What is the Monetary Value of Slave Labor?: Restitution Based on a Traditional Fair Market Valuation Basis May Not Fully Compensate Human Labor Trafficking Victims
Greer, Benjamin Thomas
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Human trafficking is an abomination that decimates the lives of the trafficked, fracturing families, and is an act exploiting human labor as a renewable resource. Post-conviction proceedings primarily focus on the disposition of sentence and rehabilitation of the convicted. Restitution for the victim is too often marginalized, relegated to an afterthought. Prosecutors are often reluctant to vigorously pursue victim restitution, as they feel they have achieved their mandate of conviction, shifting their focus to their next case file. Without a nuanced and appropriately formulated monetary recovery for their damages, the victim fails to be made “whole.” With the recent resurgence and focus on victims’ rights, proper calculation of human trafficking restitution should also be carefully examined. Respective to forced labor trafficking, a traditional fair market value calculation for forced labor could be abused and exploited by the perpetrator. In a relationship where power and control is completely concentrated in one party, and that party has been found to have criminal culpability, they should not be afforded the benefits of a restitution calculation that is fundamentally built upon a freely negotiated wage between two similarly empowered or situated parties. Since the trafficker/victim relationship was wholly weighed in favor of the trafficker, it would stand that a restitution order should be created to address this past disparity of power. California Penal Code section 1202.4(q), with its insightful alternative methods for calculating restitution, could be utilized to address this disparity. I believe the court should be guided by wages that have been negotiated by workers with significant negotiating control and power – i.e. a collective bargaining wages. This form of calculation best addresses the entirety of the injury endured by the victim.