S.J. Quinney College of Law

by Katherine Bushman

Human trafficking is both an international and domestic problem but cries out for state and local attention. Because the United States is one of the most frequent destinations for international trafficking[1] and trafficking is most noticeable at local levels, local law enforcement agencies play a crucial role in identifying and protecting international trafficking victims. Although steps have been taken at the federal level to promote training of local law enforcement officers about victim identification and protection, it is certain that many victims are misidentified as criminals during investigations rather than as victims of a pervasive international criminal scheme.

In 2000, the United States professed its commitment to combating human trafficking by enacting the Trafficking Victims Protection Act (TVPA). The scheme of the Act includes provisions to prevent trafficking, punish traffickers and protect the victims of trafficking. It has been updated several times to establish more rights for victims, new prevention strategies, and grant programs to help state and local governments address trafficking.[2] The TVPA encourages state participation in combating trafficking through these grant programs and promotes the establishment and strengthening of programs “to educate and train law enforcement personnel in how to establish trust of persons subjected to trafficking and encourage cooperation with prosecution efforts.”[3]

Despite the federal government’s effort to promote increased training for local law enforcement officers, victim identification remains difficult in part because many victims are not nationals of the United States. Local law enforcement may look past what it perceives to be a federally pre-empted immigration issue[4] in order to charge an individual under a local criminal statute and avoid a conflict with federal law.[5] What compounds this difficulty is that, in some cities, local law enforcement practice is to avoid inquiring about an individual’s immigration status unless she is arrested.[6] Assuming that an officer did inquire about an arrestee’s immigration status, the inquiry still might end at that point without any further investigation into a possible underlying trafficking scheme.

For an illustrative hypothetical, imagine that a local officer has arrested a woman for soliciting sex. This woman has an accent. Some law enforcement officers would be instructed to avoid the immigration question and attempt to investigate the criminal activity (prostitution) as narrowly as possible in order to avoid clashing with federal law. To sidestep the immigration question, the officer is not likely to ask questions pertaining to the woman’s background or inquire any further than to establish that she has committed a criminal act.[7] Because she has been arrested for committing a crime, has experienced corrupt police behavior in her home country, and has been threatened by her trafficker to remain silent about the scheme, the woman is unlikely to volunteer information to the officer that would suggest that she is a victim. Under these circumstances, it is not hard to understand why international trafficking rings often remain undetected.

Part of the federal government’s solution to this problem is educating “law enforcement personnel in how to establish trust” of trafficking victims. Even when officers attempt to identify trafficking victims, victims “are often reluctant to identify themselves as victims” due to the intimidation and coercion they have experienced.[8] The trust of trafficking victims, therefore, is difficult to earn, so the federal policy suggests that local law enforcement agencies should constantly strive to maintain a trustworthy reputation, particularly within diverse communities where misidentification of victims seems likely. For an example of an enforcement scheme that cannot work effectively to identify victims of trafficking, Arizona stands out.

In Maricopa County, Sheriff Joe Arpaio has strongly advocated an anti-illegal immigration platform since the mid-2000s, to the detriment of U.S. and international efforts to prevent trafficking, protect victims and to punish traffickers.[9] The result is that the MCSD has garnered a reputation for being tough on crime and even tougher on immigrants, regardless of their citizenship status. In addition, Arizona is a state with comparatively mediocre state-enacted human trafficking laws and, because it borders a country with some corrupt law enforcement agencies and a great deal of poverty, it is at an increased risk of experiencing international human trafficking than other states.[10]

Over the summer of 2013, the MCSD initiated its 74th worksite immigration raid in Phoenix. Because Sheriff Arpaio has claimed support for these raids under Arizona’s laws against identity theft and fraud, and immigration is technically a federally pre-empted category, his department’s focus is on arresting individuals who are perceived to be immigrants in violation of criminal statutes, while these individuals may very well be victims of trafficking and forced labor.[11] These arrestees, if they are not legally present in the United States, are non-bondable and can expect to spend time in Arpaio’s uncooled and unheated “Tent City” jail, where the summer temperature has been documented as high as 145 degrees Fahrenheit.[12] In addition to the Maricopa County Sheriff Department’s non-prioritization of the investigation of human trafficking, the department has been at the front of media attention for numerous other shocking investigative methods such as racial profiling under Arizona’s “show me your papers” law.[13]

The MCSD is a good example of why Congress has encouraged the expansion of training on trafficking investigation and victim protection. In Arpaio’s 74 raids, certainly some victims of forced labor have been misidentified and treated as criminals rather than victims.  When reviewing a survey of state trafficking laws, it is evident that there may be a connection between Arizona’s non-prioritization of trafficking laws and the investigative methods of the MCSD.[14]

What, then, are some helpful measures for victim identification at the state and local level? One scholar suggests that law enforcement training should include training about the overlapping nature of immigration and international human trafficking and that procedures and policies should be tailored accordingly.[15] Because identification failure can occur when law enforcement perceives an immigration issue during employer raids, this training would ideally include procedural guidance for conducting such raids where potential victims would be removed from their threatening environment and “be interviewed in a non-confrontational setting” rather than face intimidating interrogation by the raiding agents.[16]

The most fundamental change needs to come from state legislatures. Though it appears that there has been rapid progress among some states to address the increasing need for a complete state-based scheme to protect victims and thoroughly investigate trafficking, not all states are on board as of 2013.[17] States without a comprehensive human trafficking framework must develop one that not only addresses the punishment of traffickers and the protection of victims – these frameworks must include provisions for law enforcement training and trafficking tasks forces. Arizona, for example, lacks (among other things) statutory provisions for human trafficking training for law enforcement as well as a provision for a task force on trafficking.[18] If Arizona’s legislature would make strides to adopt a more comprehensive framework, the MCSD might use its “identity theft raids” as an opportunity to identify potential human trafficking victims and investigate larger criminal schemes rather than criminalize victims.

Though the United States has made a commitment to protect international trafficking victims, punish their traffickers, and take steps to prevent trafficking entirely, this commitment must be supported at the state level as well. This can be accomplished through state adoption of comprehensive trafficking frameworks[19] and expanded law enforcement training for victim identification, procedural change, and awareness of the overlap between immigration and human trafficking laws.

 Katherine Bushman is a 3L at S.J. Quinney College of Law from Salt Lake City, Utah.