The Growth of Federal Criminal Justice Policy Making

Background

The federal criminal justice role has evolved since the beginning of the nation, but especially since the 1960s with the increase in the number of federal crimes. The Constitution specifically mentions three areas of federal criminal justice responsibility: (a) counterfeiting securities and currency, (b) piracy and felonies committed on the high seas and offenses against the law of nations, and (c) treason. Since the Civil War, but especially since the 1960s, the federal government’s crime control efforts have expanded. Congress has responded to public concern over organized crime, street violence, drugs, and other social problems by passing new federal criminal laws and penalties.

Traditionally, Congress has primarily used two powers of the federal government—the interstate commerce clause and the power to tax—to expand the number and types of crimes and violations that the federal government investigates and prosecutes. For example, using its authority to regulate interstate commerce, Congress enacted the “White Slave Traffic Act,” more commonly known as the “Mann Act,” in 1910. The act prohibited the interstate transportation of a woman or a girl for the purpose of causing her to “give herself up to debauchery, or to engage in any other immoral practice” (Wallace, 1993, p. 10). Federal powers of taxation were used to regulate narcotics. The Harrison Narcotics Act of 1914, the first major federal drug control legislation with fines and imprisonment as penalties for noncompliance, was, in part, enacted to establish domestic legislation consistent with U.S. international anti-narcotics efforts (Musto, 1987).

Nevertheless, it should be underscored that federalizing a crime does not mean that the particular crime has been nationalized, nor does it eliminate the responsibility of state and local law enforcement to enforce existing state and local laws. While expansions of federal criminal justice responsibilities have sometimes overlapped or jurisdictional lines have blurred among the federal, state, and local governments, implementation of federal anti-crime laws is carried out by federal law enforcement agencies and through the federal courts. For example, sending a weapon through the mail is a federal crime, but all gun-related crimes are not federal and may remain subject to state and local variation and law enforcement. Enacting federal death penalty legislation does not nationalize the death penalty, but provides for a federal response to certain federal crimes (e.g., hijacking when a death occurs or drug kingpins). Each state legislature determines whether or not to institute capital punishment, and if so, establishes the crimes for and conditions under which such a penalty may be imposed.

In recent years, Congress has also used a third federal power—the “power of the purse”—to expand the federal criminal justice role by affecting state and local criminal justice policies across the country. This approach has included both the carrot and the stick. To promote certain policies or programs, the federal government may provide grants-in-aid to the states and/or localities to carry out good criminal justice policies or practices—carrot (e.g., providing funds to educate local law enforcement or implement drug treatment or education programs). Or, the federal government may support or encourage state and local action by making federal funds contingent on the states and/or localities doing or not doing something—the stick (e.g., threatening to withdraw state highway funds if drugged driving laws are not enacted). The Law Enforcement Assistance Administration and its successors, most recently the agencies comprising the Office of Justice Programs, have provided assistance to state and local criminal justice agencies since the late 1960s, thereby expanding the federal role in the state and local administration of criminal justice.

It should be noted, however, that the expansion of the federal criminal justice role has not been heralded from all quarters. For example, a 1998 commission, sponsored by the American Bar Association, reported that whatever the exact number of crimes that comprise today’s “federal criminal law,” it is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades (The American Bar Association, 1998, p. 10). And, in the “face of serious and offensive incidents, it is becoming more and more frequent for citizens and legislators to simply urge that Congress should make the conduct a federal crime.” Moreover, fluctuations in the availability of federal funds to support state and local criminal justice initiatives also suggest differing congressional views as to the federal criminal justice role relative to states and localities. The purpose of this article is not to argue the efficacy of using federal law to address criminal justice concerns, but to examine this expansion through the use of civil rights legislation.

