Alas, as President Bush finishes out the last few weeks of his term, the pardon watchers come out in full force. Perhaps the most culturally significant among the pardon candidates is Jack Johnson, the first black heavyweight boxing champ.
Johnson was known for taunting his white opponents in and out of the ring, and flouted racial boundaries of the time. He dated and married white women and defeated all of the white boxing champions of his day. In 1920, a few years after he retired, the government finally caught up with Johnson and charged him with violating the Mann Act for traveling across state lines with a white woman, who had reported it to authorities.
Of course Johnson should be pardoned. But it shouldn't stop there. The president should set up a special advisory board to recommend pardons in all noncommercial Mann Act cases. It criminalizes travel across state lines between unmarried consensual adults if the sexual behavior is illegal under state or federal law.
The Mann Act, enacted in 1910, was designed to fight the so-called white-slave trade in young girls for prostitution. At least one commentator, Dr. Rhodri Jeffrey-Jones, professor emeritus at the University of Edinburgh, argues that there was a racial motive behind the Mann Act. Several prominent blacks, including Johnson and Chuck Berry, were prosecuted under the act, although it must be stated in fairness that underage girls may have been involved in some cases.
In 1917 the Supreme Court interpreted the act to cover even noncommercial travel for sexual purposes in Caminetti v. United States, including consensual extramarital sex, opening up the federal law for more abuses. In 1986 the act was amended in an attempt to remove some of the effects of the Caminetti decision. However, the act did not go far enough. Today, the tenets of the act remain:
“Whoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 10 years, or both.”
Sounds legitimate, until you explore what's still considered illegal sexual activity in some states. Most consensual sexual acts are considered legal in Virginia, but adultery is still against the law. Some states still criminalize fornication and cohabitation.
The Mann act should be amended to criminalize only forcible transportation for commercial sexual exploitation or in the making of pornography or child pornography. It should not cover noncommercial acts between consenting adults. There is even an argument that I do not share but I respect greatly that commercial sexual activity between consenting adults ought to be decriminalized. In other words, legalize prostitution.
The Mann act illustrates another basic issue: The proliferation of federal crimes. There are federal crimes such as treason cited in the Constitution. And there are crimes such as counterfeiting or copyright abuse implied in the Constitution or inherent to the government, such as the assault or murder of federal officials. However, the use of interstate commerce to create federal jurisdiction creates a federal common-law criminal system unintended by the framers. Michael Vick, for example, was charged first in the federal system and just now under a similar state law. Do we need two criminal codes? Are two codes constitutional?
Finally, there is an anomaly that Gov. Tim Kaine can correct. Under Virginia law, the solicitation of a misdemeanor is a misdemeanor but the solicitation of a felony is a felony. Several persons were prosecuted for the more serious offense solely because they sought gay sex in a park. Virginia once made even consensual sodomy a felony. All these felony cases should be investigated and all the consensual felony offenders pardoned so they can vote and exercise their civil rights. The governor could set up a board to review the cases and make recommendations.
Still concerned about such unholy sexual activities? I would suggest moral standard bearers have less to fear from a libertarian government than one that seeks to regulate every aspect of their lives. It's time to pardon the innocent offenders under the Mann Act and those convicted for a felony in Virginia unfairly and rein in the power of the federal government to have a general criminal code. S
Elwood Earl Sanders Jr. is a Richmond-based attorney who has written several scholarly legal articles.
Opinions expressed on the Back Page are those of the writer and not necessarily those of Style Weekly.