPR News (Nov. 19, 2019), https://www.mprnews.org/story/2019/11/18/contractor-ricardo-batres-pleads-guilty-in-rare-lab
or-trafficking-case [https://perma.cc/JZV9-C9FN]. ↑
. Telephone Interview with Stacie Jonas, supra note 137. ↑