Associate Justice Robert Houghwout Jackson served as a member of the Supreme Court of the United States from 1941 to 1954. During part of that time, he also served as a prosecutor at the Nuremberg Trials, where he confronted the perpetrators of evils that violated “the ‘laws of humanity and the dictates of the public conscience.’”
Before he went to Nuremberg, Justice Jackson and the Supreme Court had already confronted an “evil [that] has never had general approval anywhere.” The majority opinion that Justice Jackson wrote in Pollock v. Williams struck down a state law that violated the Thirteenth Amendment and the federal statutory prohibition against peonage.
Forty-four years after Pollock, the Supreme Court’s decision in United States v. Kozminski limited the definition of the term “involuntary servitude.” Congress reacted to the Kozminski limitation when it passed the Trafficking Victims Protection Act (TVPA).
Under the TVPA, peonage and debt bondage join involuntary servitude and slavery in the definition of the term “severe forms of trafficking in persons.” Debt bondage has been identified as “[t]he most common method of enslavement in the world today,” and it is a well-known tactic in the forced prostitution of women and girls.
In the TVPA, the Thirteenth Amendment confronts the modern successor of its old adversaries — the evil of human trafficking. The TVPA clarifies that “[i]nvoluntary servitude statutes are intended to reach cases in which persons are held in a condition of servitude through nonviolent coercion.” The conference report on H.R. 3244 reveals that Congress foresaw the need to adapt the TVPA “to further address the issues raised in [Kozminski], as courts and prosecutors develop experience with the new crimes created by this Act.”
Justice Jackson wrote that, in the Anti-Peonage Act of 1867, “Congress … raised both a shield and a sword against forced labor because of debt.” With the TVPA, Congress similarly intended to raise both a sword and a shield against human trafficking:
The purposes of this chapter are to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.
22 U.S.C. § 7101(a).
Unfortunately, the sword of the law frequently falls on the victims of prostitution instead of the traffickers. The intersection of prostitution and human trafficking is obstructed by divisions in public opinion, distinctions within the TVPA, differences among state laws and between federal law and state law, and debates over the legalization or decriminalization of prostitution.
We should not forget that the Thirteenth Amendment remains relevant to the struggle against human trafficking, as Professors Tobias Barrington Wolff and Kevin Bales have demonstrated in their condemnation of the involvement of U.S.-based corporations in the enslavement of foreign workers. Professor Wolff emphasized that the Supreme Court has “adopted an expansive mode of practical reasoning and found the Amendment applicable to whatever manifestations of slavery or involuntary servitude should enjoy a presence within the reach of U.S. jurisdiction.”
The claim that “[c]riminal laws against prostitution provide legal force behind its social involuntariness” preceded the TVPA. The TVPA has not resolved the inconsistencies in the laws and policies that pertain to prostitution and trafficking, but the Thirteenth Amendment looms with its potentiality to invalidate state and local laws that endorse the punishment of prostitutes but ignore the protection of trafficking victims:
- Do laws against prostitution conflict with Justice Jackson’s admonition that “[the state] may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for”?
- Will a constitutional challenge to prostitution laws find support in the research and statistics that the TVPA has inspired?
Justice Jackson recognized evils of his time that “fundamentally outraged the conscience of the American people” and violated the “supreme [l]aw of the [United States].” The legislators, police officers, prosecutors, and judges of today must learn to recognize the evils that enslave the victims of prostitution.
To paraphrase Professor Bales, if we really want to stop getting tough on the victims of debt bondage and prostitution, the law is there, waiting for us to pick it up and use it. Why don’t we pick up the Thirteenth Amendment and Pollock and use them to convince our legislators, our police officers, our prosecutors, and our judges to stop getting tough on victims?
 The “Biographical Directory of Federal Judges” on the website of the Federal Judicial Center offers a brief summary of the life and career of Justice Jackson. “Biographical Directory of Federal Judges: Jackson, Robert Houghwout,” Federal Judicial Center, accessed September 19, 2011, http://www.fjc.gov/servlet/nGetInfo?jid=1160&cid=999&ctype=na&instate=na.
 “Nuremberg,” Robert H. Jackson Center, accessed September 19, 2011, http://www.roberthjackson.org/the-man/nuremberg-trial/.
 In his report to the president of the United States on June 6, 1945, Justice Jackson described “those things which fundamentally outraged the conscience of the American people and brought them finally to the conviction that their own liberty and civilization could not persist in the same world with the Nazi power”:
Those acts which offended the conscience of our people were criminal by standards generally accepted in all civilized countries, and I believe that we may proceed to punish those responsible in full accord with both our own traditions of fairness and with standards of just conduct which have been internationally accepted….
