Excerpted From: Julian Bava, Civil Redress for Slavery Through Puerto Rican Constitutional Tort Litigation, 28 Buffalo Human Rights Law Review 1 (2021-2022) (223 Footnotes) (Full Document)

JulianBavaSlavery in Puerto Rico has a long history. Spanish settlers first enslaved native residents in the early sixteenth century and subsequently kidnapped thousands from the African continent to extract their labor on the island. Just as slavery did not vanish in the United States following ratification of the Thirteenth Amendment, bonded labor persisted in Puerto Rico well after abolition. The colonial government compelled emancipated laborers to contract with their former enslavers to buoy Puerto Rico's precarious sugar industry, and the once defunct agregado system reemerged to provide plantation owners an easily accessible, unfree workforce. Puerto Rico later served as a penal colony for indentured Chinese immigrants, where they were cruelly exploited for their labor. And the rise of American investment in largescale agricultural holdings exacerbated the agregado's plight. While slavery no longer receives the state's imprimatur, its twenty-first century incarnations endure.

Puerto Rico's slavery blight is a homegrown hydra that will continue to rear its many heads until finally interred. The Legislative Assembly first criminalized “involuntary servitude or slavery” and “human trafficking” in Articles 159 and 160, respectively, as part of the Penal Code's 2012 revision. These amendments should have marked a watershed moment for Puerto Rico's anti-slavery efforts, but Article 160's definition of human trafficking was incoherent and fell into disuse. The Legislative Assembly subsequently passed Act 159, amending the Penal Code's definition of human trafficking. Act 159 struck the prior provisions and forged two new crimes in their stead: “human trafficking for purposes of involuntary servitude or slavery, and other types of exploitation” and “human trafficking for purposes of sexual exploitation.”

The law aims to allow local authorities to “effectively prosecute the offense of human trafficking in state court.” This is a timely goal, since the Puerto Rican government has secured few, if any, convictions under Articles 159 and 160 to date. It should come as no surprise then that federal agencies drive human trafficking investigations and prosecutions on the island, although neither federal nor state authorities have prosecuted forced labor. This might be an ideal space for local intervention. Federal charging decisions ordinarily have no bearing on state efforts to prosecute the same conduct under the dual-sovereignty exception to the Fifth Amendment's Double Jeopardy Clause. But Puerto Rico is not a state, as the United States Supreme Court reminded in Puerto Rico v. Sanchez Valle. The ultimate source of Puerto Rico's prosecutorial authority is neither its own government nor the people, but Congress. The dual-sovereignty exception thus does not apply to Puerto Rico. In other words, a federal prosecution for forced labor under 18 U.S.C. § 1589 would likely bar a successive case brought under Art. 159 of the Puerto Rican Penal Code.

If the Puerto Rican government were to begin to prosecute human trafficking, it would remain at the mercy of the U.S. Department of Justice's (DOJ) decision to abstain from pursuing cases itself. Although the Court's holding in Sanchez Valle cuts both ways--Puerto Rican authorities could theoretically beat their federal counterparts to the punch--the local government cannot match DOJ resources. Luis Sánchez Valle himself pleaded guilty to federal charges before parallel state proceedings could conclude.

This Article proposes an alternative means of achieving justice for trafficking survivors that avoids this prosecutorial tug-of-war. The Constitution of Puerto Rico states: “Neither slavery nor involuntary servitude shall exist except in the latter case as punishment for crime after the accused has been duly convicted.” This should sound familiar. But the Puerto Rican Constitution diverges significantly from the federal Constitution andits stateside cousins. Ratified in 1952, the Constitution draws heavily from the nascent international human rights movement, and courts interpret it accordingly. Crucially, its provisions are generally self-executing and may supply an implied cause of action absent implementing legislation. This holds true even between private parties. Puerto Rico thus may forge its own constitutional slavery jurisprudence uninhibited by federal doctrinal strictures, thereby expanding legal conceptions of unfreedom in accord with local experiences and values.

Part I of this Article briefly describes elements of Puerto Rico's territorial status as relevant to its slavery law and introduces Puerto Rico's hybrid civil-common law legal tradition. It then synthesizes sources of Puerto Rican slavery law--including the 1952 Constitution, the Penal Code, the 1941 Land Law, and international human rights law. In particular, Part I contrasts Act 159 to its federal analog, the Trafficking Victims Protection Reauthorization Act (TVPRA). Part II draws a historical account of federal trafficking prosecutions and situates this area of law within larger questions of plenary federal authority under the Territorial Clause. It then addresses Sanchez Valle and its ramifications for the Puerto Rican government's power to develop its own expertise in prosecuting human trafficking.

Part III explains how civil remedies can be preferable to criminal prosecution and contends that local constitutional torts offer an especially promising avenue for justice. This Part compares the benefits and drawbacks of seeking damages through existing causes of action under state and federal law. Part III argues that efforts to enact a statutory cause of action are likely to lead to undesirable stagnation of Puerto Rico's slavery law, though it proposes draft language that may avoid such a result. Local constitutional torts, Part IV concludes, provide a unique means through which the Puerto Rican judiciary may enforce individual rights, expound a visionary slavery jurisprudence, and protect local autonomy over efforts to eradicate human trafficking.

[. . .]

The framers of Puerto Rico's Constitution understood that slavery and its “subtle” forms are an evolving threat to individual freedom and declared that slavery and involuntary shall not exist on the island. Nearly seventy years later the Legislative Assembly renewed that promise by modernizing the Penal Code's definitions of human trafficking in the hopes that local authorities would begin to prosecute cases locally. This Article argued that Puerto Rico's territorial status consolidated federal dominance in the realm of human trafficking due to U.S. attorneys' unique ability to prosecute intra-territory conduct. The resulting charges under the Mann Act fail to vindicate Puerto Ricans' Thirteenth Amendment rights. If the DOJ were ever to course-correct and charge violations of the TVPA instead, successive local prosecutions would be barred by the Double Jeopardy Clause.

Survivors of slavery, servitude, and trafficking in all of their forms deserve their day in court, without the need to rely on prosecutors to represent their interests. Article II, Section 12 of the local Constitution empowers Puerto Rican courts to fashion remedies for survivors that operate independently from the criminal law. Constitutional torts for slavery offer a novel path toward justice to those for whom adequate reparation might otherwise be foreclosed. Adjudicating civil claims arising directly under the Constitution provides Puerto Rican courts an unparalleled opportunity to expand their own slavery jurisprudence beyond the more rigid confines of federal law, and reflect Puerto Rican values in the process.

Yale Law School, J.D. expected 2023.