Confronting the Human Rights Concerns of SB1070
A reflection on the September uRSA focus event “Arizona Immigration: the Rise (and Fall?) of SB1070”
Since its proposal, SB1070 has generated a polarizing debate on the issue of illegal immigration. As fierce as the arguments on both sides have been, the mainstream debate on SB1070 has remained rather narrow in scope. Conservatives argue that illegal immigrants are a drain on the system and a concern for national security. Liberals argue that proper enforcement of SB1070 requires that citizens of color be subjected to racial profiling. Neither side seems too concerned with turning to other issues that the controversial law raises.
That is why it was particularly refreshing to hear the three speakers on the SB1070 panel broaden the scope of the discussion. Chris Newman, Legal Director of the National Day Laborer Organizing Network, discussed the political capital of SB1070 for Republicans and illustrated how the statute fits into a larger political agenda. Professor Mona Lynch, author of Sunbelt Justice, a study of Arizona’s penal system and Southern law enforcement’s cowboy culture, provided a socio-historical framework of Arizona and explained the cultural context that allowed the bill to pass. Finally, our own Professor Jennifer Chacon explained the legal basis for SB1070 and discussed the major legal problems that have developed from its passing.
One of the goals of the panel discussion was to explain exactly what makes SB1070 such a heinous law. Answering that question is not easy considering the statute’s many questionable provisions. It requires law enforcement officers to stop a person who “appears” to be an undocumented citizen, which seems to be based on nothing more than racial profiling of Latinos. Prior to deportation, the law allows for the relocation of undocumented citizens to “tent cities,” which resemble refugee camps in war-torn countries. It also permits citizens to report law enforcement officers to the government for not enforcing the statute.
In my mind, one of SB1070’s most fundamental flaws is its stated purpose. SB1070 is a policy of attrition: its goal is to make life so unbearable for undocumented citizens that they choose to self-deport. Even though there is little to no evidence that such a policy would work, there remains an important question to be answered: Is this a policy that a free democracy should aspire to have? There seems to be something very wrong, and a little ironic, with the idea that in order to protect the Land of Opportunity, we should turn it into a place so inhospitable that it makes people leave and never want to return. The justification offered for attrition is that it targets people who are not citizens and thus have no legal rights to be violated. This is simply not true; aside from the basic human rights afforded to all people by virtue of their personhood, undocumented citizens have constitutionally protected civil rights as well. The Supreme Court case Plyler v. Doe held that the meaning of the word “person” in the Fourteenth Amendment means “person” in the ordinary sense of the term; the term is not synonymous with “citizen.” Consequently, the Court ruled that undocumented people are entitled to certain protections.1
Rhetorically, a policy of attrition like SB1070 can only be morally justified if the targeted group is somehow less worthy of humane treatment than other groups. Is there a better way to dehumanize a target group than by criminalizing them? This brings us to the second major problem with SB1070: It criminalizes a group of people whose “crime” is more a matter of regulation than of public safety. Unlike criminal statutes, which seek to codify and punish what our society sees as bad or immoral behavior, immigration law focuses mainly on ensuring that the flow of people in and out of the country is regulated. SB1070 takes illegal status out of the regulatory realm and places it in the criminal sphere, which encourages the public to see undocumented citizens as criminals—with all the negative connotations of the term—rather than workers with an illegal status.
The response from the Right to this point is that illegal immigration is not a victimless crime. Illegal immigrants, the argument goes, steal jobs from Americans and put a strain on social services by receiving benefits and not paying taxes. All evidence, however, points to the contrary. Taxes and public benefits like Social Security are deducted from wages before they are given to workers. Undocumented citizens do not feed off the system; rather, they pay into it without having a means to collect by virtue of not having a valid Social Security card. In addition, there is little to no evidence, statistically or anecdotally, to suggest that unemployed Americans would take the mostly manual labor jobs currently performed by undocumented citizens if those positions became available.
There is certainly no definitive answer as to why undocumented people are being targeted, but I am partial to the explanation offered by our panelists. As a result of drastic changes in our lives—destabilization after 9/11, economic downturn, and an increasingly polarized political climate—many Americans have turned to what Professor Mona Lynch calls “moral scape-goating.” Even a cursory look at the social history of our nation reveals that it is not unusual for Anglo-nativist, anti- immigration rhetoric to rear its head during times of crisis.
The criminalization of undocumented people has followed a similar pattern and resulted in many of the same effects as the criminalization of urban African Americans. Branding disempowered people with the mark “criminal” allows us to create a division between “us” and “them.” It allows us to exclude from the body politic entire groups of people living in this country. It allows us to deny them fundamental rights because their personhood is of a lesser sort than ours is. It allows us to ignore the structural inequalities that give rise to the social problems that we call crime.
Although I cannot offer a specific plan for immigration reform, I know that a solution must allow for a viable, fair path to citizenship for those already in the country and access to visas and green cards for those who choose to work and live here. It must include an overhaul of our foreign policy so that Latin America can provide to its people the economic benefits that immigrants see in America. Most importantly, any solution we adopt must recognize and respect the humanity of those who are most at risk of exploitation. Our concern for protecting fundamental rights must not be limited to citizens; it must extend to all people within and beyond our borders.
For pictures and a full video of the September uRSA focus event “Arizona Immigration: the Rise (and Fall?) of SB1070,” please visit the uRSA website at http://www.ursa-law.org/photosandvideos.html
1. Plyler v. Doe, 457 U.S. 202, 212 (1982)