… Our people were outraged by the oppressions, the cruelest forms of torture, the large scale murder, and the wholesale confiscation of property which initiated the Nazi regime within Germany. They witnessed persecution of the greatest enormity on religious, political and racial grounds, the breakdown of trade unions, and the liquidation of all religious and moral influences. This was not the legitimate activity of a state within its own boundaries, but was preparatory to the launching of an international course of aggression and was with the evil intention, openly expressed by the Nazis, of capturing the form of the German state as an instrumentality for spreading their rule to other countries. Our people felt that these were the deepest offenses against that International Law described in the Fourth Hague Convention of 1907 as including the “laws of humanity and the dictates of the public conscience”.
Robert H. Jackson, “Report to the President by Mr. Justice Jackson, June 6, 1945,” in “Report of Robert H. Jackson United States Representative to the International Conference on Military Trials,” 42, 48-49, Library of Congress, accessed September 20, 2011, http://www.loc.gov/rr/frd/Military_Law/pdf/jackson-rpt-military-trials.pdf.
That report and other documents from the Nuremberg Trials are available online through the Library of Congress. “Nuremberg Trials: Nuremberg, Germany; 1945–1949,” Library of Congress, accessed September 19, 2011, http://www.loc.gov/rr/frd/Military_Law/Nuremberg_trials.html.
 “These cases decided by this Court under the [Anti-Peonage] Act of 1867 came either from Florida or one of the adjoining states. And these were but a part of the stir cause by the Federal Anti-peonage Act and its enforcement in this same region. This is not to intimate that this section, more than others, was sympathetic with peonage, for this evil has never had general approval anywhere, and its sporadic appearances have been neither sectional nor racial.” Pollock v. Williams, 322 U.S. 4, 10-11 (1944) (emphasis added; citations omitted).
 The Legal Information Institute of Cornell University Law School provides a search function through which we can locate the opinions of the majority and the dissent in Pollock v. Williams online at, respectively, http://www.law.cornell.edu/supct/search/display.html?terms=peonage&url=/supct/html/historics/USSC_CR_0322_0004_ZO.html and http://www.law.cornell.edu/supct/search/display.html?terms=peonage&url=/supct/html/historics/USSC_CR_0322_0004_ZD.html (accessed September 19, 2011).
 The text of the Thirteenth Amendment to the Constitution of the United States reads:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.
“Constitution of the United States, Amendments 11-27” National Archives and Records Administration, accessed September 19, 2011, http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html.
 In Pollock, Justice Jackson emphasized a portion of the Anti-Peonage Act of 1867, which he identified in footnote 8 of the majority opinion as “[t]he Act of March 2, 1867, 14 Stat. 546”:
Congress, on March 2, 1867, enacted that all laws or usages of any state
by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise,
are null and void, and denounced it as a crime to hold, arrest, or return a person to the condition of peonage.
Pollock, 322 U.S. at 8 (citations omitted).
 The full text of United States v. Kozminski, 487 U.S. 931 (1988), is currently available online through the US Supreme Court Center of Justia.com. “United States v. Kozminski, 487 U. S. 931 (1988),” Justia Inc., accessed September 20, 2011, http://supreme.justia.com/us/487/931/case.html.
 Kozminski involved two criminal statutes, 18 U.S.C. § 241 and 18 U.S.C. § 1584, concerning which Associate Justice Sandra Day O’Connor wrote expressed the holding of the Supreme Court:
Absent change by Congress, we hold that, for purposes of criminal prosecution under § 241 or § 1584, the term “involuntary servitude” necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion. Our holding does not imply that evidence of other means of coercion, or of poor working conditions, or of the victim’s special vulnerabilities is irrelevant in a prosecution under these statutes. As we have indicated, the vulnerabilities of the victim are relevant in determining whether the physical or legal coercion or threats thereof could plausibly have compelled the victim to serve. In addition, a trial court could properly find that evidence of other means of coercion or of extremely poor working conditions is relevant to corroborate disputed evidence regarding the use or threatened use of physical or legal coercion, the defendant’s intention in using such means, or the causal effect of such conduct. We hold only that the jury must be instructed that compulsion of services by the use or threatened use of physical or legal coercion is a necessary incident of a condition of involuntary servitude.
Kozminski, 487 U.S. at 952-53.
 The Trafficking Victims Protection Act (TVPA) currently occupies Chapter 78 of Title 22 of the United States Code. “Trafficking Victims Protection,” Office of the Law Revision Counsel, U.S. House of Representatives, accessed September 20, 2011, http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t21t25+3913+0++%28traffickin. The original legislation, the Trafficking Victims Protection Act of 2000, was part of Public Law 106-386. “Popular Name Tool,” Office of the Law Revision Counsel, U.S. House of Representatives, accessed September 20, 2011, http://uscode.house.gov/popularnames http://www.archives.gov/ /popularnames.htm.
 Black’s Law Dictionary defines peonage as “[i]llegal and involuntary servitude in satisfaction of a debt.” Bryan A. Garner, ed., Black’s Law Dictionary, 9th ed. (St. Paul: West, 2009), s.v. “peonage.”
