"These Illegals": Immigrants as Criminals and Commodities in the American Free Market

10/29/2016 "These Illegals": Immigrants as Criminals and Commodities in the American Free Market

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"These Illegals": Immigrants as Criminalsand Commodities in the American Free Market

by DAN STAGEMAN

The strangers: crime and labor in contemporary AmericaOn a Thursday morning, I take a walk down Broadway, my two-year-old son perched onmy shoulders. Broadway is the main thoroughfare in Astoria, the New York Cityneighborhood I call home; here, the streets are lined with shops and sidewalk cafes, andevery block seems to feature a double-parked car, forcing traffic to a single-lane crawl asit moves toward the highways at either end, leading to Manhattan and the suburbanlawns of Long Island. For three blocks or so, we pick our way through one crowd andthen the next—knots of three, four, a half-dozen brown-skinned men in work boots andlong-sleeved shirts, chatting with each other in Spanish and the myriad Amerindiantongues of Central America, or sitting quietly on stoops. It is past ten AM and there areno pickup trucks in sight. I wonder where these men will go when they finally decide togive up on the work day; I wonder how they will spend the afternoon. Occasionalglances in our direction make me think of sons at home, thousands of miles and yearsaway.

Historically Greek, Astoria is now one of the most ethnically diverse places in the world,a distinction that won it a profile in National Geographic.[1] My landlord here isCroatian, my neighbors Brazilian, the owner and sole employee of my corner shop,Egyptian. The corner at the other end of my block features an Indonesian Muslimmasjid, the School of Urban Ministry (from which teenagers with Southern accents andmatching t-shirts emerge to visit their evangelical fervor on Times Square), and aJehovah's Witness temple, with signs in four languages announcing times of worship. Ido not ask for papers when I make a purchase, strike up a conversation, or sit down withanother parent to watch our children play together in the park, but I often wonder aboutthe stories.

The same holds true for the knots of men on Broadway, who may be from a hundreddifferent places, or one. Immigration often works this way, with towns or villagesseemingly transplanting themselves wholesale to a few square miles of American soil,following family, following work. These men may be from Mexico, from Michoacán orZapotecas; they may be from Honduras, El Salvador, Guatemala; they may even be fromEcuador or Bolivia. I do not stop to ask—I imagine their anxiety at the lost work day isdiscomfort enough for now. I know what my neighbors say, though—the Croatians, theBrazilians, the Italians: "These Mexicans," they say, in the handful of conversations thatget this far, "they aren't like us. They just won't learn the language."

The men on Broadway are outsiders in the most diverse neighborhood America has tooffer, a place where the standards for community membership are as fluid as anywhereon earth, a place where a smile might get you an invitation to dinner, but fifty years ofresidence can't guarantee you membership in the local social club. In this respect, theyare casualties of a national discourse on immigration that has become so attenuated as tochange the meaning of the word itself. What is “illegal immigration” in an era whenRepublican presidential candidates Herman Cain and Michelle Bachman publicly

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propose lethally electrified border fences, and U.S. military personnel manning the RioGrande with live ammunition and “shoot to kill” orders?[2] Likely unauthorized to enterthe territorial United States, their presence here undocumented, the day laborers ofBroadway represent the contemporary archetype of the immigrant, or the “illegal.” TheIrish aunt who overstays her tourist visa, the Lithuanian second cousin spending herSummer abroad, babysitting in the daytime and clubbing at night—these are members ofa different category, a different class, to whom the labels, along with the arguments forsummary execution, no longer apply. The discourse of illegal immigration is a discourseof work boots and Spanish, of walls and fences, of resentment and exclusion.

Still, whatever their anxieties, the men lining the steps of Astoria's public library do notseem afraid, nor skittish at the sound of a siren or the passing of a patrol car. In thisrespect, they are substantially better off than their countrymen clustered in Wal-Martparking lots from Phoenix to Huntsville to Atlanta, and a thousand cities and smalltowns in between. In these places, as well as dozens of counties and municipalities acrossthe country, the law has caught up to the discourse: under Arizona's now infamousSB1070, and under the copycat laws passed in recent months in Georgia and Alabama,the men awaiting the opportunity of a day mowing lawns or hanging drywall are morethan just outsiders: they are criminals trespassing on sovereign soil, on asphalt intendedexclusively for the bootprints of American citizens and their invited guests. And, in theeyes of their critics, their crimes do not end at trespassing:

We know that these illegals get a lot of free services from us all. Health care at the emergency roomsin our hospitals, police protection, schools, etc., are evidently being supplied for free since most ofthese illegals do not contribute taxes to these expensive services. In some states, our representativeswould offer free higher education to these people as well. In addition, many of these illegals are fillingup our jails and prisons, another service given them that could cost around 40 thousand dollars perinmate per year. While our jails and prisons are now at the edge of overflowing and most of the newinmates are illegals, is it any wonder that we are in the trouble we are in today in America?[3]

Douglas E. Walters, writing in a commentary for the now-defunct conservative webmagazine Chronwatch.com, encapsulates the link between contemporary nativist discourseon labor migration and the state laws that represent policymakers' most concreteattempts to codify it. In this discourse, the notion of criminality is pervasive: as if inanswer to the signs, featured at nativist rallies, that read "What Part of Illegal Do YouNot Understand?", Walters lays out the clear conceptual links between unauthorizedborder crossings and popular notions of criminality. These criminals are crossing ourborders to steal from us the essential services supported by our hard-earned tax dollars,and fill up our prisons.