Federal authority to protect the civil rights of citizens has been applied by the federal courts and Congress to expand the federal criminal justice role by establishing new federal crimes and affect state and local criminal justice policy and practice by legislatively providing models of good criminal justice policy and practice. The evolution of the rights of all criminal defendants, including the right to an attorney, protection against self incrimination, and prohibition of unlawful search and seizure are well-documented in the legal and criminal justice literature (see, for example, Kadish & Paulsen, 1969; Marion, 1994; Robbins, 1980). The Supreme Court extended these protections through a series of decisions, applying the due process clause of the 14th amendment (Kadish & Paulsen, 1969). These actions are not the subject of this article. In addition, Congress has passed criminal justice legislation rooted in constitutional authority to protect the civil rights of citizens, including the 13th amendment, abolishing slavery and involuntary servitude, and the 14th amendment (Landsberg, 1997). ¹ Among the issues addressed through this legislation are trafficking in persons; the constitutional rights of institutionalized persons, including those housed in prisons, jails, and juvenile correctional facilities; and the conduct of law enforcement agencies, among others. These laws, which are currently enforced by the Civil Rights Division of the Department of Justice (DOJ), are the focus of this article.

Framework

Laws, including criminal and civil rights statutes, are products of the policy-making process. Furthermore, any legislation, in reality, is both instrumental (tangible) and expressive (symbolic) (Chandler, 1976; Stolz, 1983). Accordingly, this framework will be used to analyze the statutes discussed in this article.

Instrumentally, legislation is intended to produce some effect, a means to an end (Chandler, 1976). Political scientists typically study U.S. legislation from the perspective of who gets what, when, and how (Dahl, 1961; Greenwald, 1977; Huitt & Peabody, 1969; Key, 1964; Truman, 1951). Such research usually focuses on how interest groups use the policy-making process to achieve a variety of tangible rewards. Federal agencies, however, may also seek tangible effects legislatively. In the criminal justice area, the tangible results of enforcing a particular criminal law may be indicated by the number of investigations opened or cases filed. Depending on the statute, civil rights legislation may involve civil remedies or criminal prosecutions.

Applying the symbolic framework to legislation extends our understanding of policy making beyond that of resolving competing interests and achieving tangible results (Stolz, 2002). The symbolic politics framework focuses attention on policy makers and audiences to whom they direct their legislative attention. Analyzing political acts, as symbols, usually focuses attention on the general public as the audience toward which political acts are directed and assumes that the audience’s perception of and/or reaction to the act is more important than its substance (Edelman, 1964; Gusfield, 1986). Political acts may also be directed toward a special public as audience, including state and local governments (Stolz, 1983, 1985, 2002, 2007). Political actions are viewed as symbols that serve to reassure or threaten, communicate a message, or educate the public or a special audience (Stolz, 2002). Symbolic policies are those in which government is acting to appease public concerns without necessarily directly or substantively addressing underlying problems (Oliver & Marion, 2008).

Criminal justice legislation has been found to perform a number of symbolic functions (Marion, 1995). For example, criminal laws and criminal justice policy may (a) reassure the public by communicating to the law-abiding that something is being done about a crime problem, (b) serve a moral educative function for both the law-abiding and the lawbreaker by drawing a line between right and wrong behavior, and (c) provide a model of good policy for the states (Baker & Meyers, 1980; Stolz, 1983, 1985, 2002, 2007).

Specifically, by passing legislation, lawmakers may reassure the public that steps are being taken to address a social issue or problem and send a threat to the potential lawbreaker (Stolz, 2002, 2007). Criminal justice legislation also fulfills a moral educative function for the lawbreaker and the law-abiding by communicating the line between right and wrong behavior and between the law-abiding and lawbreaker (Durkheim, 1966; Stolz, 1983, 1985, 2005, 2007). The association of negative consequences with certain behavior leads people to believe that the behavior is bad (Zimring & Hawkins, 1973). In addition, federal legislation may communicate a message to state and local agencies, as a special audience, regarding what is acceptable practice (e.g., law enforcement or corrections practices). Federal death penalty legislation may provide states with a model of “rational criteria” for imposing the death penalty, or the practices of the Federal Bureau of Prisons may be presented to the states as a model of enlightened correctional policies (Stolz, 1983, pp. 170-171). The analysis of federal statutes addressing trafficking in persons; the civil rights of persons institutionalized in adult and juvenile correctional systems; and the conduct of law enforcement, presented in this article, focuses specifically on the moral educative and model to the states.

Method

To identify federal civil rights statutes that have expanded federal criminal justice roles, the author reviewed statutes listed on the DOJ, Civil Rights Division’s web page. Specifically, this review focused on the statutes enforced by the Division’s Criminal Section, which prosecutes criminal cases (e.g., hate crimes, human trafficking, and intentional acts by law enforcement officers to use their positions to unlawfully deprive individuals of constitutional rights) and the Special Litigation Section, whose statutory responsibilities include institutional conditions and the conduct of law enforcement agencies. This article does not purport to identify all federal civil rights statutes that established new federal crimes or affected state and local policy and practice, but to provide illustrative examples of such statutes.

