"These Illegals": Immigrants as Criminals
and Commodities in the American Free Market
The strangers: crime and labor in contemporary America
On a Thursday morning, I take a walk down Broadway, my two-year-old son perched on my shoulders. Broadway is the main thoroughfare in Astoria, the New York City neighborhood I call home; here, the streets are lined with shops and sidewalk cafes, and every block seems to feature a double-parked car, forcing traffic to a single-lane crawl as it moves toward the highways at either end, leading to Manhattan and the suburban lawns of Long Island. For three blocks or so, we pick our way through one crowd and then the next—knots of three, four, a half-dozen brown-skinned men in work boots and long-sleeved shirts, chatting with each other in Spanish and the myriad Amerindian tongues of Central America, or sitting quietly on stoops. It is past ten AM and there are no pickup trucks in sight. I wonder where these men will go when they finally decide to give up on the work day; I wonder how they will spend the afternoon. Occasional glances in our direction make me think of sons at home, thousands of miles and years away.
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. My landlord here is Croatian, 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 Muslim masjid, the School of Urban Ministry (from which teenagers with Southern accents and matching t-shirts emerge to visit their evangelical fervor on Times Square), and a Jehovah's Witness temple, with signs in four languages announcing times of worship. I do not ask for papers when I make a purchase, strike up a conversation, or sit down with another parent to watch our children play together in the park, but I often wonder about the stories.
The same holds true for the knots of men on Broadway, who may be from a hundred different places, or one. Immigration often works this way, with towns or villages seemingly transplanting themselves wholesale to a few square miles of American soil, following family, following work. These men may be from Mexico, from Michoacán or Zapotecas; they may be from Honduras, El Salvador, Guatemala; they may even be from Ecuador or Bolivia. I do not stop to ask—I imagine their anxiety at the lost work day is discomfort enough for now. I know what my neighbors say, though—the Croatians, the Brazilians, the Italians: "These Mexicans," they say, in the handful of conversations that get 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 to offer, a place where the standards for community membership are as fluid as anywhere on earth, a place where a smile might get you an invitation to dinner, but fifty years of residence can't guarantee you membership in the local social club. In this respect, they are casualties of a national discourse on immigration that has become so attenuated as to change the meaning of the word itself. What is “illegal immigration” in an era when Republican presidential candidates Herman Cain and Michelle Bachman publicly propose lethally electrified border fences, and U.S. military personnel manning the Rio Grande with live ammunition and “shoot to kill” orders? Likely unauthorized to enter the territorial United States, their presence here undocumented, the day laborers of Broadway represent the contemporary archetype of the immigrant, or the “illegal.” The Irish aunt who overstays her tourist visa, the Lithuanian second cousin spending her Summer abroad, babysitting in the daytime and clubbing at night—these are members of a different category, a different class, to whom the labels, along with the arguments for summary execution, no longer apply. The discourse of illegal immigration is a discourse of 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 not seem afraid, nor skittish at the sound of a siren or the passing of a patrol car. In this respect, they are substantially better off than their countrymen clustered in Wal-Mart parking lots from Phoenix to Huntsville to Atlanta, and a thousand cities and small towns in between. In these places, as well as dozens of counties and municipalities across the country, the law has caught up to the discourse: under Arizona's now infamous SB1070, 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 more than just outsiders: they are criminals trespassing on sovereign soil, on asphalt intended exclusively for the bootprints of American citizens and their invited guests. And, in the eyes 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 rooms in our hospitals, police protection, schools, etc., are evidently being supplied for free since most of these illegals do not contribute taxes to these expensive services. In some states, our representatives would offer free higher education to these people as well. In addition, many of these illegals are filling up our jails and prisons, another service given them that could cost around 40 thousand dollars per inmate per year. While our jails and prisons are now at the edge of overflowing and most of the new inmates are illegals, is it any wonder that we are in the trouble we are in today in America?