 The TVPA provides a definition of debt bondage in subsection (4) of 22 U.S.C. § 7102:
(4) Debt bondage
The term “debt bondage” means the status or condition of a
debtor arising from a pledge by the debtor of his or her personal
services or of those of a person under his or her control as a
security for debt, if the value of those services as reasonably
assessed is not applied toward the liquidation of the debt or the
length and nature of those services are not respectively limited
“22 USC Sec. 7102,” Office of the Law Revision Counsel, U.S. House of Representatives, accessed September 20, 2011, http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t21t25+3915+0++%28trafficking%20victims%20protection%20act%20debt%20bondage%29%20%20%20%20%20%20%20%20%20%20.
 Subsection (8) of 22 U.S.C. § 7102 provides:
(8) Severe forms of trafficking in persons
The term “severe forms of trafficking in persons” means –
(A) sex trafficking in which a commercial sex act is induced
by force, fraud, or coercion, or in which the person induced to
perform such act has not attained 18 years of age; or
(B) the recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services, through the use of
force, fraud, or coercion for the purpose of subjection to
involuntary servitude, peonage, debt bondage, or slavery.
“22 USC Sec. 7102,” Office of the Law Revision Counsel, U.S. House of Representatives, accessed September 20, 2011, http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t21t25+3915+1++%28peonage%29%20%20AND%20%28%2822%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20.
The most common method of enslavement in the world today, accounting for nearly 20 million of the world’s slaves. It begins when a person accepts a loan from a moneylender, often in order to purchase basic necessities such as food or medicine. The person (and often his or her family as well) are held as collateral against the loan. Because they are collateral, their work does not repay the debt but “belongs” to the moneylender. Unable to earn money independently, the family is unable to repay the illegal debt and it is passed down from generation to generation, creating hereditary enslavement. This system is well-entrenched in South Asia, and can trap entire families in slavery for illegal debts as small as $40.
“Glossary,” Free the Slaves, accessed September 20, 2011, http://www.freetheslaves.net/Page.aspx?pid=305 (single quotation marks changed to double).
The International Association of Chiefs of Police has instructed that, “[i]n order to coerce and control victims, traffickers will often…[u]se debt and other fines to create an insurmountable ‘peonage’ situation in which the victim must work off a debt or face punishment.” International Association of Chiefs of Police, The Crime of Human Trafficking: A Law Enforcement Guide to Identification and Investigation (Alexandria: International Association of Chiefs of Police, ), 7 (double quotation marks changed to single), available at http://www.theiacp.org/LinkClick.aspx?fileticket=W7b9hV6wn%2bA%3d&tabid=372 (accessed September 20, 2011).
 The U.S. Department of State has described sex trafficking, debt bondage, and the connection between them:
When an adult is coerced, forced, or deceived into prostitution – or maintained in prostitution through coercion – that person is a victim of trafficking. All of those involved in recruiting, transporting, harboring, receiving, or obtaining the person for that purpose have committed a trafficking crime. Sex trafficking can also occur within debt bondage, as women and girls are forced to continue in prostitution through the use of unlawful “debt” purportedly incurred through their transportation, recruitment, or even their crude “sale,” which exploiters insist they must pay off before they can be free.
It is critical to understand that a person’s initial consent to participate in prostitution is not legally determinative; if an individual is thereafter held in service through psychological manipulation or physical force, that person is a trafficking victim and should receive the benefits outlined in the United Nations’ Palermo Protocol and applicable laws.
One form of coercion is the use of a bond, or debt. Often referred to as “bonded labor” or “debt bondage,” the practice has long been prohibited under U.S. law by its Spanish name, peonage, and the Palermo Protocol calls for its criminalization as a form of trafficking in persons. Workers around the world fall victim to debt bondage when traffickers or recruiters unlawfully exploit an initial debt the worker assumed as part of the terms of employment. Workers may also inherit intergenerational debt in more traditional systems of bonded labor.
“What is Modern Slavery?,” U.S. Department of State, accessed September 20, 2011, http://www.state.gov/g/tip/what/index.htm (emphasis in original).
 “[T]he TVPA not only meaningfully effects the Thirteenth Amendment to the U.S. Constitution, but also reflects the norms of international anti-slavery law.” U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, “The TVPA and the Palermo Protocol,” in introductory material of 2011 Trafficking in Persons Report, (Washington, D.C.: U.S. Department of State, 2011), 16 (double quotation marks changed to single) available at http://www.state.gov/documents/organization/164452.pdf (accessed September 21, 2011).
 In the words of subsection (b)(21) of 22 U.S.C. § 7101, “Trafficking of persons is an evil requiring concerted and vigorous action by countries of origin, transit or destination, and by international organizations.” “22 USC Sec. 7101,” Office of the Law Revision Counsel, U.S. House of Representatives, accessed September 20, 2011, http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t21t25+3914+0++%28traffickin.
 “Over the past 15 years, ‘trafficking in persons’ and ‘human trafficking’ have been used as umbrella terms for activities involved when someone obtains or holds a person in compelled service.” “What is Modern Slavery?,” U.S. Department of State, accessed September 20, 2011, http://www.state.gov/g/tip/what/index.htm (double quotation marks changed to single).