To demonstrate how civil rights statutes have expanded the federal criminal justice role, the author selected federal statutes in three areas enforced by Criminal Section and Special Litigation Section for further analysis. The analysis of the selected federal civil rights statutes, in part, synthesizes information from the author’s earlier research (Stolz, 2005, 2007; U.S. Government Accountability Office [GAO], 2007, 2009). Specifically, the analysis focuses on the Trafficking Victims Protection Act (TVPA) of 2000, Civil Rights of Institutionalized Persons Act (CRIPA), and Violent Crime Control and Law Enforcement Act of 1994, 14141. The statutes analyzed were selected because they are rooted in different federal civil rights authorities (i.e., different amendments to the Constitution), differ in the scope of the federal role, and vary in the type of violation and how the law is enforced. In addition, systematically collected and independently evaluated data were available to support the analysis of the instrumental function, demonstrating the expansion of the federal criminal justice role. Furthermore, these statutes could be analyzed from a symbolic perspective, illustrating how federal criminal laws can affect state and local criminal justice systems by defining and providing models of good policy and practice.

The case data presented in this article are used as evidence of the Justice Department’s enforcement of federal civil rights statutes over time. That is, the prosecution of trafficking in persons cases, agreements and cases filed to address conditions in adult correctional facilities, and investigations of state and local law enforcement agencies demonstrate that these statutes are being enforced, thereby performing an instrumental function.

Specifically, 2007 and 2009 GAO reports provide systematically collected and independently analyzed data on pertinent cases pursued by the Criminal Section and Special Litigation Section, respectively (U.S. GAO, 2007, 2009). The 2007 GAO report presents data on the number of trafficking in persons cases prosecuted by the Criminal Section and the U.S. Attorneys from 2001 through June 2007, subsequent to the implementation of the 2000 anti-trafficking in persons legislation. According to the report, the section reported an overall increase in the number of prosecutions for cases involving sex and labor trafficking, as defined by the section based on the facts of the case (U.S. GAO, 2007). The 2009 GAO report describes the enforcement efforts of the Special Litigation Section from fiscal years 2001 through 2007, identified from the Civil Rights Division’s Interactive Case Management (ICM) System. ² As part of this analysis, GAO took actions to assess the reliability of the ICM data to ensure that they were sufficiently reliable for the purposes of the study (U.S. GAO, 2009). ICM data are not publicly available; therefore, this author chose to use the GAO data as an independent source of information on cases pursued by the Department. To show that the Justice Department continued to pursue human trafficking cases and violations of the constitutional rights of institutionalized persons, as well as enforcing the other statutes discussed in this article, data from department reports were also analyzed (U.S. DOJ, 2002, 2003, 2004, 2005, 2006a, 2006b, 2007, 2010b, 2010c, 2012a, 2012b, 2013a, 2013b).

To determine the impetus for the congressional action that led to the passage of the selected statutes discussed in detail in this article, the author prepared brief cases studies describing the legislative development of each. This information was used in the analysis of the instrumental and symbolic functions of the statutes. To develop each case study, the author reviewed (a) the underlying legal authority of each statute, (b) relevant congressional hearings (Civil Rights of the Institutionalized, 1979; Combating Trafficking in Persons, 2005; Examining U.S. Efforts to Combat Human Trafficking and Slavery, 2004; Federal Response to Police Misconduct, 1992; Hate Crime Statistics Act of 1988, 1992; Implementation of the Victims of Trafficking Protection Act, 2001; International Trafficking in Women and Children, 2000; Monitoring and Combating Trafficking in Persons, 2002; The Ongoing Tragedy of International Slavery and Human Trafficking, 2003; State of the Judiciary and Access to Justice, 1977; Trafficking in Persons, 2004; Trafficking of Women and Children in the International Sex Trade, 1999), (c) committee reports (H. Rep. No. 96-897, 1980; H. Rep. No. 96-80, 1979; H. Rep. No. 99-208, 1985; H. Rep. No. 100-575, 1988; H. Conference Rep. to Accompany H.R. 3355, 1994; S. Rep. No. 96-416, 1979) associated with development of each law, and (d) legislative proposals that led to the final legislation. In addition, to prepare the trafficking in persons case study, congressional staff who worked on the legislation for Democratic and Republic members, White House and federal agency staff who were involved in efforts to address the issue, and representatives of interest groups with diverse views on trafficking were interviewed using a semi-structured questionnaire that included questions on the development of the 2000 anti-trafficking legislation. As agreed to in advance of the interview, all information was provided on background. Statements were considered to be the opinion of the interviewee and not the official position of the agency or organization (see Stolz, 2007).