Douglas E. Walters, writing in a commentary for the now-defunct conservative web magazine Chronwatch.com, encapsulates the link between contemporary nativist discourse on labor migration and the state laws that represent policymakers' most concrete attempts to codify it. In this discourse, the notion of criminality is pervasive: as if in answer to the signs, featured at nativist rallies, that read "What Part of Illegal Do You Not Understand?", Walters lays out the clear conceptual links between unauthorized border crossings and popular notions of criminality. These criminals are crossing our borders 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 specific about 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: no less an authority than Arizona governor Jan Brewer claimed in a recent gubernatorial debate that "the majority [of unauthorized border crossers] are coming here and they're bringing drugs . . . they're extorting people and they're terrorizing the families." Noteworthy only for its absence from Walters' narrative—and the broader nativist world-view it represents—is any idea of the work, the intensive physical labor at low wages, that is the real story of the undocumented immigrant, and the overwhelming rationale 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 that book's website states that he "was CEO of two Billiard Retailers in the Rocky Mountain market from 1985 to 2005." It's difficult to know what Walters' hiring practices were during his days as a retailer of pool tables and associated recreational products, but, generally speaking, certain aspects of his chosen business—delivery, for instance, along with the heavy lifting involved in the installation process—are likely to draw upon unauthorized immigrants for some proportion of their labor pool. Hispanics—and Mexican immigrants in particular—have been well-represented in the "Repair and Maintenance Services" and "Transportation and Warehousing" sectors, where they are more likely to unload trucks than drive forklifts, more often found sweeping floors than repairing refrigeration systems. Though significant, their representation in these fields is admittedly nowhere near the 17 percent they comprise of the American construction labor force, nor the one in four agricultural workers who are undocumented. It's certainly possible that Walters' hiring practices were entirely in line with his expressed beliefs—that his employees, subcontractors, and suppliers were vigorously documented to the extent of the legal means available. Or perhaps Walters enforced an unwritten company policy to exclude anyone with brown skin and the hint of an accent from the payroll.
It's also possible, however, that Walters chose another model for his labor practices, one not unfamiliar to his fellow nativists. Perhaps he followed in the footsteps of former CNN commentator Lou Dobbs, who railed publicly against unauthorized immigrants while employing them on his horse ranch, and Texas State Representative Debbie Riddle, who wrote legislation prescribing steep fines and jail time for the newly criminalized offense of hiring an unauthorized immigrant, with an exception for anyone "hiring a maid, a lawn caretaker or another houseworker . . .'for the purpose of obtaining labor or other work to be performed exclusively or primarily at a single-family residence.'" The point is not that these nativist commentators, politicians, and small businessmen are hypocrites—though that they may well be—but that their nativism is functional: no intentional hypocrisy is required for these individuals to draw direct economic benefit from a culture of exploitation their viewpoints help perpetuate.
For Doug Walters, for Lou Dobbs, for Representative Riddle, undocumented immigrants represent “the other,” a social construct that the esteemed British criminologist Jock Young explains with reference to an ancient and universal cultural symbol:
The simplest notion of what constitutes a demon, a folk devil, an enemy for any particular culture is that it is what they are not. It is the embodiment of all they stand against, a violation of their highest principles, ethics and values—it is, in short, constituted by negativity—it is the black and white of moral photography.
Indeed, it was not so long ago in American history that the other was defined in quite literal black and white terms—and economic considerations have been consistently tied to the rules that determine and maintain in-group and out-group membership.
