Prop 35: The tragedy of what could have been

Last week I was one of three guests on this KCBS radio program.  It was prerecorded, with all of us interviewed separately, so none of us had a chance to reply to the others’ comments.  But when Chris Kelly (the major financial backer of the initiative, with approximately $2 million donated) commented that to his knowledge no trafficking survivor in California has received a civil award from their trafficker, I was perplexed to say the least.  Kelly repeated his statement during a panel discussion at USC last Tuesday, and this issue of civil judgements also appeared in this article where Kelly states, “I wish they could point to a case where a victim has sued a trafficker.  I haven’t seen one.”

Also quoted in this article, Nola Brantley, executive director of Oakland-based Motivating, Inspiring, Supporting and Serving Sexually Exploited Youth (MISSSEY) stated, “I’ve never met one girl that was able to sue her exploiter and get restitution, never.”  This is indeed sad since MISSSEY has served over 700 sexually-exploited girls.

But civil awards to survivors of trafficking are not that rare; my colleagues representing trafficking survivors have collected wages-owed, restitution, and additional damages for clients in San Francisco, Santa Clara, Los Angeles, and elsewhere.  Mr. Kelly would have known this if he had just sat down with these attorneys and service providers.

I don’t blame Kelly so much for not knowing the status of anti-trafficking efforts, I blame him for not asking!  This issue of civil remedies is just one example of what can occur when we don’t invest our time and effort in a collaborative approach to a complex issue like human trafficking, and this is the real tragedy of Proposition 35.  If the initiative passes next week, attorneys and legislators will go to work in an attempt to undo the elements of Prop 35 which will inhibit survivors from collecting everything they are due from their traffickers, and fighting the challenges created by Prop 35′s changes to the evidence code.  Human trafficking will remain a crime for which prison time is not mandatory; prosecutors and judges (the other two legs of the tripod, along with law enforcement, which is responsible for the justice system response) will still not receive the training they need; and other meaningful changes will remain, well, unchanged.

California Against Slavery and Chris Kelly could have invited a broad cross-section of anti-trafficking professionals and asked, as a multidisciplinary group, what changes to current law would be most productive to aid survivors, prosecute offenders, train all elements of the justice system, and raise public awareness.  But they chose not to.  This collaborative process is not new to anti-trafficking professionals; it is promoted by the U.S. Department of State as the 4 P Paradigm for responding to human trafficking: Prevention, Protection, Prosecution, Partnership.

How hard is it to get a large cross-section of anti-trafficking professionals in one room?  Pretty easy; this year California Attorney General Kamala Harris put together a Human Trafficking Word Group and held three day-long meetings, one each in Sacramento, San Francisco and Los Angeles.  I attended the first two, where over 40 individuals attended.  The list of subject matter experts involved in the work group has over 100 names.  It should be noted, the attendees and their organizations paid their own expenses to be part of this work group.  With a budget over $2 million, CAS and Chris Kelly could have held similar meetings if they had chosen.

If they had done so, Prop 35 might be endorsed by agencies like CAST (Coalition to Abolish Slavery and Trafficking), Asian Pacific Islander Legal Outreach, Polaris Project, ATEST (Alliance to End Slavery and Trafficking), the California Partnership to End Domestic Violence, the California Coalition Against Sexual Assault, and the Not For Sale Campaign; all organizations active in providing direct assistance to victims, advocating for legislative change, or both.  Community Solutions, a provider of services to survivors in the South Bay Area is publicly opposed to the initiative.

And if CAS and Chris Kelly had asked for broader and informed input, maybe organizations like the SAGE Project and Chab Dai USA would still be endorsing Prop 35.  Instead, both organizations have rescinded their endorsements.  The Los Angeles Times, San Francisco Examiner, Sacramento Bee, Fresno Bee, Santa Cruz Sentinel, Riverside Press-Enterprise all oppose Prop 35, a result of their concerns over the way the initiative is written.

