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F I S C A L I M P A C T R E P O R T

SPONSOR Garcia, M.J.

ORIGINAL DATE

LAST UPDATED

1/16/08

2/13/08 HB

SHORT TITLE Create Offense of Human Trafficking

SB 71/aSJC/aSFC/aHJC

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY08

FY09

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Administrative Office of the District Attorneys (AODA)

NM Sentencing Commission (NMSC)

Attorney General’s Office (AGO)

Department of Public Safety (DPS)

SUMMARY

Synopsis of HJC Amendment

The House Judiciary Committee amendment to House Bill 71 strikes SJC amendments 1 through

15 that added language regarding coordination with state and local law enforcement and

documentation assistance for victims, as well as a new provision for civil action.

Synopsis of SFC Amendment

The Senate Finance Committee amendment to SJC amendment strikes the appropriation in its

entirety.

Synopsis of SJC Amendment

The Senate Judiciary Committee amendment makes the following changes.

Senate Bill 71/aSJC/aSFC/aHJC – Page

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Section 1:

Adds new language requiring the attorney general to coordinate state and local law

enforcement to provide victims who give law enforcement information regarding a perpetrator of

human trafficking protection from retaliatory action. Adds language requiring the prosecuting

authority to take all reasonable steps within its authority to provide a human trafficking victim

with necessary documentation and assistance for adjustment of the victim’s immigrant status.

Section 2:

New provision granting victims the right to bring a civil action for civil damages with

a statute of limitations of ten years from the time the trafficking incident occurred or when the

victim attains eighteen years of age if the victim was a minor when the incident occurred.

Section 3:

Adds human trafficking to list of enumerated offenses to which the Crime Victims

Reparation Act applies for reparation related to the criminal offense. Adds the provision that if a

human trafficking victim advocate or victim advocate from the district attorney’s office raises

the issue of the victim’s ability to cooperate the Court shall make the determination on the

victim’s ability to cooperate. Adds ‘child care’, ‘legal assistance’, and ‘state funded cash

assistance’ to state benefits and services eligible to victims of human trafficking that cooperate in

the investigation or prosecution of the person charged with the crime of human trafficking. Lists

human services department as alternative to children youth and families department to administer

state benefits. Defines a human trafficking victim advocate as a person provided by the human

services department through a nonprofit agency with expertise in providing services for victims

of crime. Specifies one member from law enforcement from each geographical region to

participate in the task force and specifies two representatives from organizations that provide

services to victims of human trafficking to participate in the task force. Adds additional duties to

the task force such as collect and organize data on the interrelationship between human

trafficking and disabilities.

Divides the appropriation amount from $250,000 to children youth and family to $125,000 to

children youth and family, and $125,000 to human services department.

Synopsis of Original Bill

Senate Bill 71, creating a new criminal offense known as human trafficking; providing penalties;

establishing the task force to combat human trafficking, appropriates $82 thousand from the

GENERAL FUND to the attorney general for per diem and mileage for the public members of

the task force to combat human trafficking, training for law enforcement personnel and victims

services providers, a media awareness campaign and other expenditures for the task force and

appropriates $250 thousand from the GENERAL FUND to Children, Youth and Families

Department for the purpose of providing benefits and services to human trafficking victims.

FISCAL IMPLICATIONS

Corrections Department acknowledges that new felony convictions are likely to increase its costs

moderately with additions to the inmate population and probation/parole caseloads. The bill is

unlikely to cause a moderate or substantial number of convictions, but it is always difficult to

predict the effect of any new crime bill with any certainty.

Senate Bill 71/aSJC/aSFC/aHJC – Page

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SIGNIFICANT ISSUES

The Attorney General’s Office notes that the amendments provide substantial protection and

state benefits to victims of human trafficking. In addition to adding human trafficking to the list

of enumerated offenses which provide reparation to crime victims, victims will also receive state

general assistance benefits which include cash assistance. Services granted by Crime Victims

Reparation may duplicate proposed state benefits and services. Creating a civil remedy for

human trafficking victims pertains to civil liability and is more appropriate for separate civil

legislation.

The AGO also adds however that the amendment as currently drafted is unclear as to whether the

Court, as in other cases where a witness is subpoenaed, will determine the victim’s availability to

testify or whether the Court will make a determination on a victim’s ability to cooperate in

general with the case.

Administrative Office of the District Attorneys cites the most significant factor of the legislation

is that it will allow the State of New Mexico to criminally punish those individuals who exploit

their fellow humans through a modern version of slavery or involuntary servitude, by creating a

specific crime defining the offense. In addition, the legislation provides for an escalating degree

of possible punishment depending on whether the victim was a teenager under the age of 16 or a

child under the age of 13.

