Disciplining For-Profit Prisons with Human Trafficking Laws

An innovative use of human trafficking laws may help discipline the for-profit prison model, Notre Dame Law School Adjunct Professor Alexandra Levy told students Tuesday. Levy discussed using civil human-trafficking laws, specifically the 2000 Trafficking Victims Protection Act and its reauthorizations in 2003 and 2008, to punish facilities and people abusing their power for profit.

The TVPRA gives people the ability to sue their traffickers and institutions that benefited from their labor in civil court. Two current lawsuits show that the law may be applied in more ways than previously imagined.

The 13th Amendment allows for forced labor as part of the penalty for crimes, but forced labor solely to benefit a person or institution financially is illegal, Levy said.

Levy focused on two cases, one in Colorado and one in Alabama, where plaintiffs used the TVPRA to seek damages from the entities that detained them. “Cutting edge” cases like these illustrate how delicate a balance must be found between securing individual rights while also seeing that the penal system still functions as intended.

“We’re being called upon here to find a way to hold institutional actors accountable for their abuses, while still giving them police power,” she said. “We’re trying to safeguard the rights of people whose rights we’ve deliberately limited.”

The Colorado case, Menocal v. Geo Group, Inc., doesn’t focus on prisoners, but rather immigration detainees at a Geo Group detention facility, where detainees allege that they could work for a dollar a day or were sometimes forced to clean for no pay or face solitary confinement. The class certification was appealed to the 10th U.S. Circuit Court of Appeals, and if upheld, could create a class of more than 50,000 plaintiffs.

In Alabama, the lawsuit argues that poor residents were arrested for minor infractions and held in jail. Instead of seeing whether they could pay the fines, the system’s setup instead required residents who were unable to pay to “sit out” their debts to the city at a rate of $50 a day, with the possibility of an additional $25 per day credit if they worked. The city also used a private company, Judicial Corrections Services, Inc., to run its probation program and serve as a collection agency of sorts. Poor residents would get caught in a loop of debt to the city and to the company — a loop they argue was entirely motivated by profit.

A recent motion to dismiss the case was denied — a positive indicator, Levy noted. This was filed as a class-action lawsuit as well, but the court has not yet certified the class, she said.

“It allows the system to function intact while increasing accountability in deterring profit-based abuses,” she said. “We’re looking for a finely tuned instrument to address our problems. We’re not looking for a revolution — that’s for a different day.”