Filling up prisons is, of course, what criminals do, and though Walters is not specificabout the acts that lead unauthorized border crossers to occupy prison bunks at a forty-thousand-dollar annual price tag, other commentators are pleased to fill in the blanks: noless an authority than Arizona governor Jan Brewer claimed in a recent gubernatorialdebate that "the majority [of unauthorized border crossers] are coming here and they'rebringing drugs . . . they're extorting people and they're terrorizing the families."[4]Noteworthy only for its absence from Walters' narrative—and the broader nativistworld-view it represents—is any idea of the work, the intensive physical labor at lowwages, that is the real story of the undocumented immigrant, and the overwhelmingrationale for any illegal act of unauthorized border crossing.

Walters' Chronwatch bio lists him as the author of Pool Tables 101, and a further bio on thatbook's website states that he "was CEO of two Billiard Retailers in the Rocky Mountainmarket from 1985 to 2005."[5] It's difficult to know what Walters' hiring practices wereduring his days as a retailer of pool tables and associated recreational products, but,generally speaking, certain aspects of his chosen business—delivery, for instance, alongwith the heavy lifting involved in the installation process—are likely to draw upon



unauthorized immigrants for some proportion of their labor pool. Hispanics—andMexican immigrants in particular—have been well-represented in the "Repair andMaintenance Services" and "Transportation and Warehousing" sectors,[6] where they aremore likely to unload trucks than drive forklifts, more often found sweeping floors thanrepairing refrigeration systems. Though significant, their representation in these fields isadmittedly nowhere near the 17 percent they comprise of the American constructionlabor force, nor the one in four agricultural workers who are undocumented. It'scertainly possible that Walters' hiring practices were entirely in line with his expressedbeliefs—that his employees, subcontractors, and suppliers were vigorously documentedto the extent of the legal means available. Or perhaps Walters enforced an unwrittencompany policy to exclude anyone with brown skin and the hint of an accent from thepayroll.

It's also possible, however, that Walters chose another model for his labor practices, onenot unfamiliar to his fellow nativists. Perhaps he followed in the footsteps of formerCNN commentator Lou Dobbs, who railed publicly against unauthorized immigrantswhile employing them on his horse ranch,[7] and Texas State Representative DebbieRiddle, who wrote legislation prescribing steep fines and jail time for the newlycriminalized offense of hiring an unauthorized immigrant, with an exception for anyone"hiring a maid, a lawn caretaker or another houseworker . . .'for the purpose of obtaininglabor or other work to be performed exclusively or primarily at a single-familyresidence.'"[8] The point is not that these nativist commentators, politicians, and smallbusinessmen are hypocrites—though that they may well be—but that their nativism isfunctional: no intentional hypocrisy is required for these individuals to draw directeconomic benefit from a culture of exploitation their viewpoints help perpetuate.

For Doug Walters, for Lou Dobbs, for Representative Riddle, undocumentedimmigrants represent “the other,” a social construct that the esteemed Britishcriminologist Jock Young explains with reference to an ancient and universal culturalsymbol:

The simplest notion of what constitutes a demon, a folk devil, an enemy for any particular culture isthat it is what they are not. It is the embodiment of all they stand against, a violation of their highestprinciples, ethics and values—it is, in short, constituted by negativity—it is the black and white ofmoral photography.[9]

Indeed, it was not so long ago in American history that the other was defined in quiteliteral black and white terms—and economic considerations have been consistently tiedto the rules that determine and maintain in-group and out-group membership.

Slavery and the convict lease: leveraging the: “criminal” label for laborThe iconography of slavery, along with its basic premise of human beings as property,makes it difficult to relate to other forms of labor exploitation. Associating unauthorizedimmigration with antebellum African American slavery, therefore, might look like aconversation stopper, something akin to Godwin's Law (the rule of online rhetoricwhich states that when a debater compares his opponents to Nazis, he has lost theargument by default). Laborers who can say no to a day's work under conditions theydon't find satisfactory, workers who can pack their bags and try their luck selling theirstrength and skills to another boss in another town—these are not slaves. They havefreedom of movement, they have the right of refusal. They are neither chattel, norproperty; they have not lost the right to make their own life decisions, large or small.

Step away from the humanist lens through which history has taught us to look at slavery,however, and we can begin to engage with the reality that human suffering was not theinstitution's purpose: in economic terms, we might consider it as a “free marketinnovation,” invented to allow folks with capital to turn a set of existing and evolvingeconomic conditions to their own advantage, to maximize their own benefit. Slave labor



was reliable, stable, and cheap, for all of the obvious reasons; but, perhaps moreimportantly, it came with a lot of highly developed, tried and trusted legal, social, andcultural packaging that allowed the folks who benefitted from it to enjoy those benefitswithout a lot of messy human considerations getting in the way.

Some of the least desirable jobs—today, 150 years ago, or 1500 years ago—involve anodd sort of intimacy between the server and the served; think of the women who changethe sheets on your hotel bed or wash your underwear, or even the fellows who trampthrough your foyer and up the stairs to hang new drywall in your guest bedroom. Itmakes solid cultural sense to require a certain distance from those who serve us: withdistance, we don't have to think of them or treat them as guests when they come intoour homes, or accord them the rights that guests traditionally receive in the vast majorityof cultures worldwide; we needn't concern ourselves with their knowledge of theintimate details of our personal lives, or with the judgments they might pass on thosedetails. We can generate the required distance in any number of ways, from politedisinterest to active hatred, but all of these distancing strategies involve othering—limiting the subject-hood, personhood, or humanity of the servant—and all of themcarry the concomitant economic benefit that we need not consider too deeply thehumanity of these servants when it comes to the remuneration necessary to provide fortheir human needs. We certainly needn't look to our own human needs as a rule ofthumb—if the servant is less than human, after all, any such basis of comparison wouldbe patently absurd.