It also adds that it is quite significant that (1) the law provides that prosecution for the crime of

human trafficking will not prevent prosecutors from charging, proving, and asking the Courts to

punish other criminal behavior committed in addition to human trafficking, (2) victims of human

trafficking may not be charged as accessories and (3) those convicted of human trafficking will

owe their victims specific kinds of restitution such as the value of their forced labor.

The Attorney General’s Office explains that this bill is different from the 2007 bill introduced

due to recommendations made at the Courts, Corrections and Justice Committee interim hearing

in Taos in August. Revisions include no step penalties dependant upon age, removed forfeiture

provisions, and no enhancement for ten or more victims. The bill makes it a third degree felony

to use force, fraud or coercion to subject a person to labor, services or commercial sexual activity

or to benefit financially from labor, services or commercial sexual activity, knowing force, fraud

or coercion was used. Force, fraud or coercion is not required where a person under 18 is

engaging in commercial sexual activity. It also adds a second degree felony when the human

trafficking results in injury to a person and provides restitution and a task force consisting of

state federal, local law enforcement as well as victim service providers.

PERFORMANCE IMPLICATIONS

AGO explains that the bill requires prosecuting authority to provide victim assistance with

federal immigration authorities and agencies familiar with TVPA. Victim advocates in

prosecuting agencies will require training with federal entities. Children Youth and Families

Department or human services will be required to administer general assistance benefits to

human trafficking victims pending federal assistance.

The Department of Public Safety notes that human smuggling is increasingly committed by

organized, sophisticated criminal groups, and is the fastest growing source of profits for

organized criminal enterprises worldwide. It adds that once officers have advanced training and

become more accustomed to identifying this crime, current resources could handle the workload.

Senate Bill 71/aSJC/aSFC/aHJC – Page

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Corrections Department is concerned that if there were more than just a few additional

convictions as a result of this bill that it would impair its ability to perform prison-related and

probation/parole supervision services with current levels of staffing.

Administrative Office of the District Attorneys recognizes that as with any new law, there will be

a somewhat front-loaded learning process that necessarily carries with it performance

implications for law enforcement and prosecutors. Both sets of professionals charged with

enforcing the law and investigating reported violations of it will need to get up-to-speed in a

somewhat unfamiliar area.

ALTERNATIVES

One alternative to the legislation overall would be to have the Task Force go forward prior to the

enactment of a special statute criminalizing human trafficking, in order to assess the real extent

and characteristics of the problem in New Mexico. How pervasive is it. What forms does it

take; e.g., sweatshop-type labor conditions, sexual exploitation, and so on…. The only potential

advantage of such an approach would be the ability to better tailor the criminal statute to the

specific problems New Mexico is encountering in this area. The risk is that in studying the

problem first, and then enacting a specific criminal statute, the state risks mounting an

inadequate response to terrible crimes should they begin to become more prevalent in New

Mexico.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The consequence of not enacting the bill is that those human trafficking cases that do occur in

New Mexico in the absence of such legislation will either need to be pursued as a different

category of crime, which is very difficult, if not impossible, or referred to the federal government

for prosecution, which is increasingly impractical given the resources being tied up by other

types of federal investigation and prosecution (i.e.; terrorism, public corruption). If that happens,

New Mexico could conceivably risk becoming a more heavily traveled thoroughfare and/or

haven for those who engage in human trafficking.

In a report published by the National Conference of State Legislatures, “A Review of State

Immigration Legislation in 2005," the following summary is presented:

Trafficking (9 bills: 9 enacted): 9 measures were enacted, adding law enforcement authority and

penalties on traffickers, compensation to victims, and studies.

Arizona gave local law enforcement the ability to arrest smugglers and to penalize human trafficking. (S.

1372)

Colorado created a task force on human trafficking (H.B 1143).

Idaho authorized an interim study; it passed the House and Senate in April and does not require

gubernatorial action. (H.C.R. 18)

Illinois criminalized involuntary servitude (including sexual servitude of minors) and human trafficking

and ensures that victims are referred to appropriate state and federal services (H.B. 1469).

Kansas criminalized human trafficking as a class 2 felony and aggravated trafficking as a class 1 felony

(S.B. 72).

Louisiana criminalized human trafficking and established penalties including fines and imprisonment

(H.B. 56).

Missouri created standards for international “matchmaking" services and classified the provision of

incorrect information as a class D felony (H.B. 353)

New Jersey criminalized human trafficking and authorizes victim compensation (A. 2730).

Senate Bill 71/aSJC/aSFC/aHJC – Page

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Washington created a working group to develop written protocols for the delivery of services to human

trafficking victims. (H.B. 5127)

(Note: in 2003-2004 WA, TX, FL, MO and CT enacted laws.)

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