Outis

A few notes on language and justice.

“It’s never been easy for someone with a criminal record to find work, but it is becoming increasingly difficult…According to a study of applicants for lower-level jobs conducted by Northwestern University, having a prison record cut by two thirds a black man’s chances of getting called back by an employer, while it cut a white man’s chances by half.” — The Wall Street Journal, August 26, 2004

“Born criminal”

Writing about the modern prison system, the evasive but imaginative historian of ideas Michel Foucalt points to the 19th century as the moment when criminal acts were first claimed to be symptoms of a criminal being.

This shift towards an essentialist definition of “the criminal” was certainly a challenge to one of the pillars of European society: Christianity.

The promise of redemption for those willing to be “reborn in Christ” is extended to all, sinner and saint, alike. To this day, Christians will say “Love the sinner, hate the sin,” thus rejecting the seductive fallacy that only criminals commit crimes.

Of course, as recent events in Florida and, even, in the lore of our current, born-again president would suggest, it is a great deal easier to love the sinner when he or she is rich and white.

That race and wealth should play into this question of who is simply a criminal and who has simply comitted a crime is no coincidence.

The belief that some human beings are natural-born criminals is closely related, in logic if not history, to the belief that race is an indication of genetic capacity; i.e., that the color of a person’s skin can tell us something about their likely strengths and weaknesses.

Even more subtle is the way in which wealth affords the wealthy with a similarly superstitious halo of virtue. A short history of this enduring myth can be found in Max Weber’s essay “The Protestant Ethic and the Spirit of Capitalism.”

To summarize that account, according to the Protestant ethic, the fate of human beings is predestined, meaning some of us are bound for Heaven and others for Hell, regardless of what we may do here on Earth. But how to tell who’s headed where? Once again, according to Weber’s reading of the Protestant ethic, the mystery of our fate can be solved by a close inspection of one’s bank balance.

If you are in God’s grace, your fate is revealed when your wealth multiplies. In this heavenly light, money is not so much a reward in itself but rather a symbol: a clue to the otherwise indecipherable will of God.

In the United States today, each of these myths is alive and well and are often combined as “common sense.”

For example, while there is much evidence to the contrary, class, rather than opportunity, is often portrayed as a significant factor in a person’s propensity to commit a crime.

Ask yourself: who is more likely to steal money, a poor man or a rich man? In fact, a more appropriate question might be: who is more likely to steal money, a banker in a vault or a farmer plowing his fields?

Why is the latter a more appropriate question? The first question requires us to take for granted that wealth is an indicator of morality. We may, as society, believe that wealth is a good thing, but believing that the wealthy are, thus, good people is a fantasy.

In fact, the danger of personification, of turning a verb into noun, is precisely the way in which it opens the door for fantasy to color our understanding of fact.

When we construct the noun “criminal” from the verb “to commit a crime,” we are making a claim with unspecified limits. Thus, a person who commits one crime is a criminal, as is a person who commits multiple crimes. The term “criminal,” then, involves an unknown or unspecified quotient, making it ripe for exploitation.

A criminal, on the loose, can “logically” be portrayed as always about to commit a crime. Just when does a criminal cease to be a criminal? According to this fantastical logic, perhaps, never. In the life of a criminal, long periods of abiding by the law are but lulls of inactivity. Again, by this faulty logic, the only proper response left to society when dealing with a criminal is incarceration for life.

Of course, should a criminal become prosperous through legitimate means, it can then be said that he or she is “in good standing” with society and/or a “productive member of society.” Woe to the person who has committed a crime, done the time, but returned to a life of (relative) poverty.

Once an immigrant, always an immigrant

This propensity to personify verbs and, in doing so, to create hiearchies of people based on emotions rather than fact, is also evident in the rhetoric used to scapegoat immigrants, in general, and illegal immigrants, in particular.

The term “immigrant” is the personification of a verb — to migrate. As a descriptive term, immigrant is of very limited use as it describes but a single historical act.

To refer to someone exclusively as “an immigrant” may create the impression that said person’s life begins at the moment of migration; that their identity and purpose in society is to be a migrant rather than, say, a doctor or a banker.

Within the context of international affairs, the term immigrant is clearly necessary and helpful. However, within the context of domestic policy, the term immigrant is often extraneous and unproductive.