To interpret the legislative initiatives and enforcement results, Justice Department reports on the implementation of the legislation were reviewed (U.S. DOJ, 2002, 2003, 2004, 2005, 2006a, 2006b, 2007, 2010a, 2010b, 2010c, 2012a, 2012b, 2013a). These reports included information on the types of cases pursued under the selected statutes. In addition, cognizant Justice Department officials were interviewed regarding actions taken to enforce these statutes. Interview information was generally used in conjunction with written documentation. No direct references to these interviews are made in the text.

Federal Civil Rights Statutes Enforced by DOJ Civil Rights Division Impacting Criminal Justice Policy: Identifying the Statutes

Analysis of the enforcement responsibilities of the Criminal and Special Litigation Sections reveals a number of statutes, rooted in federal civil rights authority, that impact not only federal but also state and local criminal justice policy and practice. According to Landsberg (1997), the Reconstruction amendments that created rights designed to afford liberty, citizenship, equal treatment at the hands of the state, and equality to the newly freed slaves, greatly expanded Congress’s power. The amendments changed the relationship of the federal and statement governments in three ways. First, Congress could regulate state practices and the enforcement clauses provided a firmer basis for such legislation than, for example, the Interstate Commerce Clause. Second, the 13th amendment applied not only to state but also to private action. Third, the Supreme Court in Carolene Products (1938) recognized that congressional treatment of some issues, including racial discrimination, was justified because these types of issues warranted a higher standard of review when passing on the constitutionality of some state laws. ³ Statutes rooted in the 14th amendment extend equal protection and due process (Landsberg, 1997).

Table 1 identifies examples of federal civil rights statutes that have expanded the federal criminal justice role and the underlying authority of each statute.

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Table 1.

Examples of Civil Rights Statutes Expanding Federal Criminal Justice Role by Authority.

Statute	Authority
Peonage, 18 U.S.C. § 1581	13th amendment
Involuntary Servitude, 18 U.S.C. § 1584	13th amendment
Forced Labor, 18 U.S.C. § 1589	13th amendment
Trafficking with Respect to Peonage, Slavery, Involuntary Servitude, or Forced Labor, 18 U.S.C. § 1590	13th amendment
Sex Trafficking of Children or by Force, Fraud, or Coercion, 18 U.S.C. § 1591	13th amendment
Unlawful Conduct with Respect to Documents in Furtherance of Trafficking, Peonage, Slavery, Involuntary Servitude, or Forced Labor 18 U.S.C. § 1592	13th amendment
The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249	13th amendment, interstate commerce clause, power of the purse
Deprivation of Rights Under Color of Law, 18 U.S.C. § 242.(1968)	Pattern or practice of denial of rights by officials, including police officers, prisons guards, and other law enforcement officials, as well as judges 14th amendment
The CRIPA, 42 U.S.C. § 1997a et seq	Section 5 of the 14th amendment—specifically authorizes Congress to “enforce, by appropriate legislation, the provision of this article.” Limited to enforcement against the state of those laws governing state conduct that Congress has constitutional authority to prescribe (S. Rep. No. 96-416, 1979, p. 24).
The Violent Crime Control and Law Enforcement Act of 1994—juvenile justice systems	14th amendment—Pattern or practice of conduct by administrators in juvenile justice system. Similar to CRIPA, but Attorney General approval is not required.
Violent Crime Control and Law Enforcement Act of 1994—reform of police departments violating civil rights	14th amendment—Pattern or practice of conduct by law enforcement officers that deprives persons of their institutional or federal rights.
Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964—discrimination by law enforcement departments	14th amendment

Source: Civil Rights components at www.usdoj.gov and S. Rep. No. 96-416 (1979, p. 24).

