Handcuffs and Chain Link

Criminalizing the Undocumented in America

Benjamin Gonzalez O'Brien

• Publisher: University of Virginia Press
• Year: 2018
• eBook ISBN: 9780813941332
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

Handcuffs and Chain Link enters the immigration debate by addressing one of its most controversial aspects: the criminalization both of extralegal immigration to the United States and of immigrants themselves in popular and political discourse. Looking at the factors that led up to criminalization, Benjamin Gonzalez O'Brien points to the alternative approach of the Immigration Reform and Control Act of 1986 and how its ultimate demise served to negatively reinforce the fictitious association of extralegal immigrants with criminality.

Crucial to Gonzalez O'Brien's account thus is the concept of the critical policy failure—a piece of legislation that attempts a radically different approach to a major issue but has shortcomings that ultimately further entrench the approach it was designed to supplant. The IRCA was just such a piece of legislation. It highlighted the contributions of the undocumented and offered amnesty to some while attempting to stem the flow of extralegal immigration by holding employers accountable for hiring the undocumented. The failure of this effort at decriminalization prompted a return to criminalization with a vengeance, leading to the stalemate on immigration policy that persists to this day.

ONE

From Open Borders to Locked Doors

In 1929, riding on the success of immigration restriction in 1924 through the Johnson-Reed Act and increasing hostility toward Mexican immigrants, Congress passed Senate bill 5094, also known as the Undesirable Aliens Act, which attached penalties to undocumented immigration and criminalized reentry after deportation, making it a felony.

In this chapter, I argue that legislation in the 1920s, culminating in the passage of S. 5094 in 1929, set the convergence of immigration and criminal law in motion by explicitly linking undocumented immigration and crime legally. Before this time such linkages had existed in the rhetoric on immigration, which lacked the weight of law, but S. 5094 formalized the linkages between immigration violations and crime, making increasing criminalization more likely (Pierson 2000, 2004; Sewell Jr. 2005; Thelan 1999). Until IRCA was passed in 1986, the Undesirable Aliens Act was one of the few pieces of congressional legislation that specifically addressed undocumented immigration, the only real exception being the “Wetback Bill” of 1952, also known as the Immigration Act of March 20th, 1952, which made it a felony to smuggle in undocumented immigrants or conceal them. This did, somewhat conspicuously, omit employment as a form of concealment.

In the following pages, I detail the evolution of US policy on undocumented immigration from the Johnson-Reed Act of 1924, the first major piece of immigration legislation in the twentieth century, to the passage of S. 5094, which attached criminal penalties to undocumented immigration for the first time. I argue that criminalization likely increased because of the increasing problematization of Mexican immigration in the 1920s and the passage of S. 5094, as successive Congresses came into session in a climate in which the major tools used to address undocumented immigration were those frequently associated with crime control, resulting in a rhetoric that painted Mexican immigrants as “illegals.” This tendency to treat undocumented immigration as a criminal act was linked to a longstanding tradition in American politics of viewing the foreign born as generally predisposed to criminality (Higham 1994; Zolberg 2006).

Criminality as Racial Project

Before beginning a discussion of immigrant criminality, it is important to acknowledge that this is part of the larger American racial project. Rogers Smith argues that one of the traditions that shaped our nation was an ascriptivist one based on the belief that “true Americans are in some way ‘chosen’ by God, history, or nature to possess superior moral and intellectual traits, often associated with race of gender” (Smith 1993, 563). Ascribing to nonwhites negative traits like criminality or immorality made it possible to exclude them from the state, either through denial of citizenship or through slavery and Jim Crow. Citizenship would be limited to whites until 1866, when it was extended to blacks as well, but nonwhite immigrants would not be able to naturalize until passage of the McCarran-Walter Act in 1952. Control over America’s cultural identity had long been linked to immigration, with a high premium placed on maintaining racial purity (Zolberg 2006). Even the Irish were characterized as being of a lower racial stock and a threat to racial purity, which was one of the motivations for limiting their immigration through the Johnson-Reed Act.

