Human Trafficking Reauthorization Would Undermine Existing Anti-Trafficking Efforts and Constitutional Federalism

The scourge of human trafficking is a global phe­nomenon. Widely considered a "modern-day form of slavery," trafficking occurs when the powerless "are subjected to force, fraud, or coercion, for the purpose of sexual exploitation or forced labor."[1] Over the past decade, federal and state officials have greatly stepped up their law-making and law-enforcement efforts to punish traffickers and protect victims. Congress, for example, passed the comprehensive Trafficking Victims Protection Act of 2000[2] and reauthorized it in 2003 and 2005. [3] Many of the core provisions of the exist­ing law have proven successful and should be re­authorized once again.

But the latest proposal to reauthorize the Traffick­ing Victims Protection Act includes new criminal pro­visions that would undo much of the recent progress federal and state law-enforcement officials have made against trafficking. With very little debate, the House of Representatives in December passed the William Wilberforce Trafficking Victims Protection Reauthori­zation Act of 2007 (TVPRA, H.R. 3887). The TVPRA trivializes the seriousness of actual human trafficking by equating it with run-of-the-mill sex crimes--such as pimping, pandering, and prostitution--that are neither international nor interstate in nature.

The net effect of this unconstitutional federaliza­tion of local crime would be to blur the respective lines of federal and state authority, assert federal supremacy without providing sufficient federal resources, and thus undermine the efforts of state law enforcement against both ordinary sex crimes and the local effects of human trafficking. Likewise, saddling federal authorities with the enormous job of fight­ing local sex crimes would divert them from their own anti-trafficking efforts.

The Department of Justice, which operates ex­tensive--and increasingly successful--federal ini­tiatives to combat foreign and domestic human trafficking, sent the chairman of the House Judi­ciary Committee a 13 page letter in November de­tailing the bill's serious shortcomings.[4] Not only did the House apparently disregard this letter and fail to enact any meaningful set of the Department's recommendations, but the chairman who received the Department's letter waived his committee's for­mal consideration of the bill.[5] The House Judiciary Committee thus performed little meaningful over­sight over the TVPRA before it was passed. The leg­islation is now before the Senate for consideration, with a vote likely before the end of the session.

Yet the bill is fraught with problems. Indiscrimi­nate federal criminalization disregards the constitu­tional separation of law enforcement by federal authorities from law enforcement that should be authorized and conducted under the jurisdiction of state and local governments. For years, the American Bar Association (ABA), the Police Executive Research Forum (PERF), and similar nonpartisan organiza­tions have cautioned about the deleterious effects of unconstitutional federalization on state and local law enforcement.[6] Among other problems, uncon­stitutional federalization causes great uncertainty among both state and federal officials about the scope of their respective investigative authority.

Even more concerning to those focused on help­ing trafficking victims, the TVPRA's unconstitu­tional criminalization creates the illusion that victims can count on extensive federal involvement in fighting local sex crimes. These unfounded and unrealistic expectations cannot possibly be fulfilled given the lack of federal resources. Nothing could be more vital to the success of federal efforts to aid victims of trafficking for sex acts than to ensure that those victims trust federal law enforcement. Much as the ABA and PERF have additionally cautioned, the TVPRA's implicit promises will result in many trafficking victims becoming disillusioned by un­fulfilled promises, placing less trust in federal law enforcement, and ultimately failing to receive the federal assistance they so desperately need.

A broad federal role in fighting ordinary prosti­tution is unnecessary and likely unconstitutional. In considering any legislation that touches upon crimes that are local in nature and subject to the police power of the states, Congress should always remember the principles of federalism--i.e., the Constitution's structural division of power between the federal government and the states. Constitu­tional limitations sometimes appear to be unneces­sary obstacles to well-intentioned lawmaking. But as would be true if this bill were to be enacted into law, disregarding such limitations almost always undermines the same law-enforcement goals that the TVPRA is apparently crafted to achieve.

