Elliott Young: Felons and Families

UNC Press Authors Off the Page - Expert Commentary on the Issues of the Day - Roundtable 1: #immigration

Today’s roundtable essay on #immigration comes from Elliott Young, professor of history and director of ethnic studies at Lewis & Clark College in Portland, Oregon. His latest book is Alien Nation: Chinese Migration through the Americas from the Coolie Era to WWII (University of North Carolina Press, 2014).

Felons and Families

In November 2014, in the same speech in which President Obama announced his Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, he proclaimed: “We’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids. We’ll prioritize, just like law enforcement does every day.”

Most immigrant advocates applauded the president’s extension of temporary protection to some three million undocumented parents of DACA (Deferred Action for Childhood Arrivals) recipients, a program that courts subsequently blocked as an executive overreach. Few immigration activists condemned Obama for drawing a line between “good” hardworking immigrant families and “bad” lawbreaking criminals, perhaps settling for the possible in a less than ideal world.

Even as one might criticize Obama for becoming the “Deporter in Chief,” he did not invent the pernicious rhetoric of good and bad immigrants. He merely followed in a long tradition that stretches back to the late nineteenth century when federal immigration restrictions were first written into law to keep out criminals, prostitutes, and the Chinese.

From Coolies to Convicts

In 1862, when President Lincoln signed into law what is arguably the first federal immigration statute, the Anti-Coolie Bill, he did so to protect the rights of the hardworking European immigrants against what Americans perceived as the threat of indentured Chinese workers. While the bill ostensibly sought to prevent the reintroduction of slavery through “coolie” labor, Congress did not penalize exploitative employers (the masters) but instead criminalized the Chinese workers (the slaves).

Federal immigration restrictions were first written into law to keep out criminals, prostitutes, and the Chinese.

The 1875 Page Act rehearsed the same kind of criminalization, this time taking aim at single Chinese women immigrants, assumed to be prostitutes. The nineteenth-century moralizing campaigns are echoed in today’s anti–sex trafficking hysteria that rhetorically contrasts hardworking mothers with immoral and victimized sex workers. In the same way that the Page Act and the 1910 Mann Act criminalized poor immigrant women workers, anti–sex trafficking campaigns end up incarcerating large numbers of poor immigrant women and serve to push their work underground.

The very same year that the United States passed the Chinese Exclusion Act (1882), Congress also enacted a general immigration law that explicitly restricted the entry of “convicts.” Subsequent immigration acts have expanded the categories of the excluded, but the notion that criminals should be kept out and those who commit crimes should be deported has been consistent over more than a century and a half of immigration restriction. Obama’s invocation of families over felons has been baked into the DNA of our immigration system since its inception.

“Good” and “Bad” Immigrants

Just who is defined as criminal has changed over time, and depends on who you ask. In the late nineteenth century, the very presence of male Chinese laborers and single Chinese women was criminalized. Restrictive immigration laws created the first “illegal aliens” out of the Chinese. However, it was not immediately apparent that unauthorized presence in the country was by itself criminal, and even today it is not actually a criminal offense to be in the country without authorization.

Unauthorized immigrants had to be turned into criminals by making the public see immigrants as criminals. The first step was to create the idea of good and bad immigrants, a notion President Theodore Roosevelt articulated in 1903. As he put it, “We cannot have too much immigration of the right kind, and we should have none at all of the wrong kind.” Roosevelt continued, “I hold, Sir, that all immigrants who come to the United States clandestinely, who are smuggled into the territory of our republic, and—of course—thus evade subjecting themselves to the inspection demanded by our laws, are undesirable immigrants and are ‘per se’ immigration of ‘the wrong kind.’” This is the kind of rhetoric that could just have easily been uttered by our current president as by Roosevelt.

In 1906, Immigrant Inspector Marcus Braun reiterated this idea of the good and bad immigrant: “My heart and soul beats warmly for the good immigrant. But, to the very core of my heart I am opposed to immigration which regards the United States to be the dumping ground of the scum of European or Oriental society.” Like Donald Trump, Braun claimed that he was not motivated by racist animus or a religious test, but simply by adherence to the law. What was glossed over by Braun, and Trump today, is how our immigration laws have always been racist in their construction and in their enforcement.

Braun suggested making illegal entry a felony, jailing immigrants for two to three years and forcing them to work to pay for their own deportation.

Braun was truly a man ahead of his time. In the first decade of the twentieth century, Braun had already imagined the kind of detention and deportation machine that would only become real in the 1990s under Bill Clinton, and would later be used by George W. Bush and Obama. Rather than simply deport people caught entering clandestinely, Braun suggested making illegal entry a felony, jailing immigrants for two to three years and forcing them to work to pay for their own deportation.

A century later, this bizarre fantasy became a reality under Obama, a president who incarcerated close to half a million immigrants every year and who deported three million in his two terms in office. The recent class action lawsuit by immigrants forced to labor for less than a dollar a day in a privately-run immigrant detention center in Colorado is just what Braun imagined but could not realize in his day.

From Obama to Trump

When Obama said he was going after gangbangers and not families, liberals applauded. Those same liberals continue to willfully ignore the facts of who was targeted by Obama’s deportation policy, the vast majority of whom had no criminal convictions or were charged with minor misdemeanors. In 2016, the final year of Obama’s presidency when the president had supposedly shifted enforcement toward “serious criminals,” fewer than 8 percent of those deported were felons. If you fail to hit your target more than 90 percent of the time, it’s time to stop shooting.

Trump’s immigration policies, as drastic and horrible as they are, merely accelerate the criminalization of immigrants that was in full swing under Obama. Trump’s Executive Orders substantially expanded the definition of who is a criminal and hence a priority for deportation. Now, Immigrations and Customs Enforcement has prioritized not only those who have committed crimes but anyone suspected of committing a chargeable offense. In our dystopian present, all undocumented and documented immigrants who run afoul of police are vulnerable to incarceration and deportation. Trump’s border wall and mass deportation plan is not a deviation, but rather the logical conclusion of a century and a half of thinking of immigrants as criminals.

A Dangerous Myth

The “felons not families” slogan is a dangerous myth, not only because Obama did not in fact target felons, but because the very idea that these are two distinct groups ignores the basic humanity of those convicted of felonies.

Felons have families. Felons are brothers and sisters, husbands and wives, fathers and mothers. And on the flip side, many of the most heinous crimes, including rape and murder, occur in the bosom of the family.

Until we wrestle with the uncomfortable reality that our entire society has been criminalized, with more than two million people in prison and millions more under the surveillance of the carceral state, we will not be able to break out of the endless cycle of detention and deportation. The answer to undocumented immigration is not more targeted enforcement on criminals, it is changing our laws and policing so that fewer people are criminalized in the first place.

To imagine this utopian future where we jail and deport virtually no immigrants and where there are thousands and not millions of people in cages, we just have to look back to the mid-nineteenth century. History is the science fiction of our time.