Criminality was not a stereotype limited to the undocumented; it had been assigned to various racial and ethnic groups earlier in American history to justify denying them rights enjoyed by “true” Americans. Painting nonwhites as criminals justified their social control and segregation, as well as acts of preemptive violence in the name of safety for whites. Criminality is still used today to justify the social control of blacks in the United States, as Michelle Alexander documents in The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Alexander argues that modern crime control and the war on drugs are ways of maintaining racial caste systems established under slavery and, later, Jim Crow. She acknowledges that her book deals specifically with the treatment of blacks in the US criminal-justice system and that “little is said here about the unique experience of women, Latinos, and immigrants” (Alexander 2010, 16). Notions of black criminality, today used to justify mass incarceration and the excesses of the drug war, have their roots in the earliest years of the nation’s history, in the belief in white superiority and personhood that led to the creation of America’s racial caste system. Similarly, institutional claims of criminality attributed to undocumented immigrants have shaped the modern experience and treatment of Latinos, immigrant or otherwise. As Ngai (2004) details in Impossible Subjects: Illegal Aliens and the Making of Modern America, the construction of the “illegal immigrant” was used as a way of controlling nonwhite immigrant populations; in the case of Mexicans this meant retaining access to their physical bodies for the purposes of labor but treating them as criminals when this labor was no longer needed. Regarding the undocumented as criminals justifies their exclusion from the nation and their treatment as a group who must be controlled. These negative associations are nothing new, nor are they unique to undocumented immigrants, but the undocumented and blacks are alone in seeing these associations of criminality endure, both in rhetoric and policy, to this day.

Immigrant Criminality in Historical Context

The foreign born had long been suspected as being more inclined to crime. Some of these suspicions may have stemmed from the use of transportation from Great Britain as a means of punishment for crimes committed, particularly religious or ideological crimes, such as those related to anarchist or communist activities, but they were also undeniably linked to ethnicity and race (Kanstroom 2007; Zolberg 2006). By the twentieth century, this belief was relatively engrained in public opinion, with the Irish and Italians specifically painted as potential criminals (Higham 1994). There was enough concern about immigration, including the potential criminality of the foreign born, that a joint House and Senate commission was formed to examine whether immigration posed a threat to the United States. The commission, officially the United States Commission on Immigration, was nicknamed the Dillingham Commission, after William Paul Dillingham, the Vermont senator tasked with leading it. The commission would eventually produce forty-two volumes examining different aspects of the immigration question, making it the first comprehensive examination of immigration in US history (Tichenor 2002). The thirty-sixth volume specifically examined the question of immigrant criminality, and it is worth analyzing some of its findings, as these would play a role in shaping immigration policy in the United States broadly and the Johnson-Reed Act of 1924 in particular.

The Dillingham Commission did not have the data necessary to examine differences in crime rates because of immigration or even differences in crime rates nationally between immigrants and the native born. Instead it concerned itself with how the character of crimes committed had changed because of immigration, drawing on data from five different sources, data which largely covered urban areas and a limited number of geographic regions. The report drew on documents from the New York City magistrates’ courts, the New York Court of General Sessions, the New York County and Supreme Court, the Chicago Police Department, and Massachusetts prisons. In its analysis of changes in the character of crime, it divided offenses into five different categories: gainful offenses, or crimes against property; offenses of personal violence; offenses against public policy, such as public drunkenness; offenses against chastity, such as prostitution; and unclassified offenses (US Commission on Immigration 1911). The figures reported by the commission were only for arrests, which is one reason why the report did not specifically address whether immigrants were responsible for more crime than the native born. (A later report on immigrant criminality by the National Commission on Law Observance and Enforcement, also known as the Wickersham Commission, in 1931 would discuss some of the problems with using arrest rates alone as an indicator of increased criminality, as immigrants might simply be more likely to be arrested.) In addition, the geographic limitations of the Dillingham Commission report also led to some questions of the generalizability of its findings, because only statistics from New York, Massachusetts, and Illinois were available, with no data from the South or the West Coast.