In essence, the cultural trappings of slavery—from such traditional quasi-religiousnotions as the “white man's burden” to pseudo-scientific ideas about black racialinferiority—worked as a sort of psychological armor for the slaveowner, circumscribingempathy for the slave wherever it needed to be cut off. Certainly, any number ofslaveowners might have professed to treating their slaves with dignity; they may alsohave loved their hunting dogs like children, but they owned them nonetheless. Returningto Young's concept of othering, it was difference that made it psychologically palatablefor Southern whites to treat their African-descended slaves as dogs; differences in skintone and features may have been the ultimate basis for categorizing slaves as animals, butdifferences in language, culture, and customs were important parts of the package too. Atleast in part, it was the documented evidence of these differences being chipped away—of African-descended slaves becoming African Americans, embracing Christianity,becoming literate, writing down and publishing compelling and relatable humannarratives—that fueled the Northern abolition movement.

The same process elicited fierce resistance from white Southern society, which began toput in place increasingly stringent measures to arrest the humanization of its slavepopulation: legal restrictions were placed on slave access to education (literacy inparticular) and the freedom to congregate; slaveowners made a conscious effort to breakup families and social networks. These efforts reveal a key defining feature of the kind ofradical free market ideology that was prevalent in the antebellum American South, anideology that closely resembles the economic gospel of the contemporary nativist TeaParty: law, culture, social relations and social norms are all pressed into the service ofprofit, rather than the other way around.

Ultimately, in the conflict between the Confederacy's need for a fixed and reliableagrarian labor force, and the Union's growing need for a mobile and flexible industriallabor force, industrialization won the day. The conquered South chafed under theimposition of new laws and new social arrangements; and, though Southern whitesclawed back their political hegemony from the radical cultural change represented byReconstruction within a decade or so (depending on the state) of the war's close, theamended Constitution precluded the key cultural feature of the antebellum period—slavery—from returning with it. There was no going back to the way things were; but the



“New South” had its own growing industrial base, and its previously fixed labor forcewas uprooted and already moving toward the factories of the North.

Clearly, only another “free market innovation” could solve this precarious situation—and it arrived in the form of the convict lease. The historian Alex Lichtenstein describesthe evolution of this practice from slavery in his history of convict labor in post-bellumGeorgia, Twice the Work of Free Labor (1996), with reference to noted sociologist OrlandoPatterson: "[I]n the New South, the ‘social death’ entailed by the enslavement of ...laborers was ostensibly rooted in their criminality, not just their race. This marked a shiftfrom what Patterson has called "intrusive" slavery to "extrusive" slavery."[10] In“intrusive” slavery, the black African was an intruder in white Southern society, whosesupposed racial inferiority justified—or even necessitated—his enslavement. The“extrusive slave” was an "internal exile," rightfully stripped of community membershipfor violating the community's standards—and rightfully enslaved as his punishment fordoing so. The distinction may seem academic, but in the face of the newly passed 14thAmendment to the U.S. Constitution, it was anything but: the text of that documentreads, in part, "Neither slavery nor involuntary servitude, except as a punishment for crimewhereof the party shall have been duly convicted, shall exist within the United States, or any placesubject to their jurisdiction."

What was the convict lease? The answer requires some understanding of the South's pre-and post-Civil War criminal justice system. In the antebellum period, Southern stateprison populations were (in comparison to the North) generally quite low, and almostexclusively white; after emptying out during the war years (because most prisoners werepressed into service in the Confederate army), the renewed and refurbished systems ofthe postwar “New South” housed a convict population that was about 90 percent black,with little variation in this proportion between states.

Why this dramatic change in prisoner demographics? Before abolition, black slaves wereprivate property; in a very real sense, they could not be defined as criminals. The socialnorms of Southern society—and the laws that codified them—did not apply to slaves. Ifa slave needed to be disciplined or punished, his owner—as opposed to the state—decided the form that punishment would take. The power of slaveowners to punishslaves extended to life and death, with no requirement for due process, and minimal legalrestrictions on how and when these punishments could be meted out.

Private punishment ended with abolition—as a legally sanctioned practice, at least.Southern laws, and the state governments that enforced them, had to adjust to the newparadigm of black freedom, just as plantation owners and the growing class of Southernindustrialists did. Given the close relationship between post-Reconstruction political andeconomic elites (as often as not, the two were one and the same, with political andeconomic dynasties being established in tandem within the same families, or even by thesame individuals), it should come as no surprise that political and economic interestsconverged in the response.

Post-Reconstruction legislatures (the self-styled “Redeemers” of the white Southern wayof life) first solidified their victories over federal intrusion and black empowerment bypassing laws (poll taxes and literacy tests) to suppress the black vote; they then moved onto economic concerns. Black freedom of movement was curtailed with vagrancy laws;black freedom of trade (especially the informal markets known as “deadfalls,” set up tocircumvent the trade monopolies of white economic elites) was curbed through laws thateffectively mandated white supervision for any purchase or exchange of merchandise.