Slavery and the convict lease: leveraging the: “criminal” label for labor
The 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 unauthorized immigration with antebellum African American slavery, therefore, might look like a conversation stopper, something akin to Godwin's Law (the rule of online rhetoric which states that when a debater compares his opponents to Nazis, he has lost the argument by default). Laborers who can say no to a day's work under conditions they don't find satisfactory, workers who can pack their bags and try their luck selling their strength and skills to another boss in another town—these are not slaves. They have freedom of movement, they have the right of refusal. They are neither chattel, nor property; 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 the institution's purpose: in economic terms, we might consider it as a “free market innovation,” invented to allow folks with capital to turn a set of existing and evolving economic 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 more importantly, it came with a lot of highly developed, tried and trusted legal, social, and cultural packaging that allowed the folks who benefitted from it to enjoy those benefits without 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 an odd sort of intimacy between the server and the served; think of the women who change the sheets on your hotel bed or wash your underwear, or even the fellows who tramp through your foyer and up the stairs to hang new drywall in your guest bedroom. It makes solid cultural sense to require a certain distance from those who serve us: with distance, we don't have to think of them or treat them as guests when they come into our homes, or accord them the rights that guests traditionally receive in the vast majority of cultures worldwide; we needn't concern ourselves with their knowledge of the intimate details of our personal lives, or with the judgments they might pass on those details. We can generate the required distance in any number of ways, from polite disinterest to active hatred, but all of these distancing strategies involve othering—limiting the subject-hood, personhood, or humanity of the servant—and all of them carry the concomitant economic benefit that we need not consider too deeply the humanity of these servants when it comes to the remuneration necessary to provide for their human needs. We certainly needn't look to our own human needs as a rule of thumb—if the servant is less than human, after all, any such basis of comparison would be patently absurd.
In essence, the cultural trappings of slavery—from such traditional quasi-religious notions as the “white man's burden” to pseudo-scientific ideas about black racial inferiority—worked as a sort of psychological armor for the slaveowner, circumscribing empathy for the slave wherever it needed to be cut off. Certainly, any number of slaveowners might have professed to treating their slaves with dignity; they may also have loved their hunting dogs like children, but they owned them nonetheless. Returning to Young's concept of othering, it was difference that made it psychologically palatable for Southern whites to treat their African-descended slaves as dogs; differences in skin tone and features may have been the ultimate basis for categorizing slaves as animals, but differences in language, culture, and customs were important parts of the package too. At least 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 human narratives—that fueled the Northern abolition movement.
The same process elicited fierce resistance from white Southern society, which began to put in place increasingly stringent measures to arrest the humanization of its slave population: legal restrictions were placed on slave access to education (literacy in particular) and the freedom to congregate; slaveowners made a conscious effort to break up families and social networks. These efforts reveal a key defining feature of the kind of radical free market ideology that was prevalent in the antebellum American South, an ideology that closely resembles the economic gospel of the contemporary nativist Tea Party: law, culture, social relations and social norms are all pressed into the service of profit, rather than the other way around.
Ultimately, in the conflict between the Confederacy's need for a fixed and reliable agrarian labor force, and the Union's growing need for a mobile and flexible industrial labor force, industrialization won the day. The conquered South chafed under the imposition of new laws and new social arrangements; and, though Southern whites clawed back their political hegemony from the radical cultural change represented by Reconstruction within a decade or so (depending on the state) of the war's close, the amended 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 force was 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 describes the evolution of this practice from slavery in his history of convict labor in post-bellum Georgia, Twice the Work of Free Labor (1996), with reference to noted sociologist Orlando Patterson: "[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 shift from what Patterson has called "intrusive" slavery to "extrusive" slavery." In “intrusive” slavery, the black African was an intruder in white Southern society, whose supposed racial inferiority justified—or even necessitated—his enslavement. The “extrusive slave” was an "internal exile," rightfully stripped of community membership for violating the community's standards—and rightfully enslaved as his punishment for doing so. The distinction may seem academic, but in the face of the newly passed 14th Amendment to the U.S. Constitution, it was anything but: the text of that document reads, in part, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject 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 state prison populations were (in comparison to the North) generally quite low, and almost exclusively white; after emptying out during the war years (because most prisoners were pressed into service in the Confederate army), the renewed and refurbished systems of the 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 were private property; in a very real sense, they could not be defined as criminals. The social norms of Southern society—and the laws that codified them—did not apply to slaves. If a 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 punish slaves extended to life and death, with no requirement for due process, and minimal legal restrictions 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 new paradigm of black freedom, just as plantation owners and the growing class of Southern industrialists did. Given the close relationship between post-Reconstruction political and economic elites (as often as not, the two were one and the same, with political and economic dynasties being established in tandem within the same families, or even by the same individuals), it should come as no surprise that political and economic interests converged in the response.