Trafficking vs. Prostitution

Estimating the total number of trafficking vic­tims, whether globally or in the United States, is an inherently difficult task that is prone to unreliable results, but the federal government has identified approximately 1,500 victims that have been traf­ficked into the United States since 2000.[7] Accord­ing to the Federal Bureau of Investigation, the money "earned" from human trafficking often is part of the income stream flowing into criminal and terrorist organizations.[8] In addition, some U.S. citi­zens and legal residents travel abroad as "sex tour­ists" to engage in sex crimes with minors and other victims of trafficking in regions where the laws against such conduct are weak or rarely enforced.[9]

The TVPRA includes a variety of provisions addressing this foreign and domestic trade in per­sons--typically women and children--who are forced into sexual servitude. The bill would expand the economic penalties imposed on countries whose anti-trafficking efforts fail to meet U.S. stan­dards, require extensive federal reporting on the problem, and enhance the federal government's provision of protection and assistance to trafficking victims.[10] The bill purports to increase federal efforts to combat trafficking conducted outside the nation's borders and to prevent such trafficking from spilling over into the United States.

But the TVPRA's criminal provisions cover a much broader range of conduct than just human trafficking, including many essentially local acts that this nation has invariably addressed at the state and local levels. At most, such conduct is only indi­rectly related to international trafficking.

Most dramatically, the TVPRA would create a new federal offense, "sex trafficking," encompass­ing common prostitution-related offenses.[11] Specif­ically, any person who "persuades, induces, or entices any individual to engage in prostitution" (that is, "any sex act, on account of which anything of value is given to or received by any person") would face large fines and imprisonment for up to ten years.[12] An overlapping provision would crim­inalize "unlawful compelled service," which it defines to include "caus[ing] or exploit[ing] finan­cial harm or fear of financial harm" for the purpose of "obtain[ing] or maintain[ing] the labor or ser­vices of a person...for use in [prostitution]."[13] Taken together, these provisions would purport­edly transform all pandering, pimping, and hiring of a prostitute into federal crimes.

Congress must not sweep aside the long-stand­ing authority of state and local governments to define what immoral conduct should be criminal­ized and punished.[14] The vast majority of commu­nities across the United States have concluded that they realize a wide range of benefits by criminaliz­ing and punishing prostitution and related con­duct at the state and local levels. Wrongdoing that is fundamentally local in nature should continue to be criminalized, investigated, prosecuted, and punished by the same state and local law-enforce­ment authorities who each year handle 95 percent of all criminal prosecutions across the United States. The TVPRA's criminal provisions encom­passing ordinary local sex crimes afford insuffi­cient constitutional respect for and deference to state and local authority.

The TVPRA would place chief responsibility for enforcement of these new authorities with the Department of Justice's Child Exploitation and Obscenity Section, which it would rename the "Sexual Exploitation and Obscenity Section."[15] Currently, this division investigates and prosecutes child prostitution, child sex tourism, and child pornography and, according to those familiar with its operations, is already overburdened. Even if its staff were to be increased, enlarging its mandate would distract the division from fighting child exploitation, diverting its valuable resources toward crimes that are already under the purview of state and local police.

Further, the TVPRA's overbroad criminal provi­sions would criminalize "knowingly" making travel arrangements for those intending to engage in "any commercial sex act."[16] Violators would be subject to significant fines and a sentence of up to ten years.[17] This may sound good, but once again the language of the bill's criminal provisions suffers from a lack of precision that would cause federal law enforcement to be diverted from the worst traf­ficking crimes. The Department of Justice currently focuses its efforts against "sex tourism" on overseas sex crimes that involve children.[18] These cases are, unsurprisingly, highly resource-intensive.[19] The TVPRA's new definition of sex tourism encom­passes adult travel to engage in adult prostitution where such prostitution is legal, thus diverting scarce federal resources from vitally important law-enforcement efforts against trafficking and sex tour­ism that involves children.

Unnecessary Criminalization

The TVPRA's provisions criminalizing inherently local commercial sex acts are also unnecessary. Except for several counties in Nevada,[20] prostitu­tion and associated crimes, such as pandering, pimping, and hiring a prostitute, are punishable by criminal fines and imprisonment everywhere in the United States, including the District of Columbia and all U.S. territories.[21] In Virginia, for example, penalties run as high as 10 years imprisonment and $100,000 in fines for pimping and one year impris­onment and $2,500 in fines for hiring a prosti­tute.[22] These penalties are representative of those imposed across the country.[23]

Existing state and local laws banning prostitution are diligently enforced. State and local law-enforce­ment officers made approximately 70,000 arrests for prostitution-related crimes in 2005, the most recent year for which comprehensive data are avail­able.[24] By comparison, in that same year the entire federal criminal-justice system investigated fewer than twice that number of crimes of all types and categories.[25] Given the magnitude of state-led efforts to combat prostitution and related offenses, the federal government simply lacks the resources--including investigators, prosecutors, and judicial personnel-- to tackle more than a small percentage of the case­load currently handled by state and local officials.

