The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Pardon Jack Johnson
The White Slavery Panic of the late 19th/early 20th centuries caused Congress to pass the vaguely-worded Mann Act. It allowed the FBI and prosecutors broad discretion to go after individuals they didn't like.
President Trump is considering a posthumous pardon for Jack Johnson, the first African-American world heavyweight champion boxer (1908-1915). The flamboyant Johnson was convicted of violating the White Slave Traffic Act (otherwise known as the Mann Act), which prohibited transporting women over state lines for an "immoral purpose." Johnson's crime was essentially that he had white girlfriends, and he liked to flaunt both them and his wealth.
I hope Trump pardons him. In 2016, the U.S. Commission on Civil Rights (on which I sit), in a rare moment of unanimity, urged President Obama to pardon Johnson, but he left office without having done so. Maybe Trump will act. It would be a symbolic act, but symbols matter.
The tendency today may be to see Johnson's case purely through the lens of race. But it wasn't just African Americans who were the victims of excessive prosecutorial discretion in the enforcement of the Mann Act. Among those arrested for violations were Charlie Chaplin, Frank Lloyd Wright, and University of Chicago sociologist William I. Thomas. And it was sometimes used to prosecute fundamentalist Mormon polygamists, since (to the disappointment of zealous prosecutors) federal law did not actually prohibit the practice of polygamy.
The vaguely-worded Mann Act was a product of the panic over "White Slavery"—a term then in vogue for forced prostitution. Of course, the concern over forced prostitution was not completely foundationless. Some women had indeed been forced into prostitution, although the fear that women were being snatched off the streets right and left and forced into prostitution was sensationalized and overblown. "White Slavery" was one of "the" politically correct issues of the day. Clergymen preached against it. Artists depicted it. And it sold lots and lots of newspapers. But not nearly as many women were being forced into prostitution as one would think from reading those reports. Intentionally or not, the Social Purity Movement (the arm of the Progressive Movement that pushed for the Mann Act) was causing women to live in fear. My own grandmother was a victim. She was not allowed to go to college, because her parents feared it would be too dangerous.
Congress passed the Mann Act in haste. Its shockingly vague language outlawed transporting across state lines "any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose."
It could thus be used to cover not just forced prostitution but Labor Day weekend jaunts to the beach with a woman to whom the accused was not married. Immoral? Maybe. Worthy of calling out the FBI? For most Americans, probably then and now, the answer would be "no."
Federal prosecutors appreciated the statute's vagueness. It gave them the discretion to prosecute individuals they didn't like for driving a woman across a state line for a lovers' tryst. This is not what members of Congress thought they were prohibiting. But it is what they wrote, so it is what we got. Mercifully, the language of the Mann Act has since been amended to tighten it up.
I wrote about the White Slavery Panic in my Commissioner Statement in the Commission's Sex Trafficking Report.
