Article 8 – Prohibition of Slavery

195. Slavery and involuntary servitude. Abolition of the institution of slavery in the United States dates from President Lincoln’s Emancipation Proclamation, effective in 1863, and the Thirteenth Amendment to the U.S. Constitution adopted in 1865. The Thirteenth Amendment also prohibits the holding of a person in involuntary servitude. DOJ prosecutes involuntary servitude cases under statutes designed to implement the Thirteenth Amendment, 18 U.S.C. sections 1581 (peonage), 1584 (involuntary servitude), 1589 (forced labor), and under 18 U.S.C. 241, which criminalizes conspiracies to interfere with the exercise of constitutional rights. In this context, 18 U.S.C. 241 criminalizes conspiracies to interfere with a person’s Thirteenth Amendment right to be free from involuntary servitude.

• 
  Peonage: Section 1581 of Title 18 makes it unlawful to hold a person in “debt servitude,” or peonage, which is closely related to involuntary servitude. Section 1581 prohibits using force, the threat of force, or the threat of legal coercion to compel a person to work against his/her will. In addition, the victim’s involuntary servitude must be tied to the payment of a debt.
  
• 
  Involuntary Servitude: Section 1584 of Title 18 makes it unlawful to hold a person in a condition of involuntary servitude, i.e., a condition of compulsory service or labor against his/her will. A section 1584 conviction requires that the victim be held against his/her will with actual force, threats of force, or threats of legal coercion. Section 1584 also prohibits compelling a person to work against his/her will by creating a “climate of fear” through the use of force, the threat of force, or the threat of legal coercion, which is sufficient to compel service against a person’s will.
  
• 
  Forced Labor: Section 1589 of Title 18, which was enacted as part of the TVPA, makes it unlawful to provide or obtain the labor or services of a person through certain prohibited means. Congress enacted section 1589 in response to the Supreme Court’s decision in United States v. Kozminski, 487 U.S. 931 (1988), which interpreted section 1584 to require the use or threatened use of physical or legal coercion, but held that the age, mental competency, or other specific characteristics of a victim may be relevant in determining whether a particular type or a certain degree of physical or legal coercion is sufficient to hold that victim to involuntary servitude. Id. at 948.
  
• 
  Trafficking with respect to peonage, slavery, involuntary servitude, or forced labor: 18 U.S.C. 1590 makes it unlawful to knowingly recruit, harbor, transport, provide or obtain persons for labor or services under conditions that violate any of the offenses contained in Chapter 77 of Title 18.
  
• 
  Sex trafficking of children by force, fraud, or coercion: Section 1591 criminalizes sex trafficking, which is defined as causing a person to engage in a commercial sex act if the person is not yet 18 years of age or through use of force, threats of force, fraud, or coercion, or any combination thereof. A commercial sex act means any sex act on account of which anything of value is given to or received by any person. The specific elements are the use of force, fraud, or coercion, or conduct involving persons under the age of 18.
  
• 
  Unlawful conduct with respect to documents in furtherance of trafficking, peonage, slavery, involuntary servitude, or forced labor: Section 1592 makes it illegal to seize documents in order to force others to work. By expanding its coverage to false documents as well as official documents, this section recognizes that victims are often immobilized by the withholding of whatever documents they possess, even if the documents are forged or fraudulent. This section expands the scope of federal trafficking statutes to reach those who prey on the vulnerabilities of immigrant victims, whether legal or illegal, by controlling their papers.
  