Even the Department of Justice doubts that fed­eral jurisdiction over local sex crimes is needed or would be productive. In its comments on the TVPRA, the Department states that it "is not aware of any reasons why state and local authorities are not currently able to pursue prostitution-related crimes such that Federal jurisdiction is necessary."[26]

Moreover, federal law enforcement already has the criminal laws and other statutory authorities needed to punish traffickers traveling between states and across U.S. borders. By the end of fiscal year 2006, the Department had established 42 human trafficking task forces in the United States. Each task force is composed of a state or local law-enforcement agency, a trafficking victim services provider, the Office of the U.S. Attorney, and other federal investigative agencies. The members of each task force engage in extensive collaboration to pros­ecute traffickers and to identify and rescue victims.

Traffickers who violate federal statutes against involuntary servitude or forced labor can be pun­ished by severe fines and up to 20 years in federal prison.[27] If the involuntary servitude or forced labor involves kidnapping, sexual abuse, or any attempt on the victim's life, the maximum punish­ment is a life sentence. Federal criminal law includes similar penalties for debt servitude (peon­age) and for recruiting, harboring, transporting, or brokering persons for the purposes of committing another offense.[28] Of the 555 human trafficking suspects federal prosecutors investigated between 2001 and 2005, 322 were investigated for viola­tions such as these of the Trafficking Victims Pro­tection Act. In 2007 alone, the Justice Department opened 183 investigations and secured 103 con­victions of persons involved in trafficking adults and children.

Local pimping, pandering, or prostitution some­times is part of an interstate criminal organization. Such organizations move prostitutes from city to city to evade detection and prosecution. Prostitu­tion may also be part and parcel of a criminal oper­ation that involves interstate drug trafficking or other illicit commercial activities. In either case, the Mann Act criminalizes and provides federal jurisdiction over such interstate crimes involving pimping, pandering, or prostitution. As a result of the Justice Department's increased anti-trafficking efforts, 809 persons were convicted of Mann Act violations from 2002 through 2006.

The Justice Department's efforts to combat human trafficking extend well beyond domestic law enforcement. As just one example, in 2006 the Department was involved in combating trafficking in 21 countries, including by providing training and education on trafficking to forensic experts, health professionals, victim service providers, judges, law-enforcement officials, and other gov­ernment officials.

As the Department of Justice has explained, the bill's provisions on prostitution also fail to fit within the power granted the federal government in the Thirteenth Amendment to prohibit slavery and in­voluntary servitude.[29] Federal law enforcers already investigate and prosecute cases of prostitution in­volving severe force, often in concert with interstate and international trafficking, that are tantamount to involuntary servitude.[30]

The TVPRA is thus duplicative, adding redun­dant federal criminal laws--and the complication of overlapping law-enforcement jurisdiction--to conduct that is already addressed and heavily enforced by well-understood state and local laws. Given the robust state of U.S. criminal law on sex crimes and human trafficking, the criminal provi­sions of the TVPRA cannot be likely to bolster existing efforts to combat prostitution and related offenses.

Over-Federalization Undermines Accountability and Effectiveness

The overbroad criminal provisions of the TVPRA appear to be yet another example of Congress's growing habit of relying on federal criminalization as a panacea to cure all of society's ills.[31] The phe­nomenon of over-federalization of crime under­mines state and local accountability for law enforcement, undermines cooperative and creative efforts to fight crime (which promotes the states' vital constitutional function of acting as "laborato­ries of democracy"), and injures America's federalist system of government.