Post-Reconstruction legislatures (the self-styled “Redeemers” of the white Southern way of life) first solidified their victories over federal intrusion and black empowerment by passing laws (poll taxes and literacy tests) to suppress the black vote; they then moved on to economic concerns. Black freedom of movement was curtailed with vagrancy laws; black freedom of trade (especially the informal markets known as “deadfalls,” set up to circumvent the trade monopolies of white economic elites) was curbed through laws that effectively mandated white supervision for any purchase or exchange of merchandise.
Unsurprisingly, enforcement of these laws led to the entrance of hundreds of free blacks into 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 white political elite that these new black prisoners not become a burden to already strained state budgets. Southern states had burgeoning prison populations, overwhelmingly composed of black criminals deserving (in the eyes of their captors, at any rate) of the harshest punishment; Southern plantation owners and industrialists had an acute labor shortage, due in no small part to their unwillingness to pay a living wage to a labor force that 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 had spread to every former Confederate state by the 1880s. State (and later county) prisoners were 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 the benefit of the prisoners' collective labor, with minimal restrictions and less oversight. In Florida, turpentine camps predominated; in Mississippi it was plantation owners; in Alabama, for nearly fifty years, two giant coal-mining conglomerates monopolized the entire state prisoner population.
The convict lease was a great boon to both the states and the capital interests who engaged in it. For some states, it was the key to fiscal solvency during a period of low taxes 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' productivity was essentially limited only by what they could physically coerce out of their convict labor force, with minimal outlays for food, shelter, and security. Moreover, lessees had little or no practical reason to consider the long-term health or well-being of their convict laborers: assuming, for instance, that a convict serving a two-year sentence was in fact released after two years, it was in the lessee's interest to get as much productive labor as possible out of the convict in those two years. This dynamic is on stark display in the quote 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 Prison Association's 1883 annual convention, the quote reads: "Before the war, we owned the negroes .... If a man had a good negro, he could afford to keep him .... But these convicts, we don't own 'em. One dies, get another."
From the perspective of the governments and capital interests who benefitted from it, convict leasing was a tremendously successful free market innovation. In many important respects, it represented an improvement on the economic model of slavery, which was effectively a feudal system, better suited to an agrarian economy than an industrial one. Culturally, the criminal label served as an essential companion to institutionalized racism; legally, it served as a stand-in. Black convicts were rightfully denied their freedom for specific offenses against clearly defined statutes, and thus labored to atone for their crimes. If blackness and criminality were to become, in the eyes of the white elite, largely interchangeable, a plausible argument could be made that this was a matter of circumstance rather than ideology. The white elite could continue to accumulate wealth and enjoy service and subservience with a clear conscience.
Contemporary free market innovations in criminal justice
The 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 brought paradigm shifts in labor relations, race relations, and correctional practices alike. Unionism and the Civil Rights Movement are sufficiently well-documented to pass over here; as for corrections, prison populations remained relatively stable for some fifty years, 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: union membership began to drop off, income inequality began to expand, the U.S. began its conversion 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 the racial component of the convict leasing years, and, while prisoner labor largely remained an economic afterthought (as it still does today), a prison construction boom brought jobs to the same white rural communities that were rapidly shedding factories, and increased their political clout by counting non-voting black prisoners as part of their population.