The findings of the Dillingham Commission did seem to support existing beliefs in immigrant criminality, particularly as they related to national groups such as Italians. In general terms, the commission did find some differences between the native born and immigrants in terms of the numbers arrested for the five categories of crime the report examined. Gainful offenses were far more common for those born in the United States than for immigrants (US Immigration Commission 1911, 38). They accounted for one-tenth of all crimes by the native born but only one-sixteenth of those by the foreign born. Interestingly and somewhat unsurprisingly, the crimes committed by second-generation descendants of immigrants resembled those committed by the native born more than they did those committed by immigrants, with a greater number of gainful offenses and a smaller number of crimes of personal violence. Even in regard to the much-vilified Italians, the report states, “Striking illustration of this is afforded by the Italian second-generation group, in which the relative frequency of the various classes of crime is quite unlike that of the Italian immigrant group” (US Immigration Commission, 1911, 70). This suggests that the criminality in question was reduced via assimilation in as little as one generation, making second-generation national groups virtually indistinguishable from the native born.

As with gainful offenses, there were differences between the native born and immigrants when it came to crimes of personal violence, with a higher number of immigrant offenders. The number of crimes against public policy was higher among immigrant groups, while there was no clear relationship between nativity and crimes of chastity. It is worth considering whether these relationships hold even when the crimes composing each category in the commission report are disaggregated. The personal-violence category is helpfully broken down into five subcategories: kidnapping or abduction, simple assault, violent assault, homicide, and rape. Of those arrested, on average a higher percentage of immigrants than of native born were arrested for simple and violent assault and homicide. There was some variation, though, with New York City magistrates’ courts showing identical or near identical numbers for both types of assault and homicide, though the report stressed that these findings only held in the case of data from the magistrates’ courts (US Immigration Commission 1911, 42). But the variation between the statistics from the New York City magistrates’ courts and the other statistics in the study should be a red flag. There may have been variation in crime rates based on geographic location, and the study is quite limited in this respect, since it only utilizes data from New York, Chicago, and Massachusetts.

The report also examined crime by ethnicity and race, and its findings were particularly scathing when it came to Italians. “The increase in offenses of personal violence in this country is largely traceable to immigration from Southern Europe, and especially from Italy. This is most marked in relation to the crime of homicide” (US Immigration Commission 1911, 2). Southern Europeans were one of the groups targeted by the Johnson-Reed Act in 1924, and the Dillingham Commission findings provided some of the justification for the deliberate limiting of Italian immigrants through the imposition of national quotas. The Irish, whom restrictionists also wanted to limit through national quotas, were also found to commit offenses against public policy more often than other national groups However, the report notes that the increase in these crimes could also have resulted from the growth of cities and the increase in forbidden acts because of this growth more than from immigration itself.

The Dillingham Commission report seemed to verify the longstanding beliefs in immigrant criminality that would later be used as a justification for national quotas under the Johnson-Reed. Oddly, it was unconcerned with Mexican immigrants even though among the “racial” groups examined, Mexican nationals came in sixth in the total number of prisoners in the United States as of 1908 and were second to Italians in the total number of individuals detained for murder and attempted murder in both 1904 and 1908 (US Immigration Commission 1911). Why, then, did the report dedicate so little time to discussing the dangers of Mexican immigration, while focusing so much on the crime rates among European nationals? This was likely owing to the fact that the commission was motivated by a desire to reduce immigration from “undesirable” European countries, while Mexican immigration remained a secondary concern. This would of course not be the case after passage of the Johnson-Reed Act, but the US attitude toward Mexican immigration during this period can best be described as “complicated.”

The Dillingham Commission report provided the justification for national quotas that would be established under the Johnson-Reed Act by painting southern and eastern European immigrants as a criminal threat to the nation. This criminality was not linked to the external circumstances faced by the Irish, the Italians, and other vilified European immigrant groups, but instead to something inherent to their ethnicity. Reducing the immigration of these national groups was a means of controlling them, of limiting the threat they posed to the nation because of their propensity for crime. Of course, ethnicity in no way predisposes someone to criminality, but constructing them as in some way of lower moral stock preserved the racial and ethnic hierarchies of the United States. It gave those who had come in earlier immigrant waves and were native born a special status and superiority, while conferring a lower status on those immigrants who were less white because of their ethnicity. This criminality ascribed to earlier waves of immigrants would inextricably become linked to the illegality of Mexican immigrants in the period following Johnson-Reed. Criminality and illegality were deliberate political constructions to justify the control of populations believed to be different or racially inferior. Unlike past immigrant groups, undocumented immigrants would be stereotyped as criminals, and they would be treated as no immigrant group before them had been treated.