Consider, for example, arguments that pit “citizens vs. immigrants” despite the fact that, in most cases, these are not equivalent terms.

Citizenship is primarily a passive rather than an active status. One may become a “naturalized” citizen, but no such rite of passage is expected of natural-born citizens. Immigrant status, on the other hand, is the result of a specific action.

An immigrant has “done something” that the citizen, for the most part, has not.

Thus, arguments that pit citizen vs. immigrant are often perceived as referenda on the morality of immigration.

A more appropriate contest would oppose citizen vs. resident, as both of these terms are based on participation in a given society, rather than the route by which one arrived into this society — whether by birth canal or boat.

Similarly, it is appropriate to oppose the categories of native-born vs. immigrant, though few but the most superstitious would contend in public that a native is imbued with special characteristics by virtue of his or her longitude and latitude at the exact time of birth.

Those who would attempt to shift this discussion from native-born to “native-like” vs. alien-like, should be prepared to make an arbitrary exemption for those native-born who do not pass a standardized test of cultural literacy and/or behavior.

Should the ability to paraphrase the Bill of Rights become the test of “alienness”? If so, are recently naturalized U.S. citizens, having demonstrated their knowledge of the basics of U.S. political history in front of a U.S. government official, less alien than their native-born fellow citizens who might fail this same test?

Or is “alien” a designation like race, a feature over which an individual so labeled has no control?

In the contemporary American vernacular, the word alien is reserved for extra-terrestrial beings. Only in the legal or formal political idiom, does the word alien apply to non-native-born people. No better proof exists that “alien” in the context of a public policy discussion is a pejorative term than the absence of the world “vehicle” from car commercials.

In contemporary American society, teen-agers don’t ask their parents to borrow the “family vehicle,” nor do we visit the “vehicle-wash” every month. Yet, legally, there are no cars in California, only vehicles. A quick review of the Vehicle Code of California Law turns up only references to such special instances as “house cars,” “pilot cars,” “rental cars,” “streetcars” and “armored cars.”

California Governor-elect Schwarzenegger campaigned to “reduce the car tax” — not the Vehicle License Fee, as it is officially known.

The choice of “alien” when “immigrant” will do is thus not a matter of tradition nor, in most cases, a literal citation of federal law. Rather, a construction like “illegal alien” seeks to compound the gravity of being an “illegal actor” (as in, an illegal driver, an illegal smoker, an illegal yard sale operator) with the non-human designation of “alien.”

The lawbreakers

What, then, of the term “illegal immigrant”? Is it always accurate — is it ever pejorative?

Consider, for example, the following and increasingly common argument: “Illegal immigrants are law-breakers who should be sent back to their native countries, where they should wait in line like everyone else.”

As it happens, at least half of all immigrants designated as “illegal” in the U.S. entered legally and became illegal either by staying past their stated departure date or by violating the terms of their visa by taking a job, changing jobs or failing to attend school. In such cases, the legal status of the person affected is “in flux,” and can often be remedied without punishment.

As of November, 2003, such visa violations are a civil and not a criminal offense. Deportation of this category of illegal immigrant is generally reserved only for those persons who have violated their visa and have also been convicted of a crime.

The half that entered without U.S. knowledge or permission is indeed ostensibly guilty of a criminal act, that of violating a specific federal law. The punishment for this crime, however, will depend on its perceived severity.

For instance, the underreporting of income and/or the over-reporting of deductions on income tax returns are also federal crimes. Yet, because the U.S. populace has an almost universal disdain for taxes, such crimes are not perceived as very severe.

In the case of obtaining an illegal entry to or residency in the U.S., severity is also determined by referring to social and political norms. In both regards, the perception of illegal entry has changed dramatically over the course of history.

For more than a century, the United States had an open border with Mexico. In fact, this was was the case even as various states in the American West were drafting and enforcing laws barring entry to Chinese immigrants. In the 20th century, the U.S.-Mexico border became increasingly significant as a political and economic instrument.

In accordance with these changes to the function and meaning of the border, the legal and cultural status of those who cross from Mexico to the U.S. also changed.