Note: U.S.C. = U.S. Code; CRIPA = Civil Rights of Institutionalized Persons Act.

Federal civil rights statutes directed toward addressing criminal justice issues have evolved over time. Prior to 2001, Sections 1581 and 1584 of Title 18 of the U.S. Code (USC), which criminalize peonage and involuntary servitude, respectively, were the primary statutes prosecutors used in involuntary servitude and human trafficking cases. These statutes have been a priority of the Civil Rights Division for decades (U.S. DOJ, 2005). The trafficking in persons, civil rights of institutionalized persons, color of law, and hate crimes statutes are more recent, dating from the 1960s. ⁴

As described in Table 2, the selected civil rights statutes differ in a number of ways.

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Table 2.

Criminal and Civil Rights Statutes Expanding Federal Criminal Justice Role.

Statute	Type of statute	Description
Peonage, 18 U.S.C. § 1581	Criminal	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 or her will. In addition, the victim’s involuntary servitude must be tied to the payment of a debt.
Involuntary Servitude, 18 U.S.C. § 1584	Criminal	Section 1584 of Title 18 makes it unlawful to hold a person in a condition of slavery, that is, a condition of compulsory service or labor against his or her will. A Section 1584 conviction requires that the victim be held against his or her will by actual force, threats of force, or threats of legal coercion. Section 1584 also prohibits compelling a person to work against his or her will by creating a “climate of fear” through the use of force, the threat of force, or the threat of legal coercion (i.e., If you do not work, I’ll call the immigration officials), which is sufficient to compel service against a person’s will.
Forced Labor, 18 U.S.C. § 1589	Criminal	Section 1589 of Title 18, which was passed as part of the TVPA, makes it unlawful to provide or obtain the labor or services of a person through one of three prohibited means. Congress enacted § 1589 in response to the Supreme Court’s decision in United States v. Kozminski, 487 U.S. 931 (1988), which interpreted § 1584 to require the use or threatened use of physical or legal coercion. Section 1589 broadens the definition of the kinds of coercion that might result in forced labor.
Trafficking with Respect to Peonage, Slavery, Involuntary Servitude, or Forced Labor, 18 U.S.C. § 1590	Criminal	Section 1590 makes it unlawful to recruit, harbor, transport, or broker persons for labor or services under conditions which violate any of the offenses contained in Chapter 77 of Title 18.
Sex Trafficking of Children or by Force, Fraud, or Coercion, 18 U.S.C. § 1591	Criminal	Section 1591 criminalizes sex trafficking, which is defined as causing a person to engage in a commercial sex act under certain statutorily enumerated conditions. 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 conditions are the use of force, fraud, or coercion, or conduct involving persons below the age of 18. The punishment for conduct that either involves a victim who is below the age of 14 or involves force, fraud, or coercion is any term of years or life. The punishment for conduct that involves a victim between the ages of 14 and 18 is 40 years.
Unlawful Conduct with Respect to Documents in Furtherance of Trafficking, Peonage, Slavery, Involuntary Servitude, or Forced Labor, 18 U.S.C. § 1592	Criminal	Section 1592 makes it illegal to seize documents to force others to work. By expanding its coverage to false documents as well as official documents, § 1592 recognizes that victims are often immobilized by the withholding of whatever documents they possess, even if the documents are forged or fraudulent. Section 1592 expands the scope of federal trafficking statutes to reach those who prey on the vulnerabilities of immigrant victims by controlling their papers.
The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249	Criminal	Section 249 of Title (October 2009) created a new federal criminal prohibition against willfully causing bodily injury (or attempting to do so using fire, a firearm, or another dangerous weapon), when (a) the crime was committed because of the actual or perceived race, color, religion, national origin of any person, or (b) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction. The law also provides federal funding and technical assistance to state, local, and tribal jurisdictions to help them to more effectively investigate and prosecute hate crimes.
Deprivation of Rights Under Color of Law, 18 U.S.C. § 242	Criminal	This provision makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include not only acts done by federal, state, or local officials within their lawful authority but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his or her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards, and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status, or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending on the circumstances of the crime, and the resulting injury, if any.
The CRIPA, 42 U.S.C. § 1997a et seq. (1980)	Civil	CRIPA protects the constitutional and federal statutory rights of persons confined in certain institutions operated by, or on behalf of state or local governments (e.g., juvenile correctional facilities and for constitutional violations only with respect to prisons, jails, and correctional facilities) by providing the Attorney General with the authority to bring lawsuits where there is a pattern or practice of egregious and flagrant conditions that deprive institutionalized persons of their federal or constitutional rights.
The Violent Crime Control and Law Enforcement Act of 1994	Civil	14141 authorizes the Attorney General to bring suit when administrators of juvenile justice systems engage in a pattern or practice of violating confined juveniles’ constitutional or federal rights.
Violent Crime Control and Law Enforcement Act of 1994	Civil	14141 authorizes the Attorney General to bring suit where law enforcement agencies have engaged in a pattern or practice of conduct that violates federal law.
Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964	Civil	Both statutes contain prohibitions on discrimination based on race, color, religion, national origin, or gender by law enforcement agencies receiving federal financial assistance.