198. Prosecutions. the Criminal Section of DOJ/CRD has primary enforcement responsibility for cases involving involuntary servitude, forced labor and trafficking. That section, which includes a specialized Human Trafficking Prosecution Unit, has successfully prosecuted crimes in agricultural fields, sweatshops, suburban homes, brothels, escort services, bars, and strip clubs, in partnership with U.S. Attorney’s Offices. In recent years, due to enhanced criminal statutes, victim-protection provisions, and public awareness programs introduced by the Trafficking Victims Protection Act of 2000, as well as sustained dedication to combating human trafficking, the numbers of trafficking investigations and prosecutions have increased dramatically. In fiscal years 2006 through 2010, DOJ/CRD and the U.S. Attorneys’ Offices prosecuted 198 trafficking cases involving 494 defendants. In fiscal year 2010, DOJ/CRD and U.S. Attorneys’ Offices brought a record number of trafficking cases, including a record number of labor trafficking cases. The cases have resulted in 382 convictions and guilty pleas during the 2006 through 2010 period.⁵

• 
  In September 2010, a federal grand jury charged six defendants with holding approximately 600 Thai national agricultural guest workers in forced labor, conspiring to do so, and document servitude. According to the indictment, which is only an allegation, the defendants devised a scheme to obtain the labor of Thai nationals by targeting impoverished Thai nationals and enticing them to come to the United States with false promises of lucrative jobs, and then maintaining their labor at farms in Hawaii and throughout the United States through threats of serious economic harm. The defendants arranged for the Thai workers to pay high recruitment fees, which were financed by debts secured with the workers’ family property and homes. Significant portions of these fees went to the defendants themselves. After arrival in the United States, the defendants confiscated the victims’ passports and failed to honor the employment contracts. The defendants maintained the victims’ labor by threatening to send the victims back to Thailand if they did not work for the defendants, knowing that the victims would face serious economic harms created by the debts. In January 2011, a grand jury brought additional charges against the six defendants and two additional defendants, and increased the victim class to 600. So far in 2011, three of the eight defendants have pleaded guilty to the forced labor conspiracy. United States v. Orian, et al.
  
• 
  A federal jury convicted a husband and wife in February 2010 on charges of conspiracy, forced labor, document servitude, harboring for financial gain, and lying to an FBI agent. The court sentenced the husband to twenty years in prison and the wife to nine years in prison, to be followed by her deportation back to Nigeria. The court ordered the defendants to pay the victim $303,000 in restitution. The defendants lured the victim, an impoverished, widowed Nigerian national, on false promises to provide for her six children, including a seriously ill child, and lucrative pay, and then compelled the victim to work for them for eight years during which she worked at least six days a week for sixteen hours a day. In total, the defendants paid the victim only $300. Defendants employed a scheme of confiscating and withholding the victim’s documents, restricting her freedom of movement, isolating and controlling her communications, and verbally abusing her. The husband began sexually abusing the victim a few weeks after she arrived. United States v. Nnaji.
  
• 
  In October 2010, Abrorkhodja Askarkhodjaev pleaded guilty to charges arising from his role as the leader of a multi-defendant organized criminal enterprise that engaged in numerous criminal activities including forced labor, fraud in foreign labor contracting, visa fraud, mail fraud, identity theft, tax evasion and money laundering. As leader of the Giant Labor Solutions criminal enterprise, Askarkhodjaev arranged for the recruitment and exploitation of approximately 75 foreign national workers. Many of these workers were recruited with false promises related to the terms, conditions, and nature of their employment. Once the workers were brought to the United States, the enterprise maintained their labor through threats of deportation and other adverse immigration consequences. Co-defendant Kristin Dougherty was convicted by a jury of racketeering, racketeering conspiracy, and other offenses. Multiple co-defendants had also previously pleaded guilty in connection with the case. Askarkhodjaev was sentenced to 12 years’ imprisonment and ordered to pay over $1,000,000 in restitution. Askarkhodjaev will be deported from the U.S. following his term of imprisonment. United States v. Askarkhodjaev, et al.
  
• 
  Six men were involved in a scheme to compel the labor of Mexican and Guatemalan nationals as farm workers in an area near Ft. Myers, Florida. All six defendants pleaded guilty to charges of harboring for financial gain. Additionally, two of them pleaded guilty to beating, threatening, and restraining workers to force them to work as agricultural laborers. In December 2008, two of the defendants were sentenced to 12 years in prison; they, along with the other four defendants, were ordered to pay over $200,000 in restitution to the victims. U.S. v. Navarrete.
  