The “law and order” movement took root among white ethnics during a time of genuinely high crime rates, a time when venturing into the commercial areas of major cities might well have carried undue risk of victimization, violent or otherwise. Its usefulness as a cultural, political, and economic force, however, continued long after this was the case: as rates of the most common violent crimes dropped precipitously from their peak in the early 1990s, the disproportionate imprisonment of young African American men continued to surge. The experience of imprisonment has become a common theme of urban black youth culture, bringing prison tropes into the street and into the media: the origin of the “saggy pants” phenomenon, for instance—so often a target 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 youth culture, to the media, to policy makers and law enforcement officials, and back again—the reinforcement of a “criminal” stereotype, firmly rooted in race but ostensibly separable from it. In part, it was this rarely questioned stereotype that allowed incarceration rates to continue skyrocketing, with little public scrutiny, criticism, or organized resistance, despite crime rates that were trending just as steeply in the opposite direction. Michelle Alexander has written eloquently about this subject in The New Jim Crow; gadfly sociologist Loïc Wacquant has spent much of his career charting the rise of incarceration against the simultaneous dismantling of the welfare state. My own take is that this modern deployment of the criminal label served a purpose very much akin to its use in post-Civil War convict leasing—albeit adapted for the new rules of the post-Civil Rights context of globalization and rapid economic change.
At first glance, the economic benefits of mass incarceration don't appear to hold up. In dollar for dollar terms, it is considerably more cost-effective to support people on general 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 were loath to accept: not only were many urban welfare recipients themselves black, but the urban bureaucracies that managed the system had, in part through affirmative action and residence requirements, become dominated in many cities by the black middle class. Imprisonment, on the other hand, meant short-term construction and long-term service employment for the small-town and rural white ethnics who were beginning to feel the pinch of the manufacturing decline. In a time of general economic prosperity (through the technology bubble of the '90s and the real estate boom of the 2000s), burgeoning prison budgets—and the taxes that supported them—were an afterthought, for politicians and voters alike.
New economies, new criminals
In 2008, the “Great Recession” arrived to change this equation. Crashing property values and rising unemployment resulted in cratering state and local tax revenues, and almost overnight, the raw numbers—in business-speak, the “ROI” (return on investment)—of mass incarceration began to draw the kind of scrutiny from voters and policy-makers that years of alarm-sounding by academics and advocates had failed to produce. The correctional tax dollars that had until this point been sanctioned as a sort of de facto subsidy for rural white America (at the obvious expense of urban black America) were simply no longer there, and state politicians scrambled to play catch-up on years of research into innovative sentencing and alternatives to incarceration—lest they, like California, be forced by economic circumstances to release thousands of prisoners at once, 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 first recorded 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 a further drop to 502 in 2009; fewer prisoners were sentenced, sentence lengths were shortened, previously determined sentences were revised (as in New York, with the repeal of the infamous Rockefeller drug laws), and the “law and order” backlash, when it arrived (as it did in a 2010 effort, driven by county prosecutors, against an innovative community 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 officer duty rosters were drastically reduced (resulting, in some prisons, in prisoner-to-staff ratios in the area of 100-to-1 on certain shifts), and remaining guards were moved from standard eight-hour shifts to grueling twelve-hour rotations, with minimal protest from the Corrections Officers’ newly toothless unions.
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 their unions. For the private interests and municipalities which had invested significant capital in 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 occupancy rates 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. Municipalities that staked their economic future on speculative prison construction—from Berlin, New Hampshire, to Grayson County, Virginia, to Littlefield, Texas—found themselves on the hook for mortgages and interest payments on empty prisons, a devastating total loss on investments that were to be their economic salvation.