 Subsection (b)(13) of 22 U.S.C. § 7101 specifically addresses Kozminski:
(13) Involuntary servitude statutes are intended to reach cases in which persons are held in a condition of servitude through nonviolent coercion. In United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court found that section 1584 of title 18, should be narrowly interpreted, absent a definition of involuntary servitude by Congress. As a result, that section was interpreted to criminalize only servitude that is brought about through use or threatened use of physical or legal coercion, and to exclude other conduct that can have the same purpose and effect.
“22 USC Sec. 7101,” Office of the Law Revision Counsel, U.S. House of Representatives, accessed September 20, 2011, http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t21t25+3914+0++%28traffickin.
 H.R. 3244 bore the title “Victims of Trafficking and Violence Protection Act of 2000” and became Public Law 106-386. “Bill Summary & Status: 106th Congress (1999 – 2000); H.R.3244,” Library of Congress, Thomas, accessed September 20, 2011, http://thomas.loc.gov/cgi-bin/bdquery/D?d106:1:./temp/~bdo54c::|/home/LegislativeData.php?n=BSS;c=106|.
 H.R. Rep. No. 106-939, at 101 (2000) (Conf. Rep.) available at http://www.gpo.gov/fdsys/pkg/CRPT-106hrpt939/pdf/CRPT-106hrpt939.pdf (accessed September 20, 2011).
One way to locate the conference report on H.R. 3244, House Report 106-939, is through a search of the committee reports for the 106th Congress. “Search Committee Reports: 106th Congress (1999-2000),” Library of Congress, Thomas, accessed September 20, 2011, http://thomas.loc.gov/home/LegislativeData.php?&n=Reports&c=106. We can also search the Catalog of U.S. Government Publications of the U.S Government Printing Office and locate the report at http://catalog.gpo.gov/F/KHQJM64KRDSPAM8M4Y73KR4CKSUCKL9FMSP61VJQGNMYE7TL37-36776?func=full-set-set&set_number=006098&set_entry=000002&format=999 (accessed September 20, 2011).
In the conference report, H.R. Rep. No. 106-939 (2000) (Conf. Rep.), Kozminski and the definition of involuntary servitude are specifically addressed in the portion of the Joint Explanatory Statement of the Committee of Conference titled “SEC. 12. Strengthening Prosecution and Punishment of Traffickers”:
In order to address issues raised by the decision of the United States Supreme Court in United States v. Kozminski, 487 U.S. 931 (1988), the [conference] agreement creates a new section 1589 [of title 18 of the United States Code] on forced labor in form similar to the House bill. The agreement does not contain a provision included in the House bill addressing fraud or deception to obtain labor or services of minors, mentally incompetent persons, or persons otherwise particularly susceptible. In deleting these provisions, the conferees addressed the concerns of some members of the conference that the similar House bill provision might have criminalized conduct that is currently regulated by labor law. However, the conferees are aware that the Department of Justice may seek additional statutory changes in future years to further address the issues raised in Kozminski, as courts and prosecutors develop experience with the new crimes created by this Act.
Section 1589 is intended to address the increasingly subtle methods of traffickers who place their victims in modern-day slavery, such as where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence. Section 1589 will provide federal prosecutors with the tools to combat severe forms of worker exploitation that do not rise to the level of involuntary servitude as defined in Kozminski.
H.R. Rep. No. 106-939, at 99-101(2000) (Conf. Rep.) (italics changed to underlining).
 Pollock, 322 U.S. at 8.
 “22 USC Sec. 7101,” Office of the Law Revision Counsel, U.S. House of Representatives, accessed September 20, 2011, http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t21t25+3914+0++%28traffickin.
 “When trafficking is mentioned, Americans often visualize a foreign female who was deceived upon arriving in the U.S. and finds herself being sexually exploited. They do not imagine a [U.S.-citizen (USC)] child or adult who was kidnapped or lured from home and is prostituted at a local truck stop. Sadly, Americans tend to refer to USC trafficking victims as anything but victims. They are referred to as criminals, prostitutes, child prostitutes, runaways, throwaways, addicts, or juvenile delinquents.” Human Smuggling and Trafficking Center, Domestic Human Trafficking: An Internal Issue ([Washington, D.C.]: Human Smuggling and Trafficking Center, 2008), 2 available at http://www.state.gov/documents/organization/113612.pdf (accessed September 21, 2011).
 “A series of recent studies suggests that our analysis of prostitution and the adult sex trade might … benefit from a reexamination in light of the federal definition of sex trafficking and the definition of sex trafficking in many state statutes. The perception that the sex trade generally involves a professional choice of willing adults is clouded by studies suggesting that more than 90 percent of the women involved in the sex trade have been abused or battered by a member of their families and 70 percent of the women involved in the sex trade have been sexually abused between the ages of three and 14.” Suzanna L. Tiapula and Allison Turkel, “Identifying the Victims of Human Trafficking,” The Prosecutor, April/May/June 2008,  (National District Attorneys Association) (references omitted), available at http://www.ndaa.org/pdf/prosecut092008_feat_identvic.pdf (accessed September 21, 2011).