Unsurprisingly, enforcement of these laws led to the entrance of hundreds of free blacksinto the criminal justice system, where they received harsh and lengthy prison sentences.The convict lease was born, in part, out of a determination on the part of the whitepolitical elite that these new black prisoners not become a burden to already strained



state budgets. Southern states had burgeoning prison populations, overwhelminglycomposed of black criminals deserving (in the eyes of their captors, at any rate) of theharshest punishment; Southern plantation owners and industrialists had an acute laborshortage, due in no small part to their unwillingness to pay a living wage to a labor forcethat had so recently been their private property. The convict lease solved both problems.

Though the details of the convict lease varied from state to state, its basic structure hadspread to every former Confederate state by the 1880s. State (and later county) prisonerswere leased—for a fixed monthly or annual fee, sometimes on a per-head basis,sometimes as a package—to a private interest, who was responsible for feeding, housing,and securing them for the length of the lease. In return, this private interest received thebenefit of the prisoners' collective labor, with minimal restrictions and less oversight. InFlorida, turpentine camps predominated; in Mississippi it was plantation owners; inAlabama, for nearly fifty years, two giant coal-mining conglomerates monopolized theentire state prisoner population.

The convict lease was a great boon to both the states and the capital interests whoengaged in it. For some states, it was the key to fiscal solvency during a period of lowtaxes and dramatic austerity. It allowed lessees to essentially capitalize their labor costs:after what was in most cases a one-time annual payment to the state, lessees' productivitywas essentially limited only by what they could physically coerce out of their convictlabor force, with minimal outlays for food, shelter, and security. Moreover, lessees hadlittle or no practical reason to consider the long-term health or well-being of theirconvict laborers: assuming, for instance, that a convict serving a two-year sentence was infact released after two years, it was in the lessee's interest to get as much productive laboras possible out of the convict in those two years. This dynamic is on stark display in thequote that gives Matthew Mancini's 1996 history of the convict lease its title: One Dies,Get Another. Supposedly delivered by a Southern delegate to the National PrisonAssociation's 1883 annual convention, the quote reads: "Before the war, we owned thenegroes .... If a man had a good negro, he could afford to keep him .... But theseconvicts, we don't own 'em. One dies, get another."[11]

From the perspective of the governments and capital interests who benefitted from it,convict leasing was a tremendously successful free market innovation. In manyimportant respects, it represented an improvement on the economic model of slavery,which was effectively a feudal system, better suited to an agrarian economy than anindustrial one. Culturally, the criminal label served as an essential companion toinstitutionalized racism; legally, it served as a stand-in. Black convicts were rightfullydenied their freedom for specific offenses against clearly defined statutes, and thuslabored to atone for their crimes. If blackness and criminality were to become, in theeyes of the white elite, largely interchangeable, a plausible argument could be made thatthis was a matter of circumstance rather than ideology. The white elite could continue toaccumulate wealth and enjoy service and subservience with a clear conscience.

Contemporary free market innovations in criminal justiceThe convict lease died a slow death in the early 20th century, with the last state—Alabama—dropping the practice in the early 1930s. The following years broughtparadigm shifts in labor relations, race relations, and correctional practices alike.Unionism and the Civil Rights Movement are sufficiently well-documented to pass overhere; as for corrections, prison populations remained relatively stable for some fiftyyears, dominated by a philosophy and practice that stressed indeterminate sentencing(parole for good behavior) and rehabilitation.

The 1980s and the Reagan presidency turned many of these trends on their heads: unionmembership began to drop off, income inequality began to expand, the U.S. began itsconversion from a manufacturing to a service-dominant economy, and, most



importantly, prison populations began to skyrocket, disproportionately impacting poor,city-dwelling African American young men. The “criminal” label began to reacquire theracial component of the convict leasing years, and, while prisoner labor largely remainedan economic afterthought (as it still does today), a prison construction boom broughtjobs to the same white rural communities that were rapidly shedding factories, andincreased their political clout by counting non-voting black prisoners as part of theirpopulation.

The “law and order” movement took root among white ethnics during a time ofgenuinely high crime rates, a time when venturing into the commercial areas of majorcities might well have carried undue risk of victimization, violent or otherwise. Itsusefulness as a cultural, political, and economic force, however, continued long after thiswas the case: as rates of the most common violent crimes dropped precipitously fromtheir peak in the early 1990s, the disproportionate imprisonment of young AfricanAmerican men continued to surge. The experience of imprisonment has become acommon theme of urban black youth culture, bringing prison tropes into the street andinto the media: the origin of the “saggy pants” phenomenon, for instance—so often atarget of condemnation for black elders and the favored pundits of white ethnics alike—stemmed from the universal prison policy of confiscating incoming prisoners' belts.

Such cultural tropes provided a sort of feedback loop that fed from black urban youthculture, to the media, to policy makers and law enforcement officials, and back again—the reinforcement of a “criminal” stereotype, firmly rooted in race but ostensiblyseparable from it. In part, it was this rarely questioned stereotype that allowedincarceration rates to continue skyrocketing, with little public scrutiny, criticism, ororganized resistance, despite crime rates that were trending just as steeply in the oppositedirection. Michelle Alexander has written eloquently about this subject in The New JimCrow; gadfly sociologist Loïc Wacquant has spent much of his career charting the rise ofincarceration against the simultaneous dismantling of the welfare state. My own take isthat this modern deployment of the criminal label served a purpose very much akin to itsuse in post-Civil War convict leasing—albeit adapted for the new rules of the post-CivilRights context of globalization and rapid economic change.