These interests found a possible salvation in the intensifying nativist backlash against unauthorized immigration, a dynamic that paralleled and drew its justification from the same economic anxiety responsible for the falling incarceration rates that threatened their established business model. While unauthorized immigration across America's southern land border is as old as the deep disparities in income and quality of life that drive it, the raw number of laborers surged throughout the late 1990s and the early 2000s as a direct consequence of the North American Free Trade Agreement (NAFTA), and its companion, the Central American Free Trade Agreement (CAFTA). The primary reason for this surge was as simple as it was preventable: no longer protected by the tariffs and subsidies that became illegal under NAFTA and CAFTA, Mexican and Central American corn—produced largely by small farmers using antiquated agricultural equipment and practices—could no longer compete with U.S. produced corn in their home markets. Technological advancements and economies of scale meant that American farmers could produce corn more cheaply, and sell it more cheaply than its Mexican and Central American equivalents, while still making a profit. As a result, Mexico's rural economy effectively collapsed, and thousands of small farmers found themselves reduced to subsistence agriculture, unable to pay mortgages and taxes, while thousands of associated tradesmen found themselves unemployed. The already established logic of risking the trip north for exponentially higher incomes and an improved quality of life became, over the course of a few short years of “free trade,” an imperative for many Mexicans: go north 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 11 million; by 2009, the number had increased to 14 million.
These later numbers, however, hide a precipitous dropoff in risky border crossings—one that, perhaps unsurprisingly, coincides with the onset of the aforementioned “Great Recession”: between 2000 and 2007, an average of some 750,000 individuals crossed U.S. borders illegally; by 2009, that average had been cut in half and more, with only 300,000 thousand making the trek. At the same time, the temperature of American public discourse and political rhetoric on the subject went sharply in the opposite direction, fueled in large part by economic anxiety—and the racial animus in which it all too 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—or unimaginable. In a laissez-faire, free market system, government makes policy based on the 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 private sector economy), then leaves it to private interests (as well as the municipal and county government entities that pattern their decision-making increasingly after the corporate 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 balance amongst a host of economic and social factors. It required that a vague suspicion or generalized cultural distaste dominate popular discourse about unauthorized immigration, but it also required that most Americans thought little enough about issues of labor (or themselves as laborers) to take no more than a passing interest in this discourse. It required sufficient enforcement (in the form of sweeps, detentions, and deportations) to hold down wages, suppress labor agitation, and keep the undocumented population wary, quiet, and largely out of sight, but not so much as to push unauthorized laborers out of whole areas and industries, not to leave crops un-harvested or other necessary work undone. Perhaps most of all, it required a widely held sense of economic prosperity, of the sort that led even Americans in the lower half of the class structure to aspire to—and actually purchase—the kinds of middle-class goods and services that unauthorized immigrants produced and provided at significant discounts: lawn maintenance services, remodeling and new home construction, restaurant food, fresh produce, and so on.
With the recession, this model collapsed. And—just as the innovation of the convict lease arrived in answer to the destruction of slavery, 150 years before—the exploitation of unauthorized immigrants is proving remarkably persistent in the face of dramatic change. And it is nativism, not the economic conditions that drive it, that makes this exploitation possible. As the aspirations for middle-class goods and services contracts with economic uncertainty, and the purchasing power so long provided by easy credit puts these goods and services realistically out of reach for a growing segment of Americans, 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 is not 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 has continued to increase: from 188,000 at the opening of the decade, to nearly 400,000 in its final year.
Why go through the trouble to locate, detain, process, and deport individuals who might logically be expected, in the absence of jobs, to leave of their own accord? Why not simply let the push of unemployment and the pull of family, culture, and land take its natural course? The answer is, of course, profit. The innovation of immigrant detention is an ingenious one, an innovation that allows profit without labor, that essentially dispenses with exploitation in favor of a sort of extraction—an innovation that treats unauthorized immigrants as something more akin to a natural resource rather than productive workers. The dynamics of this process are relatively simple: while detention facilities are largely a mix of privately owned and operated facilities and repurposed local jails still owned and operated by the counties that built them, it is the federal government that picks up the tab—to the tune of $120 per detainee, per day. By contrast, CCA takes in around $40 dollars per day for housing more traditional state and federal prisoners—the kind who have been found guilty by a criminal court, and processed by the criminal justice system.