 In 2010, the Supreme Court of Texas considered the case of a prostituted child who had been adjudged delinquent for conduct in which she engaged when she was thirteen years old and, according to her, “had been living, and having sex, with her thirty-two-year-old ‘boyfriend.’” In re B.W., 313 S.W.3d 818, 819 (Tex. 2010) (double quotation marks changed to single). The majority of the Texas Supreme Court recognized that child prostitutes are victims and held that a 13-year-old child cannot be charged with prostitution under Texas law:
Children are the victims, not the perpetrators, of child prostitution. Children do not freely choose a life of prostitution, and experts have described in detail the extent to which they are manipulated and controlled by their exploiters….
[The Texas] Legislature has passed laws recognizing the vulnerability of children to sexual exploitation, including an absolute prohibition of legal consent for children under fourteen. In the absence of a clear indication that the Legislature intended to subject children under fourteen to prosecution for prostitution when they lack the capacity to consent to sex as a matter of law, we hold that a child under the age of fourteen may not be charged with that offense.
In re B.W., at 826 (citations omitted).
The majority did not decide the constitutional issue in the case, but the dissenting opinion included that issue in its summary of the questions that B.W. had presented:
B.W. requests that this Court (1) hold that minors under fourteen years old cannot consent to sexual conduct as a matter of law and, therefore, cannot be adjudicated in the juvenile justice system for engaging in conduct constituting prostitution; and (2) determine that failure to prosecute her “boyfriend” and grant her immunity in exchange for testimony against him violated her right to due process.
In re B.W., at 828.
We can locate the electronic briefs, the oral arguments, and the majority and dissenting opinions for In re B.W., Case Number 08-1044, through the case-search function on the website of the Supreme Court of Texas. “Case Search Results on Case # 08-1044,” Supreme Court of Texas, accessed September 21, 2011, http://www.supreme.courts.state.tx.us/opinions/Case.asp?FilingID=30007. My analysis of In re B.W. is available online. Frank Taylor, “Child victim wins in Texas Supreme Court, but obstacles remain for victims of human trafficking,” Examiner.com, accessed September 21, 2011, http://www.examiner.com/u-s-district-court-in-houston/child-victim-wins-texas-supreme-court-but-obstacles-remain-for-victims-of-human-trafficking#ixzz1Y85RjpXb.
 “There are widely differing views of prostitution and in general who is responsible for it. These often conflicting opinions affect community responses and the extent of police intervention. Public ambivalence is reflected in the incredible patchwork of state and local prostitution laws and ordinances, some punishing the purchase of sexual services, some punishing its sale, some targeting pimps and brothel owners, and still others criminalizing all of the above. The result is inconsistent enforcement by local police, who carry out well-publicized crackdowns from time to time.” Graeme R. Newman, The Exploitation of Trafficked Women, Problem-Oriented Guides for Police Problem-Specific Guides Series 38 (Washington, D.C.: U.S. Department of Justice, Office of Community Oriented Policing Services, 2006) 18 (reference omitted), available at http://www.cops.usdoj.gov/ric/ResourceDetail.aspx?RID=88 (accessed September 21, 2011).
 “Any commercial sex act if the person is under 18 years of age, regardless of whether any form of coercion is involved, is defined as human trafficking by the TVPA, 2000. (Adult prostitution is not considered human trafficking unless it is proven that the victim was coerced.) Of cases confirmed to be human trafficking, 64% involved allegations of prostitution or sexual exploitation of a child, and 42% involved allegations of adult prostitution. Most cases confirmed not to be human trafficking (64%) or pending confirmation status (66%) involved allegations of adult prostitution.” Duren Banks and Tracey Kyckelhahn, Characteristics of Suspected Human Trafficking Incidents, 2008-2010, (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2011), 8, available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=2372 (September 21, 2011).
 A comparison with the Swedish policies on sex trafficking and prostitution demonstrates that history presents a significant obstacle to the reconciliation of the policies of the various state governments and the federal government of the U.S. with regard to sex trafficking and prostitution:
Historically, and into the present day, prostitution has been the purview of the individual states and not the Federal government. As such, any coordination between prostitution policy (ideological views of this linkage notwithstanding) and policies addressing sex trafficking would need to take place amongst at least 51 government bodies and legal codes. Contrast this with Sweden. Since the early parts of the 20th century, Sweden’s central government has crafted both prostitution and sex trafficking policies….
The differences between the U.S. and Swedish social and political context lead to the conclusion that it would be very difficult for the U.S. and other countries to adopt the Swedish approach to prostitution and sex trafficking. The historically-grounded social and governmental contexts within which Sweden’s prostitution and sex trafficking policy is embedded are not easily overcome for any country seeking to adopt Sweden’s approach. For example, the U.S. would face a number of hurdles beyond any debates about the merits of the policy change. First, the Federal government would face the States rights hurdle as it would have to overcome decades of state control over prostitution policy. Second and more problematic is the lack of agreement over trafficking as a reflection of inequality in society.
