Human Trafficking, Immigration Regulation, and Subfederal Criminalization

In the fifteen years since the enactment of the Trafficking Victims Protection Act—the U.S. legislation implementing the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children—every state in the United States has enacted its own, state-level antitrafficking law. This paper presents a multistate survey of state-level antitrafficking laws and the criminal prosecutions that have been conducted pursuant to those over the past decade. The comparative treatment of noncitizens and citizens in antitrafficking prosecutions is of particular concern. This research reveals that while subfederal implementation of antitrafficking laws has the potential to complement stated federal and international antitrafficking objectives, it also has the power to subvert and undermine those goals. State-level enforcement both mirrors and amplifies some of the systemic problems that arise when the criminal law is used as a tool to combat trafficking, including the manipulation of antitrafficking tools and rhetoric to perpetuate racial subordination and migrant criminalization. Ultimately, this research offers broader theoretical insights into the promises and pitfalls of overlapping criminal jurisdiction both within federalist systems and within frameworks of international regulation.