At first glance, the economic benefits of mass incarceration don't appear to hold up. Indollar for dollar terms, it is considerably more cost-effective to support people ongeneral public assistance (welfare) than it is to pay for their incarceration. Such a practice,however, represented a redistribution of wealth (however slight) that white ethnics wereloath to accept: not only were many urban welfare recipients themselves black, but theurban bureaucracies that managed the system had, in part through affirmative action andresidence requirements, become dominated in many cities by the black middle class.Imprisonment, on the other hand, meant short-term construction and long-term serviceemployment for the small-town and rural white ethnics who were beginning to feel thepinch of the manufacturing decline. In a time of general economic prosperity (throughthe technology bubble of the '90s and the real estate boom of the 2000s), burgeoningprison budgets—and the taxes that supported them—were an afterthought, forpoliticians and voters alike.

New economies, new criminalsIn 2008, the “Great Recession” arrived to change this equation. Crashing property valuesand rising unemployment resulted in cratering state and local tax revenues, and almostovernight, the raw numbers—in business-speak, the “ROI” (return on investment)—ofmass incarceration began to draw the kind of scrutiny from voters and policy-makersthat years of alarm-sounding by academics and advocates had failed to produce. Thecorrectional tax dollars that had until this point been sanctioned as a sort of de factosubsidy for rural white America (at the obvious expense of urban black America) weresimply no longer there, and state politicians scrambled to play catch-up on years of



research into innovative sentencing and alternatives to incarceration—lest they, likeCalifornia, be forced by economic circumstances to release thousands of prisoners atonce, with no politically palatable justification, no plan to reassure an anxious public.

The speed with which state politicians were able to put such plans in place led to the firstrecorded drop in U.S. state and federal imprisonment rates in more than twenty years,dropping from 507 prisoners per 100,000 population in 2007, to 504 in 2008, and afurther drop to 502 in 2009;[12] fewer prisoners were sentenced, sentence lengths wereshortened, previously determined sentences were revised (as in New York, with therepeal of the infamous Rockefeller drug laws), and the “law and order” backlash, when itarrived (as it did in a 2010 effort, driven by county prosecutors, against an innovativecommunity corrections program in Michigan), was largely muted by the Tea Party's full-throated call for spending cuts. In the relentless pursuit of austerity, correctional officerduty rosters were drastically reduced (resulting, in some prisons, in prisoner-to-staffratios in the area of 100-to-1 on certain shifts), and remaining guards were moved fromstandard eight-hour shifts to grueling twelve-hour rotations, with minimal protest fromthe Corrections Officers’ newly toothless unions.[13]

Such measures were very much in line with the new conservative dogma of low taxes,government austerity, the demonizing of public employees, and the dismantling of theirunions. For the private interests and municipalities which had invested significant capitalin the correctional status quo, however, the rules had changed in the middle of the game,and they faced significant losses as a result. The Correctional Corporation of America(CCA), the largest private corrections firm in the country, saw the average occupancyrates in its facilities fall precipitously, from 98.2 percent in 2007, to 95.5 percent in 2008,and 90.7 percent in 2009—a disastrous situation for a corporation that relies on per-bed/per-day prisoner fees for most of its income.[14] Municipalities that staked theireconomic future on speculative prison construction—from Berlin, New Hampshire, toGrayson County, Virginia, to Littlefield, Texas—found themselves on the hook formortgages and interest payments on empty prisons, a devastating total loss oninvestments that were to be their economic salvation.

These interests found a possible salvation in the intensifying nativist backlash againstunauthorized immigration, a dynamic that paralleled and drew its justification from thesame economic anxiety responsible for the falling incarceration rates that threatenedtheir established business model. While unauthorized immigration across America'ssouthern land border is as old as the deep disparities in income and quality of life thatdrive it, the raw number of laborers surged throughout the late 1990s and the early 2000sas a direct consequence of the North American Free Trade Agreement (NAFTA), and itscompanion, the Central American Free Trade Agreement (CAFTA). The primary reasonfor this surge was as simple as it was preventable: no longer protected by the tariffs andsubsidies that became illegal under NAFTA and CAFTA, Mexican and Central Americancorn—produced largely by small farmers using antiquated agricultural equipment andpractices—could no longer compete with U.S. produced corn in their home markets.Technological advancements and economies of scale meant that American farmers couldproduce corn more cheaply, and sell it more cheaply than its Mexican and CentralAmerican equivalents, while still making a profit. As a result, Mexico's rural economyeffectively collapsed, and thousands of small farmers found themselves reduced tosubsistence agriculture, unable to pay mortgages and taxes, while thousands of associatedtradesmen found themselves unemployed. The already established logic of risking thetrip north for exponentially higher incomes and an improved quality of life became, overthe course of a few short years of “free trade,” an imperative for many Mexicans: gonorth and prosper, or stay home and starve. Between 1990 and 2000, the number of U.S.residents born in Mexico or other Central American countries doubled, from 5.5 to 11million[15]; by 2009, the number had increased to 14 million.[16]



These later numbers, however, hide a precipitous dropoff in risky border crossings—onethat, perhaps unsurprisingly, coincides with the onset of the aforementioned “GreatRecession”: between 2000 and 2007, an average of some 750,000 individuals crossedU.S. borders illegally; by 2009, that average had been cut in half and more, with only300,000 thousand making the trek.[17] At the same time, the temperature of Americanpublic discourse and political rhetoric on the subject went sharply in the oppositedirection, fueled in large part by economic anxiety—and the racial animus in which it alltoo frequently finds its expression.

