Roughly 7 million children are the victims of human trafficking each year. Former President Barak Obama addressed this domestic and global problem when he signed into law the Justice for Victims of Trafficking Act of 2015 (JVTA) on May 29, 2015.


The American Bar Association in January 2018 said the purpose of JVTA is to provide “restitution and justice for victims of human trafficking and child pornography by imposing fines and penalties against offenders.” The money the courts order criminal defendants to pay through fines goes into the Domestic Trafficking Victims Fund for, as the ABA noted, “grants to enhance programs that assist trafficking victims and provide services for victims of child pornography.”


Besides production of child pornography, the JVTA covers the following offenses:


  • Debt servitude, slavery, and trafficking of people;
  • Sexual abuse;
  • Sexual exploitation and other abuse of children; and
  • Transportation of illegal sexual activity and related crimes.


Congress elected to place production and distribution of child pornography under the purview of the JVTA because of its domestic and international demand and the relative ease by which it can be distributed through the Internet. The JVTA permits a court to impose a $5,000 fine on anyone convicted of any of the aforementioned offenses, in addition to any other fines and/or orders of restitution.


JVTA in Child Pornography Cases


On November 8, 2018, the Fifth Circuit Court of Appeals in Graves v. United States had an opportunity to interpret the broad reach of the JVTA.


In June 2017, Gary Don Boyd Graves was indicted for possessing pornographic images of pre-pubescent children. He entered into a plea agreement with the government. The parties agreed to the following minimum and maximum penalties faced by Graves:


  • Imprisonment;
  • Fine;
  • A term of supervised release;
  • A mandatory special assessment of $100 and an additional mandatory special assessment of $5,000 if the court found Graves not indigent;
  • Restitution;
  • Costs of incarceration and supervision; and
  • Forfeiture of property.


The district court sentenced Graves to 108 months in prison followed by 10 years of supervised release. The court not only ordered Graves to pay a mandatory $100 special assessment but ordered him to pay an additional $5,000 special assessment pursuant to the JVTA.


How exactly did the district court determine that Graves was not indigent under the provisions of the JVTA?


Determining Indigency


First, the court-ordered presentence investigation report (PSR) detailed information about Graves’s employment history and current financial status. Graves refused to provide the probation officer preparing the PSR with requested information about his finances, so the officer relied upon a previously-submitted financial affidavit Graves submitted to the court concerning his financial condition at the time of his arrest. The probation officer used this affidavit to reach the following financial conclusions in the PSR:


  • Graves had no substantial assets;
  • He had $874 in debt; and
  • He had a monthly cash flow of $50.


The PSR recommended that the $5,000 JVTA special assessment should be imposed based on Graves’s future capacity for employment. Graves objected to this PSR recommendation, telling the court it should only consider his financial condition at the time of sentencing when determining whether to impose the JVTA assessment.


Graves later provided the probation officer with the additional financial information showing he had income of $700 a month and up to $245 a month in discretionary income. This belated financial information prompted the officer to file an addendum to the PSR, recommending to the court that the JVTA special assessment be imposed because, based on Graves’s current income, he “could pay a $5,000 assessment, in-full, in less than 2 years.”


Defendant Argues Indigent at Time of Sentencing


Apparently not taking into consideration just how hard it is for a convicted/registered sex offender to secure meaningful, long-term employment, the probation officer suggested to the court that Graves would have “increased earning potential” after his release from prison. At his sentencing hearing Graves disagreed with the PSR’s assessment about his future financial potential, telling the court it should not impose the JVTA special assessment because he was “most certainly indigent” at the time of sentencing.


The Government rejected this argument out of hand, urging the court not to consider the JVTA special assessment in light of Graves’s current financial status but rather his future earning potential. Prosecutors informed the court that Graves had a high school education, had taken some college courses, and was “able bodied” enough to maintain future employment.


The district court accepted the Government’s argument, finding that Graves “is not indigent based upon his potential future earning capacity” and promptly imposed the $5,000 JVTA special assessment.


This was the issue squarely before the Fifth Circuit on appeal: whether a district court can consider future earning potential in JVTA special assessment cases when a defendant is currently indigent when standing before the court facing sentencing. The JVTA commands that a district court “shall assess an amount of $5,000 on any non-indigent person” convicted of any of the crimes enumerated in the statute.


Indigent Today or at Any Time in Future


The Fifth Circuit concluded:


“Not only must the special assessment be imposed today, the responsibility to pay it also persists well into the future. To increase the possibility of assessments would be collected and used to help victims, Congress stipulated the obligation to pay the assessment would continue for twenty years after the release from imprisonment or the entry of judgment, whichever is later. The duration of that statutory obligation further underscores that a district court must impose the assessment unless it finds the defendant could not pay it today—or at any point in the future.


In rejecting Graves’s argument that indigency must be considered with finality at the time of sentencing, the appeals court said this argument “ignores the statutory context that informs the meaning of ‘non-indigent’ … the statutory context demonstrates the assessment of a defendant’s financial condition should consider future earning capacity, especially in light of the fact that the statute authorizes the payment obligation to last for twenty years after judgment.”


In effect, Graves must spend roughly seven years in actual custody. Under the federal Bureau of Prison Pay Scale, he will earn $0.12 to $0.40 per hour for a 7-hour work day. Some of these prison wages will go toward satisfying the $100 special assessment and the $5,000 JVTA special assessment.


In 2016, the Prison Policy Initiative reported that 57% of the men between the ages of 27 to 42 sent to prison were making an average of $22,000 a year before incarceration. Their future earning potential, especially for registered sex offenders, decreases substantially post-incarceration.


Failure to meet the JVTA special assessment obligation could also result in Graves’s 10-year supervised release being revoked.