Immigration, Race, and Law: It Matters if Crime Metaphors Prevail

The gathering storm around immigration that has been building in 2007 looks likely to make landfall in early 2008 as the two party nominees are identified and the huge gulf between the base of each party on this issue swings into marked contrast. If the two parties operate in what Paul Krugman called "separate moral and intellectual universes" in his New Year's Eve column, they also do so for the most part on immigration. John McCain is practically the only Republican who would promise a path to legalization for at least a significant portion of the millions of undocumented immigrants who can document a sustained history of work here (along with assorted other conditions). While Hillary showed some timidity in backing down from Eliot Spitzer's bold stand on driver's licenses (as did the Governor), all the Democrats would create a path to legalization (and presumably citzenship) for an even more substantial portion of the undocumented.

With such a big difference, the proper way government should respond to the presence in the borders of the United States of millions of foreign nationals with no documented lawful basis for remaining here but with a history of sustained residence and work here could easily become the "crime" issue of the 2008 election.

Crime itself seems decidedly unlikely to surface as a dominant (notwithstanding Huckabee's inclusion of "no executions" in the list of Mitt Romney's gubernatorial failures in the negative ad he didn't run but had a news conference to show and announced he would not run, see AP story which doesn't quote execution line unfortunately). Twenty years after George H W Bush was thought to have fatally wounded the campaign of Michael Dukakis by raising the death penalty and the governance of murderers, Huckabee is the odd candidate out who has exposure on it (and it doesn't yet appear to have been fatal). But many of the very same emotions, metaphors, and mentalities of governing will be deployed in an election on the legal status of immigrants.

As in many culture wars, the two sides are as often voices in the same people as much as between people. One voices articulates the view that in the absence of legal authorization, immigration is a crime, the moral corruptness of which defiles all that follows. "They broke our laws when they came here and they may commit further crimes against us when they find it opportunistic to do so."

For others, these are upstanding citizens of states near and far who have been beckoned to risk much for the chance to labor in our factories, kitchens, and fields, whose stake in this country (including ties of family as well as employment) is entitled to significant weight in a dignified and fair process.

Like 1988, a 2008 election on the legal status of immigrants would have for many an undeniably racial cast. The image of urban crime in America has had a Latino as well as African-American face since at least the 1980s (Miami Vice) if not earlier. The persistent and unfounded fear that those who enter without documented permission to work will likely commit crimes (or acts of terrorism) emanates in part from that belief. This has been exacerbated by the reluctance (now understandable politically) of state and local government to civilly govern the social practices that have grown up around immigrant labor, including informal day labor markets that often mimic in appearance the loitering groups of youth on urban streets that both television and official criminology (Broken Windows) has helped link to crime in the public mind.

The danger of another racialized election like 1988 is clear. A word about the promise in this brewing culture war. The talk of law on both sides (criminal law on the side of those who demand punitive action) and human rights law on the side of those who would begin by granting immigrant workers their dignity and good motives, points to a common anxiety and hope for the place of law in our society. For reasons that readers of the blog will not need reminding our continuing emphasis on criminal law as a model for governing society is a proven remedy for increasing fractionalization and mistrust in America. Can human rights law speak to that desire for more law on the part of the entire public?