Viewed as a natural resource within the framework of the detention model, the profit potential for unauthorized immigrants is staggering: in Texas alone, there are 1.65 million resident unauthorized immigrants. To detain and deport them all, at $120 per day for a thirty-day average stay in detention (which is the actual average stay before immigrants are processed for deportation and forcibly removed), would bring revenues of nearly $6 billion to contracted county jails and private detention facilities across the state. No doubt such a process would be impossible, in practical terms; it's worth noting, however, that eliminating undocumented populations remains the stated goal of many nativist politicians nationwide.
And it is clear that many states are equipping themselves with the necessary tools to orchestrate the deportation of a far greater proportion of their undocumented populations than they have ever previously had the ability to reach. High profile state laws, such as those recently passed by Arizona, Georgia, Alabama, and Indiana, are only the most visible examples of local immigration enforcement. If anything, the publicity that accompanies these statewide efforts undercuts the profit potential of immigrant detention in the states where they take place, as there is some evidence that the fear these initiatives 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 and municipalities 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 Communities initiative. The 287g program is a relic of the last major piece of legislation treating immigration issues to pass congress, the Illegal Immigration Reform and Immigrant Responsibility 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 or a county sheriff's office) to be “deputized” by the federal Immigration and Customs Enforcement agency to enforce immigration laws—a task that is normally the exclusive province of the federal government. In practice, it acts like a federally sanctioned, local version of Arizona SB1070, or its copycat laws: police departments with active 287g agreements can undertake immigration investigations, and make arrests of individuals whom they “reasonably suspect” to be illegal.
Of more recent vintage, and potentially more insidious, is the Secure Communities Program, rolled out under President Bush in 2008, and expanded exponentially thereafter by the Obama administration. Ostensibly intended to identify “criminal aliens” moving through state and local correctional systems and subject them to swift and certain deportation, its actual effects have been considerably less precise. Its operation is deceptively simple: anytime an individual is arrested and jailed in a city or county with a Secure Communities agreement, their name and Social Security number is checked for immigration status against an ICE database. If an individual comes up as unauthorized, they are detained under an immigration “hold” while ICE initiates deportation proceedings—regardless of their eventual charges or conviction.
From the perspective of the immigrant, the process is an all-or-nothing proposition: any arrest—from a mistaken or wrongful one, to an arrest for a sub-misdemeanor offense such as public urination, drinking on the street, or a traffic violation—can lead to detention and deportation, the eventual disposition of the original case notwithstanding. Over a quarter of deportations initiated under Secure Communities since its inception have been of immigrants who fall into this non-criminal category; an additional third have 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 a straightforward fiscal win-win. Once an immigrant comes up on the ICE database as an immigration hold, their detention is the responsibility of the federal government, though they may not be moved from the local jail to an official detention center for a number of days or weeks. Thus, the federal government pays the arresting agency a daily fee—$120 per day (as noted above), on average, anywhere from two to eight times the average daily cost of a prisoner's upkeep, depending on the facility—to continue detaining the immigrant until they can be transferred or deported. In effect, the Secure Communities program has transformed the enforcement of public order ordinances from a costly public burden, to a potential source of significant federal subsidy.
Secure Communities encapsulates perfectly the danger of the criminal label, its power and versatility as a tool for social exclusion, a catalyst for targeted exploitation. In simplest terms, the criminal is an individual who has gone outside the law, who has somehow failed to adhere to the norms set down by the dominant culture of the community in which he resides. This failure might be active and intentional, as in a choice to ignore such broadly held proscriptions as “thou shalt not steal” or “thou shalt not kill,” but it can be passive as well. Where the norm is whiteness, those with brown or black skin cannot help but fail to adhere; the list of such passive crimes is virtually endless. The democracies of the West move steadily (if incrementally) to refine their written laws to focus punishment on the active and intentional transgressor, but crime and the criminal have never been defined by law alone, and are no more so defined today than they were fifty years ago—or 150. In contemporary America, crime and criminality are defined by the media, by culture and ideology, by established practice and policy many steps removed from criminal codes.