Source: U.S. Department of Justice, www.usdoj.gov; U.S. GAO (2007); and U.S. GAO (2009).

Note: U.S.C. = U.S. Code; TVPA = Trafficking Victims Protection Act; CRIPA = Civil Rights of Institutionalized Persons Act; GAO = Government Accountability Office.

Specifically, these statutes may be criminal or civil. Modern civil rights laws have generally used civil rather than criminal mechanisms insofar as nonviolent deprivations of rights are concerned (Landsberg, 1997). The statutes also vary in terms of the type of violator. The statute may be directed toward an individual (e.g., the unlawful holding of a person in a condition of slavery), state and local officials (e.g., violations of residents’ federal rights in a prison, jail, or juvenile facility), or state and local systems (e.g., juvenile justice systems). Some statutes may not be used to pursue the violation of the rights on behalf of an individual, even repeated violations, or isolated instances of abuse. Generally, evidence of a pattern or practice of behavior—cases that attempt to show that the defendant systematically engaged in discriminatory activities—must be demonstrated before federal intervention. For example, the CRIPA provided the Attorney General with the authority to bring lawsuits where there is a pattern or practice of egregious and flagrant conditions that deprive institutionalized persons of their federal or constitutional rights. These distinctions are discussed in more detail in the context of the analysis of specific statutes.

Federal Civil Rights Statutes Enforced by DOJ Civil Rights Division Impacting Criminal Justice Policy: Analysis of Selected Statutes

Federal efforts to address trafficking in persons; the constitutional rights of persons confined in prisons, jails, correctional facilities or juvenile facilities; and behavior of law enforcement agencies that violates federal laws illustrate variations in the application of federal civil rights authority to criminal justice. As shown in Table 3, the three laws discussed in this section provide examples of civil and criminal mechanisms, are rooted in different authorities, differ in the scope of the federal role, and vary in the type of violator. Each of these federal laws, however, can be shown to perform both instrumental and symbolic functions. Analyzing the instrumental functions of these statutes demonstrates how these laws have expanded the federal criminal justice role by establishing new federal crimes and violations. Analyzing the symbolic functions of these laws, specifically the moral educative and model for the states functions, demonstrate how federal civil rights laws can affect state and local criminal justice systems by defining and providing models of good policy and practice.

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Table 3.

Description of Selected Federal Civil Rights Statutes Impacting Criminal Justice Policy and Enforced by DOJ Civil Rights Division.

Area of concern	Statute	Civil/criminal	Source of federal authority	Scope of federal role
Trafficking in persons	Trafficking with Respect to Peonage, Slavery, Involuntary Servitude, or Forced Labor, 18 U.S.C. § 1590 Sex Trafficking of Children or by Force, Fraud, or Coercion, 18 U.S.C. § 1591	Criminal	13th amendment	Individual offense
Civil Rights of persons in jails, prisons, or juvenile justice facilities or systems	The CRIPA, 42 U.S.C. § 1997a et seq The Violent Crime Control and Law Enforcement Act of 1994—juvenile institutions	Civil	14th amendment	Pattern or practice
Law enforcement	Violent Crime Control and Law Enforcement Act of 1994—law enforcement	Civil	14th amendment	Pattern or practice

Source: U.S. DOJ, www.usdoj.gov; U.S. GAO (2007); and U.S. GAO (2009).

Note: DOJ = Department of Justice; U.S.C. = U.S. Code; CRIPA = Civil Rights of Institutionalized Persons. Act; GAO = Government Accountability Office.