Labor exploitation does not require hatred or racism, but it does thrive in their presence.What’s more, ideologies of othering—particularly when codified as the law of the land—open up dimensions of exploitation that might previously have been unimagined—orunimaginable. In a laissez-faire, free market system, government makes policy based onthe ideological priorities of its most vocal citizens (who are also, not coincidentally,primarily composed of the white ethnics who have the most invested in the privatesector economy),[18] then leaves it to private interests (as well as the municipal andcounty government entities that pattern their decision-making increasingly after thecorporate model) to connect the dots that translate policy into profit.

In the case of unauthorized immigrants, the prevailing model for labor exploitation,throughout most of the 1990s and into the 2000s, required a relatively consistent balanceamongst a host of economic and social factors. It required that a vague suspicion orgeneralized cultural distaste dominate popular discourse about unauthorizedimmigration, but it also required that most Americans thought little enough about issuesof labor (or themselves as laborers) to take no more than a passing interest in thisdiscourse. It required sufficient enforcement (in the form of sweeps, detentions, anddeportations) to hold down wages, suppress labor agitation, and keep the undocumentedpopulation wary, quiet, and largely out of sight, but not so much as to push unauthorizedlaborers out of whole areas and industries, not to leave crops un-harvested or othernecessary work undone. Perhaps most of all, it required a widely held sense of economicprosperity, of the sort that led even Americans in the lower half of the class structure toaspire to—and actually purchase—the kinds of middle-class goods and services thatunauthorized immigrants produced and provided at significant discounts: lawnmaintenance services, remodeling and new home construction, restaurant food, freshproduce, and so on.

With the recession, this model collapsed. And—just as the innovation of the convictlease arrived in answer to the destruction of slavery, 150 years before—the exploitationof unauthorized immigrants is proving remarkably persistent in the face of dramaticchange. And it is nativism, not the economic conditions that drive it, that makes thisexploitation possible. As the aspirations for middle-class goods and services contractswith economic uncertainty, and the purchasing power so long provided by easy creditputs these goods and services realistically out of reach for a growing segment ofAmericans, so the job market for undocumented workers has contracted severely.Without the lure of jobs, the motive for living a furtive life in an unwelcoming land isnot what it was—as the steadily falling number of unauthorized border crossers reflects.Yet as sharply as this number has dropped, the number of forcible deportations hascontinued to increase: from 188,000 at the opening of the decade, to nearly 400,000 in itsfinal year.[19]

Why go through the trouble to locate, detain, process, and deport individuals who mightlogically be expected, in the absence of jobs, to leave of their own accord? Why notsimply let the push of unemployment and the pull of family, culture, and land take itsnatural course? The answer is, of course, profit. The innovation of immigrant detentionis an ingenious one, an innovation that allows profit without labor, that essentiallydispenses with exploitation in favor of a sort of extraction—an innovation that treats



unauthorized immigrants as something more akin to a natural resource rather thanproductive workers. The dynamics of this process are relatively simple: while detentionfacilities are largely a mix of privately owned and operated facilities[20] and repurposedlocal jails still owned and operated by the counties that built them, it is the federalgovernment that picks up the tab—to the tune of $120 per detainee, per day.[21] Bycontrast, CCA takes in around $40 dollars per day for housing more traditional state andfederal prisoners—the kind who have been found guilty by a criminal court, andprocessed by the criminal justice system.

Viewed as a natural resource within the framework of the detention model, the profitpotential for unauthorized immigrants is staggering: in Texas alone, there are 1.65 millionresident unauthorized immigrants. To detain and deport them all, at $120 per day for athirty-day average stay in detention (which is the actual average stay before immigrantsare processed for deportation and forcibly removed), would bring revenues of nearly $6billion to contracted county jails and private detention facilities across the state. No doubtsuch a process would be impossible, in practical terms; it's worth noting, however, thateliminating undocumented populations remains the stated goal of many nativistpoliticians nationwide.

And it is clear that many states are equipping themselves with the necessary tools toorchestrate the deportation of a far greater proportion of their undocumentedpopulations than they have ever previously had the ability to reach. High profile statelaws, such as those recently passed by Arizona, Georgia, Alabama, and Indiana, are onlythe most visible examples of local immigration enforcement. If anything, the publicitythat accompanies these statewide efforts undercuts the profit potential of immigrantdetention in the states where they take place, as there is some evidence that the fear theseinitiatives generate amongst unauthorized immigrant communities produces large-scale“voluntary” emigration to locales that they perceive as more welcoming.

The federal government, meanwhile, has provided more subtle means for counties andmunicipalities to increase their detention revenue, in the form of two programs meant to“increase cooperation” between the Immigration and Customs Enforcement Agency(ICE) and local law enforcement: the 287g program, and the Secure Communitiesinitiative. The 287g program is a relic of the last major piece of legislation treatingimmigration issues to pass congress, the Illegal Immigration Reform and ImmigrantResponsibility Act of 1996, and is named for the section of the bill in which it appears.In effect, it allows any local law enforcement agency (such as a city police department ora county sheriff's office) to be “deputized” by the federal Immigration and CustomsEnforcement agency to enforce immigration laws—a task that is normally the exclusiveprovince of the federal government. In practice, it acts like a federally sanctioned, localversion of Arizona SB1070, or its copycat laws: police departments with active 287gagreements can undertake immigration investigations, and make arrests of individualswhom they “reasonably suspect” to be illegal.