John T. Picarelli and Anna Jonsson, Fostering Imagination in Fighting Trafficking: Comparing Strategies and Policies to Fight Sex Trafficking in the U.S. and Sweden (n.p.: U.S. Department of Justice, National Criminal Justice Reference Service, 2008), 51 available at https://www.ncjrs.gov/pdffiles1/nij/grants/223060.pdf (accessed September 20, 2011).
 “The two most radical responses to street prostitution are legalization and decriminalization. Whatever their merits and drawbacks, neither approach is likely to be politically feasible in the foreseeable future in the United States, United Kingdom, or Canada.” Michael S. Scott and Kelly Dedel, Street Prostitution, Problem-Oriented Guides for Police Problem-Specific Guides Series 2, 2nd ed., (Washington, D.C.: U.S. Department of Justice, Office of Community Oriented Policing Services, 2006), 39 (footnotes omitted), available at http://www.cops.usdoj.gov/files/RIC/Publications/e10062633.pdf (accessed September 21, 2011).
 Professor Wolff addressed “the increasingly important role played by multinational corporate entities in forced labor practices around the globe”:
My principal contention is that the Thirteenth Amendment forbids the deliberate incorporation of slave labor into American industry. More precisely, I contend that the knowing use of slave labor by U.S. based entities in their foreign operations constitutes the presence of “slavery” within the United States, as that term is used in the Thirteenth Amendment, and hence that this practice renders such U.S. entities subject to the prohibitory authority of American courts through a private civil action.
Tobias Barrington Wolff, “The Thirteenth Amendment and Slavery in the Global Economy,” Columbia Law Review 102, no. 4 (2002) 973, 978.
 Professor Bales offered this summary of Professor Wolff’s position:
The Thirteenth Amendment to the U.S. Constitution abolished slavery. Although the Thirteenth Amendment ended legal slavery, legal scholar Tobias Wolff shows how it has been applied to illegal forms of slavery since the Civil War. Over time the Supreme Court has applied the amendment to changing industrial contexts, and Wolff argues that it can be applied equally to modern slavery in the global market.
Kevin Bales, Ending Slavery: How We Free Today’s Slaves (Berkeley: University of California Press, 2007), 201 (reference omitted).
 According to Wolff, “The most pervasive problems of slavery and involuntary servitude in America now involve the exploitation by U.S. corporations of workers in foreign countries.” Wolff, “The Thirteenth Amendment and Slavery in the Global Economy,” 986. Wolff explained why his article did not address “sexual slavery”:
I do not address the widespread practice of sexual slavery, in which human beings (usually women or minors) are brutally compelled to submit to prostitution and rape for the enrichment of others. This omission is solely a consequence of the fact that my thesis has limited practical application to forced labor in industries that are themselves illegal in the United States. But as international organizations and scholars alike have recognized, the practice of sexual slavery is both severe and pervasive, deserving close attention.
Wolff, “The Thirteenth Amendment and Slavery in the Global Economy,” 986n52 (references omitted).
 Wolff emphasized that the U.S. Supreme Court had “translated” — perhaps “adapted” would be a more appropriate verb — “the Thirteenth Amendment into a new context”:
In finding that the Thirteenth Amendment and its implementing legislation operated to prohibit peonage — however named and through whatever device accomplished — the Court translated the mandate of the Thirteenth Amendment into a new context for American industry. It adopted an expansive mode of practical reasoning and found the Amendment applicable to whatever manifestations of slavery or involuntary servitude should enjoy a presence within the reach of U.S. jurisdiction. And it definitively rejected the assertion that workers could bear complicity for their own enslavement by “voluntarily” entering into arrangements of power and dominance.
Wolff, “The Thirteenth Amendment and Slavery in the Global Economy,” 984-85 (references omitted).
 Professor Catharine MacKinnon, for example, offered this explanation:
Criminal laws against prostitution provide legal force behind its social involuntariness. Women in prostitution have no police protection because they are criminals, making pimps’ protection racket both possible and necessary. In addition to being able to inflict physical abuse with impunity, pimps confiscate the women’s earnings and isolate them even beyond the stigma they carry. The women then have nowhere but pimps to turn to bail them out after arrest, leaving them in debt for their fines which must be worked out in trade. Thus the law collaborates in enforcing women’s involuntary servitude by turning the victim of peonage into a criminal.
Catharine A. MacKinnon, “Prostitution and Civil Rights,” in D. Kelly Weisberg, ed., Applications of Feminist Legal Theory to Women’s Lives: Sex, Violence, Work, and Reproduction, Women in the Political Economy (Philadelphia: Temple University Press, 1996), 222, 227.