Like existing federal criminal provisions that ignore constitutional federalism, the TVPRA would further erode state and local law enforcement's pri­mary role in combating common street crimes, thereby reducing the effectiveness and success of local prosecutors and law enforcement. Whenever state and local officials can blame federal officials for failure to prosecute crime effectively--and vice versa--accountability and responsibility are signifi­cantly diluted. Although this is sometimes unavoid­able for the limited set of crimes for which there truly is overlapping state and federal jurisdiction,[32] unclear lines of accountability for wholly intrastate crimes--including those related to prostitution-- are wholly unnecessary and unacceptable.

Combating common crimes is a governmental responsibility over which the states have histori­cally been sovereign, with little intervention from the federal government.[33] Federal criminal law should be used only to combat problems reserved to the national government in the Constitution.[34] These include offenses directed against the federal government or its interests, express matters left to the federal government in the Constitution (such as counterfeiting), and commercial crimes with a sub­stantial multi-state or international impact.[35]

The basic non-trafficking offenses contained in the TVPRA do not fall within any of these catego­ries and so are not within the federal government's constitutional reach. For example, the fact that prostitution may (rarely) involve interstate travel or some other incidental interstate connection does not justify federal involvement. In fact, the vast majority of non-trafficking conduct that would be criminalized under the TVPRA would almost never take place in more than one locale in a single state. Such conduct is, at most, only tangentially inter­state in nature and does not justify additional fed­eral intervention.

The TVPRA's prostitution-related provisions ignore recent decades' lessons on how to reduce common crime successfully. New York City and Boston in the 1990s and early 2000s demonstrated that when accountability is enhanced at the state and local lev­els, local police officials and prosecutors can make impressive gains against crime. By contrast, federal­izing authority over crime reduces the accountabil­ity of local officials because they can pass the buck to federal law enforcement authorities.

The TVPRA also runs counter to the principles of federalism in other ways. For example, it is unclear what impact the vaguely worded provi­sions of the legislation would have in those Nevada jurisdictions where prostitution is not banned but is instead licensed and operated under close gov­ernment scrutiny. The TVPRA would place a cloud of legal uncertainty over jurisdictions that have chosen, for good or for ill, not to ban prostitution outright. Whatever the merits of those jurisdic­tions' choice, this is inherently a matter for local interest and control. As compared with decisions made in Washington, decisions made by local authorities acting locally are far more likely to rep­resent and be responsive to the social, political, and law-enforcement priorities of the affected commu­nities. Historical rationales for federalism--experi­mentation and creativity, local values and preferences, and division of power between levels of government--argue in favor of maintaining the criminalization, investigation, prosecution, and punishment of this inherently local conduct under the jurisdiction of state and local authorities.

In addition, over-federalization results in the misallocation of scarce federal law-enforcement resources, which in turn leads to selective prosecu­tion. Fighting crimes as common as prostitution, pimping, and pandering would place significant demands on the Federal Bureau of Investigation, the 94 U.S. Attorneys, and other federal law enforc­ers that would distract them from the truly national problems that undeniably require federal attention, such as the investigation and prosecution of foreign espionage and terrorism.

The federal judicial system also lacks the resources to hear large numbers of additional crim­inal cases. There are, for example, only about 665 federal judges who preside over criminal trials--a small number compared to the approximately 1,500 state judges who preside over criminal trials in California alone.[36]

Constitutional Problems

Prostitution is a problem common to many states, so federal involvement may seem like a good idea. To warrant federal involvement, however, an activity must fall within Congress's constitutionally granted powers. There are serious reasons to doubt that the criminal provisions in the TVPRA do so.

In the course of striking down provisions of the Violence Against Women Act of 1994 in United States v. Morrison, the Supreme Court in 2000 affirmed the fundamental limits that the Constitu­tion imposes on the federal legislative power:

Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written."[37]

This limitation on Congress's power to legislate is neither arbitrary nor accidental: It was adopted to protect the American people from the ever-expanding power of a centralized national gov­ernment. As the Court stated, "This constitution­ally mandated division of authority 'was adopted by the Framers to ensure protection of our funda­mental liberties.'"[38]

The drafters of the TVPRA apparently attempt to rely on the Commerce Clause to establish Con­gress's power to assert federal jurisdiction over run of the mill sex crimes that are essentially local in nature. But to fall within Congress's power to "regulate Commerce...among the several States," a problem must not merely be common to the states; it must be truly interstate in nature and "substan­tially affect" interstate commerce.[39] For this reason, Congress's power under the Commerce Clause does not include the authority to federalize most non-commercial street crimes, whether or not they have some minor nexus with interstate commerce.