• 
  Two brothers, Victor Omar Lopez and Oscar Mondragon, and co-conspirators were involved in a scheme to smuggle young Central American women into the United States and to use threats of harm to their relatives to compel them into service in bars, restaurants, and cantinas. All eight defendants pleaded guilty to various federal human trafficking and related charges. Two were sentenced to serve 180 months in prison, one was sentenced to 156 months, one to 109 months, one to 84 months, one to probation, and two to time served. The defendants were also required to pay a total of $1.7 million in restitution to the victims. U.S. v. Mondragon.
  
• 
  In October 2009, a defendant was convicted on twenty-two counts, including multiple counts of forced labor, in connection with a scheme to compel young West African girls into service in hairbraiding salons in New Jersey. U.S. v. Afolabi et al.
  
• 
  In New York, an Immigration and Customs Enforcement (ICE)-led investigation, in collaboration with the Government of Mexico, targeted a trafficking organization that smuggled young Mexican women into the United States and then subjected them to commercial sexual exploitation. Twenty-four women were forced into prostitution at various brothels on the East Coast through sexual and physical assaults and threats of violence against their children. Two lead traffickers were sentenced to 50 years in prison, and a third was sentenced to 25 years. The mother of the main defendants was arrested in Mexico and later extradited to the United States, where she was sentenced to 10 years in prison for her involvement in the scheme. U.S. v. Carreto et al.
  

201. From October 2005 through July 2011, the United States granted T visas to trafficking victims and family members as follows:

		VICTIMS			FAMILY OF VICTIMS			TOTALS
FISCAL YEAR		Applied	Approved*	Denied**	Applied	Approved*	Denied**	Applied	Approved*	Denied**
2005		379	113	321	34	73	21	413	186	342
2006		384	212	127	19	95	45	403	307	172
2007		269	287	106	24	257	64	293	544	170
2008		408	243	78	118	228	40	526	471	118
2009		475	313	77	235	273	54	710	586	131
2010	574		447	138	463	349	105	1,229	796	243
2011 thru July	804		437	181	622	572	116	1,426	1009	297
Total	4,154		2,475	1,176	3,233	2,394	521	7,579	4869	1697

* Some approvals and denials are from prior fiscal year(s) filings.

** Some applicants have been denied twice (i.e., filed once, denied, and then filed again).

202. A number of institutional structures exist to combat trafficking in persons, including forced labor. The TVPA authorized the President to establish the President’s Interagency Task Force to Monitor and Combat Trafficking (PITF), a cabinet-level task force to coordinate federal efforts to combat human trafficking. In 2003, a senior working level group, the Senior Policy Operating Group (SPOG), was created to coordinate interagency policy, grants, research, and planning issues involving international trafficking in persons and the implementation of the TVPA. DOJ continues to fund 39 anti-trafficking task forces nationwide to engage in a proactive, coordinated outreach effort to identify more victims and strengthen trafficking investigations and prosecutions. Each task force is comprised of federal, state, and local law enforcement investigators and prosecutors, labor enforcement officials, and a nongovernmental victim service provider. The Human Smuggling and Trafficking Center (HSTC), created by the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, serves as an intelligence information clearinghouse for all federal agencies addressing, human trafficking, human smuggling, and the facilitation of terrorist mobility. The HSTC conducts studies and prepares strategic reports for U.S. law enforcement and U.S. policy makers.

203. Pursuant to the TVPA Reauthorization Act of 2005, DOL’s Bureau of International Labor Affairs (DOL/ILAB) publishes a list of goods from countries ILAB has reason to believe are produced by forced or child labor in violation of international standards. The primary purpose of the list is to raise public awareness about the incidence of forced and child labor in the production of goods in the countries listed and, in turn, to promote efforts to eliminate such practices. When last updated in October 2011, the list included 130 goods from 71 countries.