A modified version of the article is available online and adds a footnote at the end of the quotation above:
(50) For analogous situations, see Jaremillo v. Romero, 1 N.M. 190, 197-99 (1857) (involuntary servitude formally sanctioned by law). See also Taylor v. Georgia, 315 U.S. 25, 29-31 (1942) (striking down state laws which did not sanction involuntary servitude directly, but played a key role in it).
MacKinnon, “Prostitution and Civil Rights: Part Two,” Prostitution Research & Education, accessed September 20, 2011, http://www.prostitutionresearch.com/mackinnon2.html.
 Professor Marisa Silenzi Cianciarulo focused on the effect of section 221 of H.R. 3887 when she wrote about the “controversy” over the reauthorization of the TVPA during the 110th Congress:
The William Wilberforce Trafficking Victims Reauthorization Act, named after the renowned eighteenth century British parliamentarian who led the movement to abolish slavery in the United Kingdom, proposed a number of significant changes to U.S. anti-trafficking law. One change in particular became the subject of a great deal of debate among anti-trafficking advocates and law enforcement agencies. The House version of the Wilberforce Reauthorization would penalize as a trafficker “[w]hoever knowingly . . . persuades, induces, or entices any individual to engage in prostitution for which any person can be charged with an offense.” This is a significant expansion of the current definition of trafficking, which requires that a trafficking defendant have employed force, fraud or coercion in order to effectuate trafficking. In effect, the Wilberforce Reauthorization amends the Mann Act, an anti-prostitution law, by incorporating it into federal anti-trafficking legislation.
Reactions to the House Version of the Wilberforce Reauthorization have been sharply divided. Some anti-trafficking advocates applaud the expansion of the federal definition of trafficking to include prostitution. They base their support on the assertion that all prostitution violates the human rights of women and that no woman freely chooses to engage in prostitution….
Other anti-trafficking advocates, as well as the Department of Justice, object to equating prostitution with trafficking. They assert that not only is such an equation erroneous, but that including prostitution in the definition of trafficking will divert scarce resources from trafficking cases involving force, fraud or coercion.
Marisa Silenzi Cianciarulo, “What Is Choice? Examining Sex Trafficking Legislation through the Lenses of Rape Law and Prostitution,” University of St. Thomas Law Journal 6, no. 1, 54, 65-66 (references omitted) available at http://www.stthomas.edu/law/programs/journal/Volume6num1/Cianciarulo_final_pd1.pdf (accessed September 21, 2011).
Section 221 of H.R. 3887 included this provision:
(f) Sex Trafficking-
(1) NEW OFFENSE- Chapter 117 of title 18, United States Code, is amended by inserting at the end the following:
`Sec. 2430. Sex trafficking
`Whoever knowingly, in or affecting interstate or foreign commerce, within the special maritime and territorial jurisdiction of the United States, or in any territory or possession of the United States, persuades, induces, or entices any individual to engage in prostitution for which any person can be charged with an offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both’.
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2007, H.R.3887, 110th Congress § 221(f)(1) (2007) (as passed by House).
However, H.R. 3887 did not become law. “Bill Summary & Status: 110th Congress (2007 – 2008); H.R.3887,” Library of Congress, Thomas, accessed September 21, 2011, http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HR03887:|TOM:/bss/d110query.html|. A related bill, H.R.7311, became Public Law 110-457. “Bill Summary & Status: 110th Congress (2007 – 2008); H.R.7311,” Library of Congress, Thomas, accessed September 21, 2011, http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HR07311:|TOM:/bss/d110query.html|.
H.R.7311 contained this provision:
SEC. 225. PROMOTING EFFECTIVE STATE ENFORCEMENT.
(a) Relationship Among Federal and State Law- Nothing in this Act, the Trafficking Victims Protection Act of 2000, the Trafficking Victims Protection Reauthorization Act of 2003, the Trafficking Victims Protection Reauthorization Act of 2005, chapters 77 and 117 of title 18, United States Code, or any model law issued by the Department of Justice to carry out the purposes of any of the aforementioned statutes–
(1) may be construed to treat prostitution as a valid form of employment under Federal law; or
(2) shall preempt, supplant, or limit the effect of any State or Federal criminal law.
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, H.R.7311, 110th Congress § 225(a) (2008) (as passed by House and Senate).
 “The TVPA’s minimum standards measure a country’s efforts to combat trafficking under the ‘3P’ paradigm: prosecution, protection, and prevention. Those three Ps are also themes in the first sentence of the preamble to the Palermo Protocol: ‘Declaring that effective action to prevent and combat trafficking in persons, . . . includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking’ (emphasis added).” U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, “The TVPA and the Palermo Protocol,” in introductory material of 2011 Trafficking in Persons Report, (Washington, D.C.: U.S. Department of State, 2011), 16 (double quotation marks changed to single) available at http://www.state.gov/documents/organization/164452.pdf (accessed September 21, 2011).
 Pollock, 322 U.S. at 24.
