Our recent graduate Ben Crouse has a fascinating new paper on SSRN entitled “Worksite Raids and Immigration Norms: A ‘Sticky’ Problem.” Drawing on Dan Kahan’s theory of social norms, Ben critiques the government’s use of high-profile worksite raids as a tactic to deter employers from hiring illegal immigrants. Here is a taste:
The government’s high-profile raids may encourage an anti-enforcement backlash, especially when accompanied by criminal prosecutions of employers and employees alike. In fact, high-profile raids seem perfectly tailored to amplify anti-enforcement norms. By coupling employer enforcement measures with large-scale criminal prosecutions and removal of immigrants, the measures arouse the anxieties of the Hispanic population. By bankrupting large employers, the measures also jeopardize the economic future of the communities that depend on them.
As an alternative to an enforcement strategy built around a small number of high-impact raids, Ben proposes reforms that would result in a larger number of enforcement actions against employers, but with less draconian results for both employers and employees. He would make it easier for the government to sanction employers who hire illegal immigrants, but also reduce the magnitude of the sanctions in many cases, which should diminish anti-enforcement backlash.
Ben’s paper won the Silver Quill Award earlier this year for being one of the top two students comments published in volume 92 of the Marquette Law Review.
“By bankrupting large employers, the measures also jeopardize the economic future of the communities that depend on them.”
Isn’t that the point? That the consequences of hiring illegal immigrants are so disastrous that employers are deterred from doing it?
I realize that this is a game of finding the happy medium point (I think we could all agree that some punishment is necessary but that the death penalty would be too far), but I think it would be hard to argue that the government’s current system is deterring much of anything. I would argue that so long as illegal immigration increases, the deterrent effect of whatever steps are being taken is insufficient.
A happy medium is exactly right. A law focused on deterrence undermines itself when it punishes more severely than society thinks fitting. Tom’s death penalty example is perfect. A law that punished employers who hired illegal immigrants with death would, I hope, not be tolerated by society. Judges may not hand down such sentences, and lawmakers would soon repeal the law. In contrast, an effective law would track society’s moral condemnation of the act.
In the case of hiring illegal immigrants, perhaps uprooting small towns, bankrupting employers, and imprisoning hundreds of employees does not track society’s condemnation of those who hire undocumented workers.
Finally, I also agree that the enforcement tactics have done little to stem the inflow of economic migrants (though US unemployment recently has). Fortunately though, stiffer penalties are not the only option.
Tom,
A lot of social science research indicates that fear of legal sanctions plays a much less important role in securing compliance with the law than do (a) an internalized sense that the law ought to be obeyed because it is the right thing to do, and (b) a fear that breaking the law will result in informal social sanctions (stigma, shunning, etc.). Both of these effects are maximized when the law is seen as having moral legitimacy. When the law is seen as unfair or arbitrary, however, individuals lose their sense of moral obligation to obey the law and communities stop imposing informal social sanctions on law-breakers. For this reason, Dan Kahan, Paul Robinson, and other scholars have argued (persuasively, I think) that when criminal enforcement becomes disproportionately harsh relative to community values, the aims of deterrence are not advanced but actually undermined. (The experience with the war on drugs in inner-city America is arguably a case in point.) Ben’s comment, if I read it correctly, is arguing that our enforcement efforts may also be counterproductive in the area of worksite immigration enforcement, which seems to single out a few big employers every now and then for draconian criminal penalties. And there is indeed evidence of backlash, precisely as the social norms theorists would predict. Ben’s argument, which would replace low-frequency/high-penalty enforcement with high-frequency/low-penalty, is in fact consistent with a long line of psychological and sociological research on how to maximize compliance with the law.
I have much to say about this topic, so I will make it a more extensive post soon. For now, however, another great example of “illegal” behavior whose punishment is often seen as draconian, “illegitimate,” and socially not acceptable (also because of its “excess” compared to the “crime”,) is the enforcement of copyright law against private users who download “pirated” music, videos, or similar. Not surprisingly, despite some enforcement now and then, “free”, i.e. illegal, downloading is not any less in this country now (it is legal in Holland for example, among other “forbidden things”). Simply put the “users” are learning how to “by-pass” the law more efficiently and public opinion is most often not against them at all, if anything the public at large is very much against the enforcers, wondering why they are not busy preventing “real” and much more serious crimes …