It is by no means easy to parse unauthorized immigration from crime and criminality within this framework. Illegal entry into U.S. territory is indeed defined as a crime under federal law—a first illegal entry is a misdemeanor, and illegal reentry a felony. Neither crime 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—a response that does not require the due process applied to criminal prosecution. This is partly practical, of course—it makes little sense to imprison those convicted of illegal entry at the taxpayers' expense—but it is also strategic: an immigrant's unauthorized presence in U.S. territory is obviously strong evidence of illegal entry, but it does not by itself meet the burden of proof required for a successful criminal prosecution.
Steering through such technicalities, it is easy to lose sight of the (ideally) fundamental role of harm in defining crime and criminality. Does the unregulated movement of peoples over national borders cause harm? And if so, to whom? Perhaps the strongest argument for the harm caused by unauthorized immigrants can be made from the perspective of the native-born laborer. Even assuming that much of the wage depression that unauthorized immigrants cause in the markets where they sell their labor is a product of the insecurity of their legal status, there is the simple economic reality to be considered, that expanding the labor supply (by adding more workers) reduces each individual laborer's exchange value.
Still, such disruptions pale in comparison to the negative labor market effects of the free movement of capital across national borders—which, far from being a federal crime, has been, and continues to be, a highly touted foreign policy goal of Republican and Democratic administrations alike. And what of the argument that unauthorized immigrants tend to enter labor markets where native-born workers have shown little interest in competing? Attempts in Georgia and Alabama to bring native-born probationers and parolees into their agricultural sectors, to replace unauthorized immigrants frightened off by the recent passage of draconian anti-immigration laws, have been 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 or deportation under these laws is a manageable risk—one that requires the acceptance of increased exploitation and a reduced quality of life, but manageable nonetheless, particularly if the alternative (returning home to unemployment and starvation in a Mexico riven by horrific drug violence, for instance) is worse. Those who benefit from unauthorized immigrant labor in these states are as unlikely to withdraw their support for these laws as they are to voluntarily pay twice as much for a pint of strawberries or a bushel of tomatoes, or to have their lawns mowed or hedges trimmed. Hard labor has a long and storied history as the criminal's just punishment—and is reaping the fruits of this 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 the criminal, there is profit to be found at their intersection, and the “free market” excels at sniffing 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 withdraw New York from participating in the Secure Communities program. The last of them are dispersing as we make our slow way back from our errands. My son clambers up the library steps to stare and smile at two who linger there, chatting quietly. One returns his smile; the other looks away, clearly uncomfortable. I encourage my son to say hello, but he'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, his peers, his friends, his competitors. Then again, I suppose, they might just as likely be his prisoners, 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 a consultant to non-profits in the prisoner reentry field. He spends as much time as possible with his wife and son (Wren and Januario, soon to be three).
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 Gabriel, T., & Wyatt, E. (2011, October 15). At Rallies, 2 Candidates Deliver Blistering Attacks on Illegal Immigration. The New York Times, p. A22.
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This rhetoric persists despite a surfeit of scientific studies in recent years, from renowned Harvard sociologist Robert Sampson, among many others, showing that crime rates amongst first generation immigrants—documented or otherwise, and regardless of origin country—are significantly lower than those amongst the native born.
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I should stress that these numbers reflect the average daily inmate population of federal and state prisons alone; when county and municipal jail populations are included, the number is higher by about 200 prisoners per 100,000.
 Stageman, Alex. Personal communication, April 2011.
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 In 2009, the average white household held twenty times the accumulated wealth of the average black household, and 18 times the wealth of the average Hispanic household ($113,149, compared to $6,325 and $5,677), much of it invested in publicly traded stocks. See Kochhar, R, et al. (2009). Wealth Gaps Rise to Record Highs Between Whites, Blacks and Hispanics. Washington, DC: Pew Research Center.
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 By major private prison companies, such as the Corrections Corporation of America and the GEO Group.
 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 of Homeland Security.