Trafficking in Persons

In 2000, Congress passed and the president signed into law the TVPA to combat trafficking in persons. Prior to this legislation, the DOJ had prosecuted trafficking cases under a number of federal criminal statutes. These statutes included involuntary servitude (18 USC §§ 1581-1588), the Mann Act (18 USC §§ 2421-2424), and labor laws on workplace conditions and compensation (29 USC § 1851; U.S. DOJ, 2006a). According to a 2009 GAO report, the DOJ prosecuted 19 trafficking in persons cases, including 7 sex trafficking and 12 labor trafficking cases, from fiscal years 1995 through 2000 (U.S. GAO, 2009).

During the late 1990s, U.S. policy makers realized that because the existing statutes and the tools available to prosecute these crimes did not take into account some characteristics of contemporary trafficking in persons, they did not adequately protect trafficking victims, deter trafficking, and bring traffickers to justice (Stolz, 2005; U.S. GAO, 2007). The anti-trafficking tools were scattered across the U.S. government resulting in different outcomes depending on which charges were brought or which agency pursued the allegations (U.S. DOJ, 2006a). Moreover, victims were not always treated as victims. According to the Mann Act, which was considered to be the primary federal anti-trafficking tool prior to 2001, trafficking was perceived as the interstate transportation for prostitution. Yet, contemporary trafficking may or may not involve transportation across national or state borders; rather, it is perceived to be a compelled service (U.S. DOJ, 2006a). Furthermore, as a result of the Supreme Court’s decision in United States v. Kozminski (1988), involuntary servitude was restricted to cases of physical abuse, as opposed to the psychological coercion often used by today’s traffickers (Stolz, 2005; U.S. GAO, 2007). Yet, victims are generally held through force or threats of force in situations of sexual exploitation or forced labor. Consequently, human trafficking offenses transgress the victims’ human liberty in violation of the 13th amendment guarantee of freedom (U.S. DOJ, 2005).

Through the provisions of the 2000 Trafficking in Persons Act, Congress and the White House sought to address gaps in existing law and enhance the tools available to pursue modern-day trafficking in persons offenses. The act criminalized the obtaining or maintaining of persons for commercial sexual activity, using force, fraud, or coercion for those aged 18 or above (but not for those below 18), ⁵ and to use certain kinds of force or coercion to provide or obtain persons for any labor or services (e.g., work in farms, factories, and households). It also included nonviolent coercion and threats of harm to third persons in federal involuntary servitude laws; made attempted trafficking crimes punishable; criminalized the holding of actual or purported identitydocuments in the course of committing, or with the intent to commit, any trafficking crime; and increased the maximum penalty for slavery and involuntary servitude offenses from 10 to 20 years or to a life sentence if the offense involved factors like death, kidnapping, or aggravated sexual abuse, among other things (U.S. GAO, 2007).

As evidenced by the prosecution of federal trafficking in persons cases, the TVPA has instrumentally expanded the federal criminal justice role. The Criminal Section of the Civil Rights Division has primary responsibility for prosecuting cases of trafficking for sex and labor. U.S. Attorneys’ Offices also pursue these cases. The number of cases varies from year to year, due in part to the complexity of the cases. Overall, the number of federal cases prosecuted increased from fiscal years 2001 through 2006, as shown in Table 4.

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Table 4.

Trafficking in Persons Prosecutorial Statistics for Civil Rights Division, Criminal Section, and U.S. Attorneys’ Offices, Fiscal Year 2001 Through 2006.

Fiscal year	2001	2002	2003	2004	2005	2006
Cases prosecuted
Sex trafficking	4	7	8	23	26	22
Labor trafficking	6	3	3	3	9	10
Total	10	10	11	26	35	32

Source: U.S. GAO (2007, p. 49).

Note: The Civil Rights Division, Criminal Section classified cases as sex or labor trafficking according to the facts of the case; the categories are mutually exclusive. GAO = Government Accountability Office.

