51:5 Optimal Deterrence: A Law and Economics Assessment of Sex and Labor Trafficking Law in the United States


While sex trafficking has been the focus of much scholarship and has received a greater amount of attention from the mainstream media, labor trafficking is the more prevalent form of slavery in some areas of the world, particularly the United States. The case involving Irma Martinez and her traffickers illustrates a typical case of labor trafficking. In both labor and sex trafficking cases, individuals, often those living in poverty, are offered an opportunity to live and work abroad earning wages greater than those they can expect in their home country. It is often enough to support their families who face a daily struggle to meet their basic needs. Despite the current system of laws, the intermediary actors and employers who recruit vulnerable individuals stand to gain from exorbitant fees paid by the prospective employee and the prospect of low-to-no-cost labor, and they face very little risk of getting caught. Given this ongoing and widespread pattern of exploitation, a question arises as to whether the current structure of trafficking laws (codified as part of the TVPA) is adequately confronting the problem.

The interdisciplinary field of law and economics is focused on assessing the efficiency of laws in society using economics as a tool for analysis. The use of economics to study criminal law was initiated in the late 1960s. The basic model purports that criminals weigh the perceived benefits of committing a crime with the perceived costs of committing a crime. Costs are defined as a function of the probability of detection and severity of legal sanction. The model has been subsequently refined and even adapted to begin incorporating behavioral models borrowed from the social sciences to help more accurately capture decision‑making. Applying such an analysis to the laws codified under the TVPA could help identify shortcomings in the law and determine recommendations for improvement.

This Comment uses a law and economics approach to analyze whether the TVPA is appropriately tailored to fight all forms of human trafficking. Part II of this Comment will describe the TVPA and its current one-size-fits-all approach, examine the contours of labor and sex trafficking, highlight similarities and differences, and dissect the cost-benefit analysis for traffickers. Drawing on models for optimal deterrence, Part III assesses the likely success of each model when applied to labor and sex traffickers. Part IV then determines whether the TVPA employs the best model for deterrence for each type of trafficking. Finally, this Comment concludes by measuring a set of proposed recommendations against the analysis provided in the previous Part.