The Thirteenth Amendment, Human Trafficking, and Hate Crimes

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 3, SPRING 2016

The Thirteenth Amendment, Human Trafficking, and Hate Crimes

Jennifer Mason McAward(fn*)

CONTENTS

INTRODUCTION.....................................................................................829

I. THE TRAFFICKING VICTIMS PROTECTION ACT OF 2000 ....................831

A. The Legislative Record..............................................................831

B. Constitutional Challenges........................................................832

II THE MATTHEW SHEPARD AND JAMES L. BYRD, JR. HATE CRIMES PREVENTION ACT OF 2009............................................................................834

A. The Legislative Record..............................................................834

B. Constitutional Challenges..........................................................839

III. WHY THE DIFFERENCE?..................................................................843

CONCLUSION...........................................................845

INTRODUCTION

The two most recent federal statutes passed pursuant to Congress's Thirteenth Amendment enforcement power are the Trafficking Victims Protection Act of 2000 (TVPA) and the Shepard-Byrd Hate Crimes Act of 2009. While the Thirteenth Amendment basis of the TVPA has never been questioned in court, the constitutionality of the Shepard-Byrd Act has been challenged (albeit unsuccessfully) in a series of recent cases. This Essay will consider this disparity and suggest that it tells us something about the parameters of the Thirteenth Amendment enforcement power. In particular, it suggests that congressional power is at its apex when the conduct regulated-like human trafficking-has a close nexus to actual conditions of slavery or involuntary servitude. When the conduct regulated is a step removed from the Amendment's textual prohibitions, as racial hate crimes are, that conceptual space permits greater debate about the validity of Congress's action.

This Essay will begin by examining the text and legislative history of each act, paying particular attention to the evidence Congress amassed connecting the legislation to the prohibitions of the Thirteenth Amendment. It will then contrast litigation filed in response to the TVPA, which has not raised Thirteenth Amendment issues, with the constitutional critiques made in recent challenges to the Shepard-Byrd Act. Those challenges have been unsuccessful to date, which is unsurprising given the deferential standards currently governing Thirteenth Amendment enforcement legislation.(fn1)However, the arguments made in those challenges are tied to a strain of Supreme Court precedent and legal scholarship that calls for more thorough legislative fact-finding and a tighter link between regulated conduct and substantive constitutional violations. Indeed, judges from two federal courts of appeals have acknowledged that it may be time for the Supreme Court to reexamine the scope of Congress's power to enforce the Thirteenth Amendment.(fn2)

From this perspective, the Shepard-Byrd Act's prohibition on racial hate crimes may be on shakier constitutional footing than the TVPA. At first glance, this seems ironic given that racial minorities were the original intended beneficiaries of the Thirteenth Amendment's protections. However, it ultimately may mean that at this point in our nation's history, with chattel slavery solidly abolished, the Thirteenth Amendment is best understood as a provision that speaks to labor rights and conditions. If so, Congress's Thirteenth Amendment enforcement power today is more appropriately focused on ensuring free labor than ameliorating racial discrimination.

I. THE TRAFFICKING VICTIMS PROTECTION ACT OF 2000

A. The Legislative Record

Congress passed the TVPA "to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims."(fn3) To that end, the statute enhances criminal penalties for traffickers, provides protection and assistance programs for victims, and creates a variety of mechanisms to prevent trafficking.

In passing the bill, Congress alluded to both its power to regulate interstate commerce as well as its power to enforce the Thirteenth Amendment. Congress issued findings that "[t]rafficking in persons substantially affects interstate and foreign commerce,"(fn4) and that human trafficking is "a modern form of slavery" and "the largest manifestation of slavery today."(fn5) Invoking the Thirteenth Amendment's prohibition on slavery and involuntary servitude, Congress declared that "[c]urrent practices of sexual slavery and trafficking of women and children are similarly abhorrent to the principles upon which the United States was founded."(fn6)

Congress gathered extensive evidence regarding the causes and effects of human trafficking. At the heart of the record was evidence that workers are trafficked under conditions akin to the slave trade and held in conditions akin to slavery. As Senator Sam Brownback stated: International sex trafficking is the new slavery. It includes all the elements associated with slavery, including being abducted from your family and home, taken to a strange country where you do not speak the language, losing your identity and freedom, being forced to work against your will with no pay, being beaten and raped, having no defense against the one who rules you, and eventually dying early because of this criminal misuse.(fn7)A State Department official testified, similarly, that "[a] trafficking scheme involves a continuum of recruitment, abduction, transport, harboring, transfer, sale or receipt of persons through various types of coercion, force, fraud or deception for the purpose of placing persons in situations of slavery or slavery-like conditions, servitude, forced labor or services."(fn8) And, as one witness put it, "[w]hile we discuss this problem using such terms as 'trafficking' and 'forced labor,' we should make no mistake about it: we are talking about slavery, slavery in its modern manifestations."(fn9)

Congress also heard evidence regarding the vast scope of the problem of trafficking: "At least 700,000 persons annually, primarily women and children, are trafficked within or across international borders. Approximately 50,000 women and children are trafficked into the United States each year."(fn10) One witness related stories of debt bondage and sexual slavery in which women are forced to work off tens of thousands of dollars in debt to traffickers by servicing dozens of men a day. The witness concluded that "[t]hese numbers and the accompanying accounts illustrate that trafficking of women and children for purposes of prostitution has become a contemporary form of slavery. The numbers may soon be on par with the African slave trade of the 1700s."(fn11)

This testimony and these statistics lend great support to Congress's ultimate conclusion that human trafficking is "a modern form of slavery"(fn12) redressable under the Thirteenth Amendment.

B. Constitutional Challenges

Convictions under the TVPA have been routinely upheld against constitutional challenge. The most common challenge has been to 18 U.S.C. § 1591, a provision of the TVPA that imposes punishment on anyone who "knowingly in or affecting interstate or foreign commerce" entices a minor to engage in a commercial sex act.(fn13) Many have been convicted under that provision based on conduct that was entirely intrastate, and they have questioned whether Congress had the power to address such conduct. This portion of the TVPA has routinely withstood such challenges(fn14) on the authority of Gonzales v. Raich, in which the Supreme Court held that Congress's commerce power permits it to "regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."(fn15)

The TVPA, however, has never been challenged as beyond Congress's power to enforce the Thirteenth Amendment,(fn16) even though one commentator has noted that it might be susceptible to challenge on that basis.(fn17) One portion of the TVPA, enacted as 18 U.S.C. § 1584, prohibits labor that is forced by "means of serious harm or threats of serious harm."(fn18) Serious harm is defined to include any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.(fn19) This definition was included to overturn the Supreme Court's decision in United States v. Kozminski, which had held that statutory prohibitions on "involuntary servitude" barred only labor coerced through physical force or threats of legal compulsion.(fn20) The Kozminski Court stated that such prohibitions should be read in line with the Court's interpretations of the Thirteenth Amendment itself and concluded that the intent of the Thirteenth Amendment, buttressed by the Court's own precedents, was to prohibit servitude "enforced by the use or threatened use of physical or legal coercion."(fn21) In passing the TVPA, however, Congress determined that a substantial number...