Mexican Immigration, Criminality, and the Evolution of Immigration Policy, 1848–1929

The Dillingham Commission may have ignored Mexican immigration in its discussions for two reasons. On the one hand, nativism in the first quarter of the twentieth century was largely directed at European immigrants, who were seen as being of a lesser form of whiteness (Higham 1994; M. F. Jacobson 1998). On the other hand, Mexican immigration was both necessary and valuable for the development of the Southwest. Despite Mexicans being the “iconic illegal aliens,” Mexican immigration to the United States had a long history and would not even be regulated until the 1920s, with very little attention paid to the “Mexican problem” until undesirable European immigration was significantly reduced through national quotas (Ngai 2004).

After the Mexican-American War (1846–48), Mexico ceded what is now the Southwest to the United States, and former Mexican nationals who did not want to relocate to Mexican territory were allowed to naturalize as US citizens (Ngai 2004). Even though whiteness was prerequisite for naturalization, Latinos could gain citizenship following the Mexican-American War because they were technically Caucasian. No restrictions were placed on Mexican immigration, and Mexican labor played a large role in the development of the Southwest (Hernandez 2010; Tichenor 2002). By the 1920s the Southwest had become one of the nation’s most valuable agricultural regions, with approximately 31 million acres of crops, requiring a large work force (Hernandez 2010, 23). At the same time, the access of southwestern agribusiness to other sources of labor during the late nineteenth and early twentieth centuries was cut off. Chinese, Japanese, and other labor from Asia was restricted through the Chinese Exclusion Act (1882), the Gentleman’s Agreement between the United States and Japan (1907), and the Asiatic Barred Zone (1917), respectively. This meant that by the 1920s Mexicans accounted for much of the work force in the Southwest (Hernandez 2010; Ngai 2004). Mexican laborers regularly crossed back and forth between the two countries to work while restrictionists, focusing their energies on European immigration, for the most part ignored them.

There was little change in the first decade of the twentieth century. Mexican laborers continued to move freely across the border, while attempts to restrict European immigration largely failed to find support in Congress between 1900 and 1910. Mexican immigration during this time received little, if any, attention from federal lawmakers. The unrestricted crossing of Mexican immigrants was not seen as a criminal act even if after passage of the Immigration Act of 1917 it was technically an administrative violation to cross into the United States anywhere other than at a designated border crossing (Ngai 2004). Even immigration inspectors ignored Mexican laborers entering the United States to work, and the Immigration Bureau did not even consider Mexican immigration to be within its purview, instead seeing it as regulated by labor demands in border states (Ngai 2004, 64). Mexicans were regarded as a valuable source of labor not only because of their proximity but also because they were seen as less threatening than other foreign workers (Kanstroom 2007, 156). An article from the New York Times in 1920 nicely sums up the view of Mexican immigrants during the period, quoting Vernon Mc-Combs, a superintendent of the United-Methodist Latin America Missions in southern California as stating, “They hold fine possibilities of citizenship, being sturdy, independent and filled with racial pride. To the best of my belief, there isn’t a Mexican tramp in the United States. But despite their good qualities, they are, we must remember, illiterate and grossly misinformed about the United States” (Breitigam 1920). Perceptions of Mexican immigrants reflected a good deal of racial paternalism, but there were few perceptions of threat, at least while Mexican labor remained a necessity and Mexican laborers were found more appealing than laborers from southern or eastern European countries, who were seen not only as being of inferior stock but also as potential political agitators and troublemakers (Tichenor 2002).

In 1917 the first significant immigration act of the twentieth century was passed, requiring all immigrants to pay a head tax and to submit to a literacy test. Both requirements were targeted at immigrants from southern and eastern Europe (M. F. Jacobson 1998). Initially, Mexican immigrants also were subject to both the head tax and the literacy test, but during World War I they were exempted from both to fac...

Table of contents

• Cover Page
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• Introduction: Considering Criminality
• 1. From Open Borders to Locked Doors
• 2. From the Path Less Traveled to the Path Best Known
• 3. Immigrant Criminality and Public Opinion
• 4. Policy Preferences and the Undocumented Threat
• Conclusion: Criminalization and Reform
• Appendix
• Bibliography
• Index