Of more recent vintage, and potentially more insidious, is the Secure CommunitiesProgram, rolled out under President Bush in 2008, and expanded exponentially thereafterby the Obama administration. Ostensibly intended to identify “criminal aliens” movingthrough state and local correctional systems and subject them to swift and certaindeportation, its actual effects have been considerably less precise. Its operation isdeceptively simple: anytime an individual is arrested and jailed in a city or county with aSecure Communities agreement, their name and Social Security number is checked forimmigration status against an ICE database. If an individual comes up as unauthorized,they are detained under an immigration “hold” while ICE initiates deportationproceedings—regardless of their eventual charges or conviction.



From the perspective of the immigrant, the process is an all-or-nothing proposition: anyarrest—from a mistaken or wrongful one, to an arrest for a sub-misdemeanor offensesuch as public urination, drinking on the street, or a traffic violation—can lead todetention and deportation, the eventual disposition of the original case notwithstanding.Over a quarter of deportations initiated under Secure Communities since its inceptionhave been of immigrants who fall into this non-criminal category; an additional thirdhave resulted from arrests for low-level misdemeanors. For the arresting agency,however, there is no direct downside to these disturbing statistics—the process itself is astraightforward fiscal win-win. Once an immigrant comes up on the ICE database as animmigration hold, their detention is the responsibility of the federal government, thoughthey may not be moved from the local jail to an official detention center for a number ofdays or weeks. Thus, the federal government pays the arresting agency a daily fee—$120per day (as noted above), on average, anywhere from two to eight times the average dailycost of a prisoner's upkeep, depending on the facility—to continue detaining theimmigrant until they can be transferred or deported. In effect, the Secure Communitiesprogram has transformed the enforcement of public order ordinances from a costlypublic burden, to a potential source of significant federal subsidy.

Secure Communities encapsulates perfectly the danger of the criminal label, its powerand versatility as a tool for social exclusion, a catalyst for targeted exploitation. Insimplest terms, the criminal is an individual who has gone outside the law, who hassomehow failed to adhere to the norms set down by the dominant culture of thecommunity in which he resides. This failure might be active and intentional, as in achoice to ignore such broadly held proscriptions as “thou shalt not steal” or “thou shaltnot kill,” but it can be passive as well. Where the norm is whiteness, those with brown orblack skin cannot help but fail to adhere; the list of such passive crimes is virtuallyendless. The democracies of the West move steadily (if incrementally) to refine theirwritten laws to focus punishment on the active and intentional transgressor, but crimeand the criminal have never been defined by law alone, and are no more so defined todaythan they were fifty years ago—or 150. In contemporary America, crime and criminalityare defined by the media, by culture and ideology, by established practice and policymany steps removed from criminal codes.

It is by no means easy to parse unauthorized immigration from crime and criminalitywithin this framework. Illegal entry into U.S. territory is indeed defined as a crime underfederal law—a first illegal entry is a misdemeanor, and illegal reentry a felony. Neithercrime is prosecuted with any frequency. The primary tool for addressing or “punishing”an immigrant's unauthorized presence in U.S. territory is, of course, deportation—aresponse that does not require the due process applied to criminal prosecution. This ispartly practical, of course—it makes little sense to imprison those convicted of illegalentry at the taxpayers' expense—but it is also strategic: an immigrant's unauthorizedpresence in U.S. territory is obviously strong evidence of illegal entry, but it does not byitself meet the burden of proof required for a successful criminal prosecution.

Steering through such technicalities, it is easy to lose sight of the (ideally) fundamentalrole of harm in defining crime and criminality. Does the unregulated movement ofpeoples over national borders cause harm? And if so, to whom? Perhaps the strongestargument for the harm caused by unauthorized immigrants can be made from theperspective of the native-born laborer. Even assuming that much of the wage depressionthat unauthorized immigrants cause in the markets where they sell their labor is aproduct of the insecurity of their legal status, there is the simple economic reality to beconsidered, that expanding the labor supply (by adding more workers) reduces eachindividual laborer's exchange value.

Still, such disruptions pale in comparison to the negative labor market effects of the freemovement of capital across national borders—which, far from being a federal crime, has



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been, and continues to be, a highly touted foreign policy goal of Republican andDemocratic administrations alike. And what of the argument that unauthorizedimmigrants tend to enter labor markets where native-born workers have shown littleinterest in competing? Attempts in Georgia and Alabama to bring native-bornprobationers and parolees into their agricultural sectors, to replace unauthorizedimmigrants frightened off by the recent passage of draconian anti-immigration laws, havebeen laughable at best.

In the end, unauthorized immigrants will likely return to Georgia and Alabama's farms,once the initial panic subsides, and it becomes clear that the likelihood of prosecution ordeportation under these laws is a manageable risk—one that requires the acceptance ofincreased exploitation and a reduced quality of life, but manageable nonetheless,particularly if the alternative (returning home to unemployment and starvation in aMexico riven by horrific drug violence, for instance) is worse. Those who benefit fromunauthorized immigrant labor in these states are as unlikely to withdraw their support forthese laws as they are to voluntarily pay twice as much for a pint of strawberries or abushel of tomatoes, or to have their lawns mowed or hedges trimmed. Hard labor has along and storied history as the criminal's just punishment—and is reaping the fruits ofthis labor not our rightful reward for administering justice? However media and politics,culture and ideology, law and society interact and evolve in their definition of thecriminal, there is profit to be found at their intersection, and the “free market” excels atsniffing out new opportunities for profit wherever they are to be found.