Although broader and broader readings of the Commerce Clause during the latter part of the 20th century allowed the federal government to regulate more and more economic activity,[40] the Supreme Court has set limits and rejected several recent attempts to federalize common street crimes,[41] even ones that have some interstate impact. The expansive (many would say virtually unlimited) interpretation of the Commerce Clause that is employed to justify the creation of most new fed­eral crimes ignores the original meaning of the Constitution. As Justice Thomas wrote in his con­curring opinion in United States v. Lopez, if Con­gress had been given authority over any and every matter that simply "affects" interstate commerce, most of Article I, Section 8 would be superfluous, mere surplusage.[42]

In Lopez, the Supreme Court rejected the gov­ernment's "costs of crime" and "national productiv­ity" rationales for asserting federal authority over crime that is essentially local in nature. The govern­ment argued that violent crime resulting from the possession of firearms in the vicinity of schools affected interstate commerce by increasing the costs of insurance nationwide and by reducing interstate travel to locales affected by violent crime.[43] The government further argued that the possession of guns on or near school grounds threatened educational effectiveness, which would reduce the productivity of students coming from those schools, which would in turn reduce national productivity.[44]

The Court explained that if it were to accept these attenuated chains of but-for reasoning, the limits on congressional power would be obliterated.

Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under [these] theories...it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.[45]

Congress's recent proposals to create a new set of federal crimes covering prostitution and similar conduct that does not in reality involve the regula­tion of interstate commerce raise these same consti­tutional concerns. The TVPRA lacks the usual legislative "findings" (sometimes nothing more than mere boilerplate assertions of fact) that Con­gress often uses to demonstrate a link, often tenu­ous, between a local crime and the national economy. This puts it on weaker constitutional ground than the statutes struck down by the Supreme Court in Lopez and Morrison, leaving the bill without any factual or logical basis to support Congress's power to regulate prostitution under the Commerce Clause.

The bill's drafters have attempted to cure the serious problem of its constitutionality by limiting its applicability only to infractions that occur "in or affecting interstate or foreign commerce." In Morri­son, however, the Supreme Court ruled that this sort of language is not alone sufficient to bring an act within the scope of Congress's commerce power.[46] The regulated act must have more than some effect on interstate commerce; the effect must be a substantial one, and the connection between the regulated act and its substantial effect may not be too attenuated.[47]

The Supreme Court's decision in Gonzalez v. Raich,[48] upholding as constitutional the applica­tion of federal drug law to intrastate growers and users of marijuana, does not alter this analysis. Unlike in Raich and in Wickard v. Filburn, on which Raich relies, there is no comprehensive federal scheme (nor should there be one) regulating all financial transactions for sexual acts.[49] In Raich, one state had chosen to regulate the possession and use of marijuana in a manner that directly con­flicted with the provisions of the federal Controlled Substances Act, but no comprehensive federal reg­ulatory scheme, with "substantial effects" on the national economy, depends on Congress's power to regulate prostitution.[50]

In short, to the extent that there is interstate trade in the providers of prostitution, that activity is human trafficking, and it is already subject to federal criminal laws. Prostitution and closely related offenses that are local in nature and do not involve interstate commerce, however, likely are not.

Conclusion

Despite good intentions on the part of the bill's sponsors and supporters, the current version of the William Wilberforce Trafficking Victims Protection Reauthorization Act is problematic because its criminal provisions aim to turn common crimes-- crimes that are inherently local in nature and best handled at the state and local levels--into federal offenses. This would significantly undermine accountability by inviting officials at all levels of government to "pass the buck" on enforcement issues, distract and divert federal law enforcement from actual human trafficking and other responsi­bilities that are inherently federal in nature, and detract from states' ability to function as "laborato­ries of democracy." Few if any gains would be real­ized because prostitution and related activities are illegal in nearly all states and jurisdictions, and existing enforcement is both diligent and extensive.

Brian W. Walsh is Senior Legal Research Fellow in the Center for Legal and Judicial Studies and Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.