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State Anti-Immigrant Laws and Human Trafficking

Originally published on Wednesday, Jan 11, 2012 on  RaceTalk.org

Immigrant workers.jpg — Arizona’s SB 1070 has left a path of destruction in its wake – harming families, immigrant communities, and various state economies, especially agribusinesses and farms.  Georgia, Utah, Indiana, South Carolina, and Alabama have attempted to follow Arizona’s example with their own laws targeting immigrants.  These anti-immigrant laws end up harming all of our communities because they promote abuses such as racial profiling.  And while these laws target all immigrants, they are especially harmful for immigrants exposed to dangerous situations, such as victims of human trafficking or other crimes, who are often already afraid of the authorities.  Additionally, the passage of these laws has increased the economic problems of these states, including labor shortages in the agricultural, contracting, and homebuilding sectors.  In response, some of these states, such as Georgia and Alabama, are relying on work from prison labor and probationers, a suspect practice in the context of human rights.  Out-of-work probationers and inmates nearing the end of their terms are, for instance, working on fruit and vegetable farms.  Because such workers are already vulnerable, these new state anti-immigrant laws have a very real potential to give unscrupulous employers the chance to increase the incidents of coercion or abuse.

The anti-immigrant atmosphere in these states has had an impact on all immigrants.  In Alabama, for instance, tens of thousands of Latino workers, including legal permanent residents, visa holders, and those without immigration authorization, left the state in 2011 after its anti-immigrant law went into effect.  As a result, federal and state officials met with agribusiness owners and farmers last month to address the chronic labor shortages that followed passage of Alabama’s HB 56.  Despite the claims that such anti-immigrant laws would help the economy, businesses have actually been significantly harmed.  Georgia, for example, has already lost hundreds of millions of dollars and could lose up to a billion dollars in the agricultural sector alone.  In both states, eligible workers did not readily apply to replace immigrant workers despite the high unemployment rate (Georgia’s unemployment rate is 9.9%, while Alabama’s rate of unemployment currently hovers at 8.7%), creating a labor shortage in these industries.

The labor shortage is due to a variety of factors.  The work is physically challenging and sometimes dangerous, which can result in lifelong injuries.  Volume and speed are essential.  The hours are long, sometimes 16 hours a day, outside under the blazing sun.  And the wages are nominal, at just above minimum wage.  Instead of repealing the law that caused the labor shortage or regulating these industries so that they could attract workers in a sustainable fashion, these states instead turned to their respective departments of corrections.

Under the 13th Amendment, slavery or involuntary servitude is permissible “as a punishment for crime whereof the party shall have been duly convicted.”  Georgia Governor Nathan Deal requested that the state’s Department of Corrections find probationers to fill the estimated 11,000 openings in the agricultural community. The timing of these efforts indicates that this is the result of the loss of Latino workers who left the state when HB 87 was enacted.  The collaboration between the state and private interests with respect to the use of probationers is reminiscent of convict leasing, which ended in the early twentieth century.  Former Atlanta Mayor Shirley Franklin blogged:

The suggestion of sending probationers into the fields to solve our self-inflicted economic wound is nothing more than retrogressing to an earlier shameful time in our State’s history of victimizing hundreds of mostly black men and condemning them to near slavery, while the rest of us watch silently.

The probationer alternative has so far been extremely ineffective, as demonstrated by the fact that “probationers picking cucumbers couldn’t keep up with their Latino counterparts and had all quit by mid-afternoon” during the first two days of the program.  Georgia is turning to prison labor to address the “$74.9 million in crop losses tied to farm labor shortages” in the state’s $68.8 billion industry.  One survey estimates that there are as many as 11,080 farm jobs open in Georgia alone.  Alabama appears to be following Georgia’s example.  The state’s Agriculture Department has recommended substituting prison inmates for its lost migrant workers.

Regardless of what prisoners and probationers may have done in the past, the use of prison labor and anything that remotely resembles it is rife with the potential for human rights abuses.  The chain gang system of the post-Civil War convict lease institution is the most heinous example.  While modern-day prison laborers are entitled to at leastnominal wages and are no longer rented out to private interests like property, there is still a strong coercive component to state-sanctioned use of prisoners for work.  Anti-trafficking advocates work to protect the rights of agricultural workers who often suffer from abusive and brutal working conditions in the fields.  These states need to analyze the potential repercussions of the anti-immigrant policies they have instituted and learn from the mistakes of the past.

Since passage of Arizona’s SB 1070 and its offspring, federal and private actors have launched challenges in federal court.  The Justice Department challenged SB 1070 in July 2010, arguing that Arizona’s law “unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy.”  The ACLU and other civil rights groups filed a lawsuit contesting Georgia’s HB 87 in May 2011.  The Southern Poverty Law Center and other civil rights groups similarly challenged Alabama’s HB 56 in federal court last November.  Even The Colbert Report satirized the repercussions of Alabama’s law, stating:

Now instead of having our food tainted by illegal aliens, it’ll be harvested by perfectly legal criminals.  This plan worked perfectly in Georgia, other than the working part….  Turns out Americans who’ve chosen a life of crime don’t have quite the same work ethic as Guatemalans who’ve walked through 500 miles of desert to feed their children.

The current spate of laws encourages states and impacted industries, such as agribusinesses, to resort to dubious practices which may lead to abuse and coercion of vulnerable prison workers.  They also stifle the willingness of victims of trafficking and other crimes to report their victimization and abuse to law enforcement authorities.  One of the most effective forms of coercion traffickers use against their victims is to claim that the government will arrest, detain, or deport them if they are ever discovered.  A victim trapped in a coercive work environment, with little or no knowledge of his rights or the laws that protect him, is likely to be far less inclined to run away if he is afraid of being returned to his country of origin.  Even if he manages to run away from his trafficker, he is unlikely to report what happened to him, letting the perpetrator escape without punishment and continue to inflict the same abuses on others.  Law enforcement authorities rely on the testimony of trafficking survivors because other evidence is often unavailable.  Rather than attacking immigrant communities or repeating the mistakes of the past, states, together with the federal government, need to improve working conditions in low-wage industries, such as the agricultural sector, to find ways to attract workers for a sustainable economy.

By Ivy Suriyopas

Ivy O. Suriyopas is a Staff Attorney with the Anti-Trafficking Initiative at the Asian American Legal Defense and Education Fund (AALDEF). The Anti-Trafficking Initiative addresses the intersection of immigration, race, class, age, and sex while adding to AALDEF’s comprehensive approach to serving the Asian American community. She provides legal representation, conducts community education and outreach, and engages in policy advocacy on sex and labor trafficking issues. This legal representation includes immigration assistance as well as civil litigation for claims involving the Trafficking Victims Protection Reauthorization Act, the Fair Labor Standards Act, and other federal and state laws. Ms. Suriyopas was formerly an Equal Justice Works Fellow and a summer clerk at AALDEF. Her previous legal experience includes externships with the Honorable Martin J. Jenkins of the Northern District of California and the ACLU of Northern California. She served as Co-Editor-in-Chief of the Hastings Race and Poverty Law Journal and studied international human rights law in South Africa through Howard University. She received her J.D. from the University of California, Hastings College of the Law and her B.S. in Policy Analysis and Management from Cornell University.