All of the organizations and newspapers mentioned oppose human trafficking.  The reasons they do not support Prop 35 is because of the unintended consequences – all of which could have been avoided.

CAS (and, in particular, their founder and executive director, Daphne Phung) brought passion and commitment to the cause.  Chris Kelly brought $2 million and the ability to hire signature gathers to get the initiative on the ballot.  But they forgot to bring together the people who could have made Prop 35 both powerful and consequential.  They brought financial capital, but forgot the social capital.  They had the resources at hand, but made the decision not to use them.  Now the issue is in the hands of the public, most of whom have very little, if any, understanding of the complexity of human trafficking in California.

If Prop 35 passes the damage will have to be undone.  The best we can hope for is that it will fail, and nothing will have changed.  Which is very sad.  CAS and Chris Kelly had a great opportunity to make real impact but have missed it.  And that is tragic.

Human Trafficking Victims Trafficking Drugs: How Can Law Enforcement Respond?

“Cartels scheme to get noncriminals to do their dirty work”, written by ALFREDO CORCHADO, appeared in the Dallas Morning News on December 30, 2011.  This is an interesting article outlining how drug traffickers in Mexico use threats of violence to enlist unwilling smugglers into the drug trade, yet another example of how human traffickers exploit others.  Under the Trafficking Victims Protection Act of 2000, labor or services obtained through force, fraud, or coercion is human trafficking.  Corchado mentions a woman, currently in custody, who was told by drug traffickers her family would be harmed if she did not transport marijuana across the border into El Paso.  This type of coercion, threats to harm someone’s family, is often used by traffickers who exploit their victims through the commercial sex trade, or other forms of involuntary labor.  But this particular situation places victims is a terrible position where they have no one to turn to for help.  Corchado quotes the mother of one victim, “We’re innocent people, but no one believes our story in the United States, or in Mexico.  …it’s like it never happened because we don’t speak up; we don’t complain.  Complain to Whom?  We don’t trust Mexican authorities, and the Americans see everything in black and white.”

Speaking from the perspective of American law enforcement, this type of situation is exceedingly difficult to investigate!  If I arrest an individual possessing drugs in California (my home state) after they have crossed the border from Mexico, how can I verify their version of events when I would need to conduct my investigation in Mexico?  This heinous use of innocent victims as human mules not only places all of the risk of transport on the enslaved (for slaves is exactly what these people are), but at the same time it shelters the drug cartels and their minions, placing a border, lack of law enforcement cooperation, language, and other barriers between those who are responsible for protecting victims of crimes and the true criminals in this situation.

As an investigator, I have on occasion initially suspected a particular individual of committing a crime, only to change my mind later on.  My job then is to not only determine who did commit the crime, but often to find evidence to support the alibi of the person initially suspected.  Imagine this situation: working as a patrol officer I make contact with a man and his friend who are walking down the street, and through a legal search I find a envelop of cocaine in his pocket.  He professes the cocaine is not his, but belongs to his friend who is walking with him.  I can either take the easy route and arrest the man for possession or, if I am diligent in my work, I question both parties to determine if the story is true.  But if I only have the suspect to interview, and no way to investigate and verify their statement, my options are nil; I cannot simply release an individual, even if I believe their story.  I must have exculpatory evidence which I can take to my prosecutor, who has the authority to drop any charges against the suspect.

Of course, those individuals who are forced to transport drugs are in the minority; most drug smuggling is performed by willing participants.  This makes the decision too easy for most law enforcement officers: arrest the person holding the drugs and let the attorneys and the court system figure out the details from there, after all, possession is 99 percent of the law.

In the midst of the drug trade, and especially the violence embraced by the Mexican cartels, there are many innocent victims.  Those of us combating human trafficking must see this element of the cartel’s business for exactly what it is: another form of slavery.  This type of exploitation will be immensely difficult to prevent or solve, but the first step in defeating any problem is recognition.  I applaud Alfredo Corchado for his work.