204. Pursuant to Executive Order 13126, ILAB also publishes and maintains a list, in consultation with the Departments of State and Homeland Security, of products, by country of origin, which the three Departments have a reasonable basis to believe might have been mined, produced or manufactured by forced or indentured child labor. Under the procurement regulations implementing the Executive Order, federal contractors who supply products on the list must certify that they have made a good faith effort to determine whether forced or indentured child labor was used to produce the items listed. As of the last publication, October 2011, the list contains 23 countries and 31 products.

205. In addition, the U.S. Department of State’s Office to Monitor and Combat Trafficking in Persons (“the TIP Office”) leads the United States’ global engagement against human trafficking. Through the TIP Office, the Department of State represents the United States in the global fight to address human trafficking, partnering with foreign governments, international and inter-governmental organizations, and civil society to develop and implement effective strategies for confronting trafficking in persons. The TIP Office has responsibility for bilateral and multilateral diplomacy, targeted foreign assistance, public engagement, and specific projects on trafficking in persons. The Office also issues the annual Trafficking in Persons Report, which is the most comprehensive compilation of worldwide data on the effort of governments to combat severe forms of trafficking in persons. Since 2001, the number of countries included and ranked has more than doubled to include over 180 countries in the 2011 report, including the United States, which was ranked for the first time in the 2010 report. The report encourages progress in the fight against human trafficking through its recommendations and the later development of national action plans. As of the date of the report’s issuance, more than 120 countries had enacted legislation prohibiting human trafficking. Please see http://www.state.gov/g/tip/rls/tiprpt/2011/index.htm for more information and for a copy of the report.

206. This year the TIP Office will award approximately $16 million in federal funds to combat trafficking around the world and currently the TIP Office oversees projects in 71 countries totaling nearly $69 million. Other agencies also administer such programs; for example, during fiscal year 2010, the U.S. Agency for International Development spent approximately $16.5 million in fiscal year 2010 funds on over 20 projects in 24 countries – also global, regional, national, and local in scope. In addition, DOL’s Office of Forced Labor, Child Labor and Human Trafficking funds a number of programs that primarily address trafficking as one of the worst forms of child labor. Such projects include stand-alone human trafficking projects, but many include multi-faceted projects to address other worst forms of child labor in addition to trafficking.

207. More detailed information on these issues can be found in the Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons, Fiscal Year 2010; the United States narrative in the 2011 State Department Trafficking in Persons Report; and the January 2010 U.S. Report to the United Nations Committee on the Rights of the Child on the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography, www.state.gov/g/drl/hr/treaties/index.htm.

Article 9 – Liberty and security of person

208. Seizure and detention. Liberty and security of person is guaranteed by the U.S. Constitution and statutes. Under the Fifth and Fourteenth Amendments, no person may be deprived of liberty without due process of law; the Fourth Amendment protects all persons from unreasonable search and seizures (including seizures of persons) and provides that no warrants may issue except upon probable cause; and the Sixth Amendment provides that persons shall be informed of the nature and cause of accusations brought against them and guarantees speedy and public trials by an impartial jury in criminal cases. These protections also apply to the states under the Due Process clause of the Fourteenth Amendment. Detention pursuant to a statute believed to be unconstitutional or as a result of a procedure that allegedly violates a constitutional right may be challenged by a writ of habeas corpus in state and/or federal court. The basic outlines of such protections are described in the U.S. Initial ICCPR Report, and updated in the Second and Third Periodic Report.

