Privately run immigration detention facilities allegedly profit from a nationwide system of forced labor. People detained in these for-profit facilities allege that they are compelled to work—often without pay—under threats of solitary confinement, deprivation of basic necessities, and other serious harms. Advocates have challenged these human rights abuses through a series of class action lawsuits under the Trafficking Victims Protection Act (TVPA). The TVPA’s forced labor provision, codified at 18 U.S.C. § 1589, prohibits the use of “labor or services” obtained by force or coercion. If successful, these lawsuits would not only help vindicate the rights of the hundreds of thousands of people detained in these prisonlike facilities each year but would also call into question the viability of the entire private immigration detention industry.
This Comment examines one critical legal question raised by the pending litigation: How should courts define what activities are “labor or services” under § 1589? Private detention corporations argue that the activities that plaintiffs allege they were forced to perform, such as cleaning bathrooms and common areas, are merely housekeeping tasks that do not qualify as “labor or services” under the TVPA. This Comment argues that this defense is inconsistent with the TVPA’s text, its legislative history, and existing case law. Drawing from the Second Circuit’s decision in McGarry v. Pallito, this Comment proposes a new standard for courts to apply in determining whether a certain task qualifies as “labor or services” in the detention context. First, courts should consider whether the task is truly personal. Second, courts should assess whether the purpose of the task is to defray institutional costs. This standard will help ensure that people held in for-profit immigration detention centers receive the full federal protection from forced labor to which they are entitled.