The Justice Department and U.S. Attorneys have continued to prosecute these cases under both Democratic and Republican Administrations. According to the Justice Department’s report on the 10th anniversary of the trafficking in persons legislation, the Trafficking Victim’s Protection Act’s broader criminal statutes, combined with the victim protections that have encouraged victims to report human trafficking crimes and increasing public awareness and law enforcement expertise in identifying human trafficking, have all contributed to the momentum. Specifically, the Civil Rights Division and U.S. Attorneys’ Offices brought charges of trafficking in persons in 32, 40, 43, and 53 cases in fiscal years 2007, 2008, 2009, and 2010, respectively (U.S. DOJ, 2010b). For example, in September 2010, the Justice Department announced that a federal grand jury in Hawaii had indicted 6 people for exploiting 400 Thai farm workers, the largest case prosecuted up to that time (U.S. DOJ, 2010a). In fiscal year 2012, the Division, in coordination with U.S. Attorneys’ Offices, initiated 55 prosecutions involving forced labor and sex trafficking of adults by force, fraud, or coercion. Of these cases, 34 predominantly involved trafficking for sex and 21 predominantly involved trafficking for labor (U.S. Department of State, 2013).

The federal anti-trafficking act also performed symbolic functions that affected state and local policy and practice by defining and providing models for good policy and practice. Specifically, the act performed (a) a moral educative function—drawing the line between what is acceptable and unacceptable behavior and (b) a model for the states. By defining trafficking in persons as a crime and enhancing the punishments for trafficking-related offenses, the 2000 TVPA sent a threat to traffickers. The law drew the line between the trafficked and traffickers. It redefined the trafficked as victims not criminals, although individuals who have been trafficked may have committed or abetted criminal acts such as alien smuggling or prostitution (Stolz, 2007). By doing so, the act changed the law enforcement paradigm, affecting state and local policy and law enforcement and prosecutorial practices in trafficking cases.

To support the promulgation of the new anti-trafficking policy and practices to state and local criminal justice systems, the Justice Department developed a model state law. The number of states with trafficking laws increased from 4 in 2004, at the time of the initial distribution of the model, to 42 states as of fiscal year 2009 (U.S. DOJ, 2010a). ⁶ By 2013, all states had enacted modern anti-trafficking criminal statutes. Some states passed additional protections, including asset forfeiture provisions, access to civil remedies, and training of law enforcement. Nevertheless, according to the 2013 Trafficking in Persons Report, although these laws reflect an increased effort by the state legislatures, observers reported that state anti-trafficking laws generally lack uniformity and consistency across jurisdictions (U.S. Department of State, 2013).

Conclusion

The purpose of this article was to illustrate how federal civil rights authority has been used to expand the federal role in criminal justice. It does not identify all such federal statutes, nor does it propose to argue whether this practice is a good or bad. Nevertheless, by analyzing the instrumental and symbolic function of civil rights laws that expand federal trafficking in persons crime, extend federal protections of citizens to persons in state and local institutions, and address state and local law enforcement misconduct, this article contributes to our understanding of the U.S. criminal justice policy-making process and how federal law can affect state and local criminal justice policy and practice.

Specifically, federal civil rights legislation can expand the number and types of crimes enforced by federal enforcement and prosecutorial agencies. The statutes may provide for criminal, civil, or administrative remedies, but they do offer remedies and as such are instrumental. As investigations are pursued, cases brought, or agreements reached between the federal government and states, such statutes are instrumental—produce tangible results.

Federal civil rights statutes can also perform symbolic functions that affect state and local criminal justice systems. For example, federal statutes can serve a moral educative function, drawing the line between state and local correctional system and law enforcement behavior that is acceptable or not. These statutes can also provide models for the states. In some instances, model legislation has been promulgated to demonstrate what is or is not good policy and to provide a template for state laws. For example, federal anti-human trafficking legislation required the Justice Department to develop model human trafficking legislation, which they did. Agreements reached by the department with state correctional agencies or state or local law enforcement agencies provide examples of model remedies to address issues of unconstitutional policies or practices or misconduct.

As illustrated by the federal statutes discussed in this article, civil rights legislation has been and can be a tool for enhancing the federal role in criminal justice policy making. Accordingly, in teaching about criminal justice policy or developing research on federal criminal justice policy making, the role of civil rights legislation is an important component to be considered. Understanding how federal civil rights legislation relates to criminal justice policy and practice at the federal, state, and local levels furthers our knowledge of federal government crime control policy making, how policy is made to reduce crime, and how federal criminal justice policy making can affect state and local criminal justice system policy and practice across the country.