209. Since the filing of the Second and Third Periodic Report, the U.S. Supreme Court has decided several cases related to liberty and security of person. In Safford Unified School District No. 1 v. Redding, 129 S. Ct. 2633 (2009), a 13-year-old middle school student, who was suspected of having brought forbidden prescription and over-the-counter drugs to school, contested the search of her underwear by school officials as violating her Fourth Amendment rights. The Court held that while school officials had sufficient suspicion to justify searching her backpack and outer clothing, they did not have sufficient suspicion to warrant extending the search to her underwear because there was no reason to suspect that the drugs presented a danger to students or were concealed in her underwear. Since the intrusiveness of the search was not justifiably related to the circumstances, the Court held that the search violated the Constitution. In another case, Brendlin v. California, 551 U.S. 249 (2007), the Court held that, in constitutional terms, a traffic stop entails a “seizure” even though the purpose of the stop is limited and the resulting detention quite brief. Thus, a passenger in the automobile was “seized” under the Fourth Amendment from the moment the automobile came to a halt on the roadside, and was therefore entitled to challenge the constitutionality of the traffic stop.

210. Of defendants subject to state felony charges in the nation’s 75 most populous counties in 2006, an estimated 58 percent were released (on bail, bond, recognizance, or other conditional release) by the court prior to the disposition of their cases. Forty-two percent were detained until case disposition, including 5 % who were denied bail. Murder defendants (8 %) were the least likely to be released prior to case disposition, followed by defendants whose most serious arrest charge was robbery (39 %), burglary (44 %), or motor vehicle theft (44 %). Less than half of the defendants with an active criminal justice status, such as parole (14 %) or probation (34 %), were released, compared to 65 % of those with no active status.

211. Detention to secure the presence of a witness. Federal law permits detention of a person to secure his or her presence as a material witness at an upcoming trial, see 18 U.S.C. 3144. As noted in the Second and Third Periodic Report, the Court of Appeals for the Second Circuit has extended this authority to grand jury witnesses as well. A material witness warrant is issued by a neutral judge, only after finding that there was an adequate showing that the person would have information making him or her a material witness to the criminal case, and that without the arrest warrant the person would be unlikely to appear at trial. Material witnesses enjoy the same constitutional right to pretrial release as other federal detainees, and federal law requires release if their testimony “can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.” 18 U.S.C. 3144. In Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), al-Kidd argued that his arrest and detention as a material witness violated his Fourth Amendment rights because he claimed the real purpose of holding him was in furtherance of a criminal investigation. The Supreme Court reversed a lower court ruling allowing the case to proceed against the former Attorney General. The Court explained that because “al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation.” If a person subject to a material arrest warrant believes the warrant is not justified, he may seek review by the judge presiding over the criminal case or attempt to seek habeas review.

212. Juvenile sentences of life without parole. Currently apprximately 2,500 juveniles are serving life without parole sentences in the United States. The United States Supreme Court recently held that the Eighth Amendment prohibits the sentencing of a juvenile offender to life in prison without parole for a crime other than a homicide-related crime, as such a sentence would constitute cruel and unusual punishment. Graham v. Florida, 130 S. Ct. 2011 (2010). In this case, the court used reasoning similar to that used in death penalty cases that turned on characteristics of the offender, i.e., Roper v. Simmons, 543 U.S. 551 (2005), which prohibited the death penalty for defendants who committed their crimes before the age of 18, and Atkins v. Virginia, 536 U.S. 304 (2002), which dealt with individuals with intellectual disabilities (referred to by the Court as individuals with mental retardation). The Court in Graham found a national consensus that established that life without parole for non-homicide-related juvenile offences was cruel and unusual punishment – noting that reportedly there were only 109 individuals serving such sentences in the United States, with 77 of those in Florida. The Court found further support for this conclusion from the fact that countries around the world overwhelmingly have rejected sentencing juveniles to life without parole. The Court observed that juvenile life imprisonment without parole is prohibited by the Convention on the Rights of the Child, to which many states are party, although the United States has signed but not ratified it. While recognizing that the judgments of other nations and the international community are not dispositive as to the meaning of the Cruel and Unusual Punishments Clause, the Court observed that in prior cases it has “looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual.” 130 S.Ct. at 2033.

