In order to stop a crime as prevalent and pervasive as human trafficking, we must attack its root causes. With estimated profits of $150 billion a year, human trafficking’s largest inducement is undoubtedly its economic prospects. Asset forfeiture laws can be one of our most powerful tools in dismantling those economic incentives.
“At the end of the day, human trafficking is a business,” Benjamin Greer, attorney and instructor on human trafficking for the California Governor’s Office of Emergency Services, said in an interview with Stop Modern Day Slavery. “Traffickers are trying to maximize their profits. And if the core motivating factor of trafficking is monetary gain, then why shouldn’t our laws be tailored to attack that primary motivator?”
At the most basic level, asset forfeiture laws enable the government to seize property that can be linked to a criminal enterprise. There are four different categories under which an asset can qualify for forfeiture. The first is contraband, which refers to goods whose possession is illegal in the United States or that were imported or procured illegally.
Another powerful asset in the fight against human trafficking is the second category of forfeiture liability: property that was generated by criminal activity. Here, “property” refers both to material products and monetary proceeds. As such, this category can be used against labor trafficking by rendering the products of forced labor subject to forfeiture, as well as against sex trafficking by confiscating the profits traffickers can earn on account of it.
Despite this second category’s versatility, it is the third category that, according to Greer, could prove to be the most potent tool in dismantling human trafficking. Under this framework, all goods that are instrumental or facilitate human trafficking activity can be subject to forfeiture. “Instrumentality best refers to the actual means by which the offense was committed and limits forfeiture to the property and that property alone,” Greer clarifies in an article titled Crime Shouldn’t Pay. On the other hand, “facilitation extends the focus to property that is intended to be used in the unlawful activity.”
Speaking to Stop Modern Day Slavery, Greer further explained why the instrumentality and facilitation principle is such “an incredibly powerful disincentive to utilize forced labor.” He explained, “If you just place a flat fine on human trafficking, traffickers can factor that into their business. But if the law says ‘tools and instrumentalities,’ well, that could be everything. And traffickers don’t know how to change their price scale for everything.”
In other words, while traffickers have the ability to adapt to fines by increasing the rates they charge or the number of goods they sell, the forfeiture of all goods instrumental to trafficking could both financially debilitate traffickers and render them unable to continue their operation.
“If you seize all of a traffickers’ assets, even if they don’t go to jail, that is disruption,” Greer explained. “A lot of times we discount the effects of disruption on a criminal enterprise. It is going to take months for them to rebuild their capital and reestablish their networks.”
The last and perhaps most vague category of asset forfeiture liability refers to goods that are deemed harmful to the public good. This category is often called “nuisance forfeiture.” Apart from the categories of assets, there are two main types of asset forfeiture: criminal and civil asset forfeiture. The main differences between the two types are the standard of proof necessary for seizure and the time at which the asset forfeiture plea must be issued. During civil asset forfeiture pleas, a prosecutor must only show, by a “preponderance of evidence,” that the property in question can be linked to the crime. Furthermore, civil asset forfeiture pleas can be issued prior to a criminal conviction.
On the other hand, criminal asset forfeiture pleas are more complex. The pleas must be issued during the indictment of a defendant, can only be granted after a defendant is convicted, are contingent on the specific crime of which a defendant is convicted, and require a higher standard of proof than civil asset forfeiture pleas.
Though on its face, civil forfeiture pleas seem easier to satisfy and, thus, might be utilized more often, in reality, a prosecutor’s decision to opt for civil as opposed to criminal forfeiture largely depends on which laws a given state or jurisdiction has in place.
“There is significant opposition to civil forfeiture,” Greer further commented. “For civil forfeiture, the threshold and standard of proof is much lower. Whereas for criminal forfeiture, you also have the procedural safeguard that the person is found guilty of the crime before the forfeiture occurs.” As a result, “the criminal procedure helps alleviate the fear of government misuse because the proof threshold is higher.”
Once seized, there are a number of ways the forfeited assets can be employed. By far, the largest share of proceeds are used to reimburse and support law enforcement agencies. “Almost 9 out of 10 jurisdictions specify that funds from forfeitures are to be given to law enforcement agencies or are to be used for law enforcement purposes.” Other than to fund law enforcement or police training, assets can be employed for restitution. This can include giving the seized proceeds to the victims or using them to fund and support victim services, psychological services, and health care.
Human trafficking is a phenomenon that has existed for hundreds of years, and if we fail to address its root causes, it will continue to proliferate. If we, instead, want to dismantle it, we need to take away its largest inducement: the promise of economic prosperity. In this battle, experts like Greer agree that asset forfeiture laws are one of our greatest tools.
Lydell, whose home rests on a quiet street in Bonn, Germany, is currently a junior at Brown University studying English and Political Science. As an aspiring writer, Lydell not only appreciates the beauty of language, but recognizes its extraordinary power. It is through reading that many of us learn, and so it is through writing that we can educate and tackle the complex issues that pervade the world around us. Especially given his background as an African American, Lydell is passionate about facing modern iterations of slavery, and dismantling the injustices that populate our landscapes.