For example, between 1942 and 1964, hundreds of thousands of Mexicans entered the U.S. as “guest-workers” under the auspices of the Bracero program, a labor as export commodity agreement between the governments of the U.S. and Mexico.

When the Bracero program ended, the established flow of “guest-workers” across the U.S.-Mexico border became a flow of “immigrants,” many of whom were now, according to the revised function of the border, “illegal immigrants.”

While this is but one example, it illustrates how legal behavior, i.e. migrating across the U.S.-Mexico border to work in the U.S., can become illegal behavior without a fundamental change in the social benefits or drawbacks of the same activity. In other words, unlike the act of murder, which begins as an immoral act, the act of migration is not, inherently, immoral.

Immigration becomes illegal, but not necessarily immoral, as a function of migration laws that, over time, may and often do change dramatically.

However, such distinctions are often absent in contemporary political rhetoric which characterizes illegal immigrants, first and foremost, as lawbreakers.

The consequences of this characterization are twofold.

First, by seeking to establish that the presence of the illegal immigrant is fundamentally criminal, such rhetoric aims to preclude any discussion of the broader context in which migration takes place or of the behavior and/or rights of an individual migrant. When a person is by definition “guilty,” there is no need for a trial. Thus, the illegal immigrant as lawbreaker is akin to an “escapee.”

Second, the rhetoric of the illegal immigrant as lawbreaker attempts to color such persons as immoral and/or of a criminal disposition.

This assertion of immorality is bolstered by the notion that a person who commits one illegal act is likely a criminal “by nature,” regardless of the scope of the illegal act committed or the context in which it takes place.

Whereas legal trials of illict acts allow for the consideration of such factors as the history of the law being applied as well as the perpetrator’s personal character, history, and/or whether anyone has been harmed by the crime under review, no such examination is afforded to those who are, “on principle” and “in fact,” “already proven” to be “lawbreakers.”

Should such a trial be possible, whether in the court of public opinion or in a court of law, the mitigating circumstances at work in most cases of illegal immigration are significant.

While such circumstances do not and cannot “explain away” the fact that an illegal immigrant has entered the U.S. either on false pretenses or by avoiding a port of entry, they do suggest that the term “illegal immigrant” may be incomplete in a variety of significant contexts.

For example, many researchers devoted to investigating the pros and cons of immigration and, in part, the causes and consequences of illegal immigration, use the term “unauthorized worker” when referring to persons who reside in the U.S. without the knowledge or approval of U.S. immigration agencies.

This designation addresses both the illicit status of the person in question as well as their role in society — that of a worker. In fact, the overwhelming majority of illegal immigrants do work and, as such, are members of the U.S. labor force.

Likewise, discussions that highlight the lack of in-depth or consistent data regarding illegal immigrants — a population in constant flux as immigrants either depart to their home country, become legal residents, or die of natural causes — would do better to use the term “undocumented immigrant” for at least two reasons.

First, “undocumented” accurately describes those immigrants whose presence in the U.S. has not been verified (or approved) by the U.S. government.

Second, “undocumented” describes the predicament of the illegal immigrant as one with a possible legal remedy, an approach consonant with the reality that at least half of all illegal immigrants have entered the U.S. legally and committed only a civil offense related to the terms of their visa.

Clearly, both “unauthorized worker” and “undocumented immigrant” have specific applications and are not adequate for every discussion. However, neither is the term “illegal immigrant.”

footnotes

 natives and nations

“…few but the most superstitious would contend in public that a native is imbued with special characteristics…”

The term “native” is derived from the Latin “nativus” — the past participle of “nasci” which means, only “to be born.” Also a derivative of the Latin “nasci” is the word “nation.” The United States, by being the world’s first “nation of immigrants” is, in fact, an elegant contradiction. In our case, nation is no longer a matter of birth, but of belief. Hence, the “naturalization” ceremony which confers upon immigrants the status of citizens culminates in the “Naturalization Oath of Allegiance.”

 change of address

“In accordance with these changes to the function and meaning of the border, the legal and cultural status of those who cross from Mexico to the U.S. also changed.”

As Douglas Massey et al. point out in Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration: “From 1900 to 1929 Mexicans entered as legal immigrants, from 1942 to 1964 as braceros, and from 1965 to 1985 as undocumented immigrants.”