213. Detention of aliens. As further discussed under Article 13, the Immigration and Nationality Act (“INA”) provides authority for the detention or release of aliens during immigration proceedings. Mandatory detention categories include certain criminal aliens and certain aliens who pose a threat to national security. See 8 U.S.C. 1226 (a), (c), 1225(b). Aliens who are not subject to the mandatory detention requirements may be released by the Secretary of Homeland Security on conditions, including bond, if they do not pose a flight risk or danger to the public. In general, aliens who have been admitted to the United States may challenge the Secretary’s custody determination or that they are subject to a mandatory detention category in a hearing before an immigration judge. See 8 U.S.C. 1226 (a); 8 C.F.R. 236.1, 1236.1, 1003.19. Once an alien has been ordered removed from the United States, detention is mandatory for a 90-day period pending removal for most criminal aliens and those who pose a national security risk. 8 U.S.C. 1231(a) (1), (2). After the initial 90-day period, an alien may be detained for an additional period on a discretionary basis, or the alien may be released on conditions if he or she does not pose a flight risk or danger to the public. 8 U.S.C. 1231(a) (3), (6). If, after 180 days post-order detention, an alien’s removal is not significantly likely in the reasonably foreseeable future, the alien must be released, with certain limited exceptions. See Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371 (2005); 8 C.F.R. 241.13-14.

214. In December 2009, Immigration and Customs Enforcement (ICE) issued new guidelines concerning the release from detention of aliens arriving in the United States at ports-of-entry who are without proper identity and entry documents, but who have a credible fear of persecution or torture. These revised guidelines state that ICE officers should “parole” arriving aliens found to have a credible fear who establish their identities, pose neither a flight risk nor a danger to the community, and have no additional factors that weigh against their release. Asylum offices disseminate the information notice, “How to Seek Release from Detention: Parole Eligibility and Process for Certain Asylum Applicants,” to arriving aliens found to have a credible fear. This notice is translated into the top eight languages spoken by credible fear port-of-entry claimants (currently, Amharic, Arabic, Chinese (Mandarin-simplified), Creole, French, Somali, Spanish, and Tigrinya). The procedures also mandate that all arriving aliens found to have a credible fear should be automatically considered for parole without having to make individual written requests for parole, and they add heightened quality assurance safeguards, including monthly reporting by ICE field offices and headquarters analysis of parole rates and decision-making. The revisions to the parole guidelines were informed in part by recommendations from the United Nations High Commissioner for Refugees and nongovernmental organizations.

215. Habeas corpus. As noted in the Second and Third Periodic Report, and as discussed further under Article 14 in this report, under federal and state law the writ of habeas corpus can be used to collaterally review a final conviction (in addition to the statutory right to appeal one’s conviction) as well as to challenge execution of a sentence or to challenge as unlawful confinement that does not result from a criminal conviction, such as the commitment into custody for mental incompetence or detention for immigration reasons. INS v. St. Cyr, 533 U.S. 289 (2001).

216. Habeas corpus relief has been held to be available to those detained outside the United States in some situations. In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that constitutional habeas corpus review was available to those detained by the Department of Defense at Guantanamo Bay. This decision and the resulting habeas proceedings are discussed further in Part III, Committee Concluding Observations. In Munaf v. Geren, 553 U.S. 674 (2008), the Supreme Court held that the U.S. habeas corpus statute extends to U.S. citizens held overseas by U.S. forces, while also ruling that habeas relief is governed by equitable principles, and that habeas jurisdiction could not be exercised to enjoin the United States from transferring individuals to a foreign sovereign for criminal trial in the context of that case, where the individuals were detained within the territory of a foreign sovereign on behalf of that sovereign pending their criminal prosecution, and where the United States government had a firm commitment not to transfer individuals if they were more likely than not to face torture. On the other hand, in Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), a federal appellate court held that constitutional habeas corpus jurisdiction did not extend to aliens held in law of war detention in the Bagram detention facility in Afghanistan. The court relied on the facts, inter alia, that the United States exercises less control in Afghanistan than in Guantanamo, and that Bagram is located in an active theater of armed conflict.