For now, the knots of men on Astoria's Broadway have little to fear: there are no sweeps,Queens County has no 287g agreement; Governor Cuomo has taken steps to withdrawNew York from participating in the Secure Communities program. The last of them aredispersing as we make our slow way back from our errands. My son clambers up thelibrary steps to stare and smile at two who linger there, chatting quietly. One returns hissmile; the other looks away, clearly uncomfortable. I encourage my son to say hello, buthe's not in a talkative mood today. I take his hand and steer him back onto the path.The thought occurs to me that someday these men's children may be his classmates, hispeers, his friends, his competitors. Then again, I suppose, they might just as likely be hisprisoners, or his servants. One day, I decide, I'm going to ask him which he'd prefer—and what he's willing to give up to make it so. It's his choice.

Dan Stageman is a Doctoral student in criminal justice at John Jay College. He also works as aconsultant to non-profits in the prisoner reentry field. He spends as much time as possible with hiswife and son (Wren and Januario, soon to be three).

[1] Shreeve, J. (2009, August 17). "From Africa to Astoria by Way of Everywhere." National Geographic.

[2] Gabriel, T., & Wyatt, E. (2011, October 15). At Rallies, 2 Candidates Deliver Blistering Attacks onIllegal Immigration. The New York Times, p. A22.

[3] Walters, D. E. (2009, 4 22). Understanding the Real Costs of Illegal Aliens and Government Spending.Retrieved Dec. 18, 2010, from Chronwatch: http://www.chronwatch-america.com/articles/4815/1/Understanding-the-Real-Costs-of-Illegal-Aliens-and-Government-Spending/Page1.html [site now defunct]

[4] Sanchez, A. N. (2010, June 24). Jan Brewer Falsely Claims Undocumented Immigrants Come to the U.S. toBring Drugs, Extort, and Terrorize. Retrieved October 17, 2011, from Think Progress:http://thinkprogress.org/politics/2010/06/24/104445/jan-brewer-crime/

This rhetoric persists despite a surfeit of scientific studies in recent years, from renowned Harvardsociologist Robert Sampson, among many others, showing that crime rates amongst first generationimmigrants—documented or otherwise, and regardless of origin country—are significantly lower thanthose amongst the native born.

http://www.thestraddler.com/20118/piece10.php

http://www.thestraddler.com/20118/piece10-print.php



http://thinkprogress.org/politics/2010/06/24/104445/jan-brewer-crime/



[5] Walters, D. E. (n.d.). About the Author. Retrieved July 24, 2011, from Pool Tables 101: A Vital Buyer'sGuide To Pool Tables: http://www.pooltables101.net/about_the_author.html

[6] Kochar, R. (2008). Latino Labor Report 2008: Construction Reverses Job Growth for Latinos. Washington DC:Pew Hispanic Center.

[7] Macdonald, I. (2010, October 25). Lou Dobbs, American Hypocrite. The Nation.

[8] Castillo, M. (2011, March 2). Texas immigration bill has big exception. Retrieved March 5, 2011, fromCNN.com: http://www.cnn.com/2011/POLITICS/03/01/texas.immigration.bill/index.html

[9] Young, J. (2007). The Vertigo of Late Modernity. Sage.

[10] Lichtenstein, A. (1996). Twice the Work of Free Labor: The Political Economy of Convict Labor in the NewSouth. London and New York: Verso. 21.

Patterson, O. (1982). Slavery and Social Death: A Comparative Study. Cambridge: Harvard University Press.

[11] Mancini, M. J. (1996). One Dies, Get Another: Convict Leasing in the American South, 1866-1928.Columbia: University of South Carolina Press. 2-3.

[12] West, H. C., Sabol, W. J., & Greenman, S. J. (2010). Bureau of Justice Statistics Bulletin: Prisoners in 2009.Washington DC: Bureau of Justice Statistics.

I should stress that these numbers reflect the average daily inmate population of federal and state prisonsalone; when county and municipal jail populations are included, the number is higher by about 200prisoners per 100,000.

[13] Stageman, Alex. Personal communication, April 2011.

[14] Corrections Corporation of America. (2010). 2009 Letter to Shareholders - Partnership Prisons: The Best ofBoth Worlds. Nashville: Corrections Corporation of America.

[15] Gibson, C. & Jung, K. (2006). Historical Census Statistics on the Foreign-Born Population of the United States:1850 to 2000. Washington, DC: U.S. Census Bureau.

[16] Brick, K., et al. (2011). Mexican and Central American Immigrants in the United States. Washington, DC:Migration Policy Institute.

[17] Passel, J. & Cohn, D. (2010). U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade.Washington, DC: Pew Hispanic Center.

[18] In 2009, the average white household held twenty times the accumulated wealth of the average blackhousehold, and 18 times the wealth of the average Hispanic household ($113,149, compared to $6,325and $5,677), much of it invested in publicly traded stocks. See Kochhar, R, et al. (2009). Wealth Gaps Riseto Record Highs Between Whites, Blacks and Hispanics. Washington, DC: Pew Research Center.

[19] Office of Immigration Statistics. (2010). 2009 Yearbook of Immigration Statistics. Washington, DC:Department of Homeland Security.

[20] By major private prison companies, such as the Corrections Corporation of America and the GEOGroup.

[21] Detention Watch Network. (n.d.). About The U.S. Detention and Deportation System. Retrieved April 1,2011, from Detention Watch Network: http://www.detentionwatchnetwork.org/aboutdetention

Schriro, D. (2009). Immigration Detention Overview and Recommendations. Washington DC: Department ofHomeland Security.

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"These Illegals": Immigrants as Criminals and Commodities in the American Free Market

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