 The Human Trafficking Data Collection and Reporting Project at Northeastern University has identified these goals for the Human Trafficking Reporting System:
Presently official government statistics do not capture the full extent and nature of severe forms of human trafficking within the United States. The limited knowledge that we do have about trafficking in persons comes primarily from prosecution and arrest data which are believed to make up a small proportion of the actual incidents of human trafficking.
This project is designed to increase our understanding of the extent and nature of human trafficking incidents in the United States by creating a sustainable data collection and reporting system that will track information from state and local law enforcement agencies about people involved in human trafficking. Throughout the course of the project, researchers from Northeastern University and Urban Institute will work closely with all 42 human trafficking task forces to meet the following goals:
- Development of a National Human Trafficking Data Collection and Reporting System that captures and tracks information about human trafficking investigations, offenders and victims who have been identified by law enforcement agencies but have not been systematically recorded in the past.
- Ongoing technical assistance and training for task force agencies participating in the data collection system in order to help improve victim identification, case investigation and data collection of victim and offender information.
- Production of monthly technical and substantive reports and larger comprehensive data summaries every six months which will allow the Department of Justice to systematically access information about the nature and extent of human trafficking on a regular basis.
- A final report to the Department of Justice that will include lessons learned throughout the task force data collection and reporting process and recommendations for moving forward, including the possible expansion of the data collection and reporting system beyond task force agencies.
“Goals of Human Trafficking Reporting System,” Northeastern University, accessed September 20, 2011, http://www.humantrafficking.neu.edu/background/goals_human_trafficking/.
 “Report to the President by Mr. Justice Jackson, June 6, 1945,” in “Report of Robert H. Jackson United States Representative to the International Conference on Military Trials,” p. 48, Library of Congress, accessed September 20, 2011, http://www.loc.gov/rr/frd/Military_Law/pdf/jackson-rpt-military-trials.pdf; see note 3 above.
 Article VI of the Constitution of the United States provides in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
“The Constitution of the United States: A Transcription” National Archives and Records Administration, accessed September 20, 2011, http://www.archives.gov/exhibits/charters/constitution_transcript.html.
 In 2008, the United Nations Committee on the Rights of the Child expressed concern over the fact that children were not exempt from prosecution under state laws against prostitution:
[T]he Committee is concerned at the information that there are instances where child victims, especially those who are victims of trafficking within the United States and those used in prostitution, may be penalized or criminalized, since state laws have not yet uniformly exempted children, notably those involved in prostitution, from arrest and prosecution.
Office of the United Nations High Commissioner for Human Rights, Committee on the Rights of the Child, Forty-eighth session: Consideration of Reports Submitted by States Parties Under Article 12, Paragrah 1, of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; Concluding observations, United States of America,” CRC/C/OPSC/USA/CO/1, 25 June 2008, para. 37, Universal Human Rights Index of United Nations Documents, http://www.universalhumanrightsindex.org/hrsearch/displayDocumentVersions.do?lang=en&docId=1426 (accessed September 20, 2011).
 “When investigating prostitution, prostitution related crimes, or undocumented worker violations, law enforcement should apply internal procedures that would require that human trafficking be ruled out before proceeding with traditional investigative techniques. By applying these internal procedures within law enforcement, and through increased outreach and public awareness, more human trafficking victims will be identified.” Human Smuggling and Trafficking Center, Domestic Human Trafficking: An Internal Issue ([Washington, D.C.]: Human Smuggling and Trafficking Center, 2008), 11 available at http://www.state.gov/documents/organization/113612.pdf (accessed September 21, 2011).
 The Supreme Court of Texas rejected the claim that prosecutorial discretion empowered a district attorney to charge a 13-year-old child with prostitution:
We do not agree that our decision today infringes on prosecutorial discretion. The Legislature has determined that children thirteen and younger cannot consent to sex. This necessitates the holding that these children cannot be tried for prostitution. If this holding infringes on the prosecutor’s discretion, then so too does every decision upholding a legislative or constitutional limitation on the ability of a prosecutor to bring a case.
In re B.W., at 824.
The assistant district attorney had insisted during his oral argument that prosecutorial discretion permitted the prosecution of prostituted children who are as young as ten years of age. Audio of oral argument at 35:06-35:20, In the Matter of B.W., (No. 08-1044), available at http://www.supreme.courts.state.tx.us/oralarguments/2008.asp#08-1044 (accessed September 21, 2011).
 Judges need to recognize that prostituted children are victims of human trafficking:
Juvenile courts need to recognize that these minors are victims of prostitution and focus on the use of institutional resources to protect them from further commercial sexual exploitation. Courts must be prepared to consider reclassifying the status of children who come into their courts as “prostitutes.”
Suzanna L. Tiapula and Allison Turkel, “Identifying the Victims of Human Trafficking,” The Prosecutor, April/May/June 2008,  (National District Attorneys Association) available at http://www.ndaa.org/pdf/prosecut092008_feat_identvic.pdf (accessed September 21, 2011).
 “If we really wanted to get tough on slavery, the law is there, waiting for us to pick it up and use it.” Bales, Ending Slavery: How We Free Today’s Slaves, 206.