Is blanket denial of the right to migrate based on criminal history unjust?
December 27, 2012 19 Comments
Post by Vipul Naik (regular blogger and site founder, launched site and started blogging March 2012). See:
John Roccia, a supporter of open borders, wrote a blog post about a month back titled Compassion Within The Lines, where he critiqued self-proclaimed supporters of immigration for their very restrictive conception of what it means to be pro-immigration — supporting immigration only for some classes of people. By and large, I agree with his critique. I’ve been critical of pro-immigration immigrant rights activists and Nathan has pointed out how moderate restrictionists often position themselves as being principled non-extremists by casting open borders as an extreme strawman position. Nathan’s also been critical of the “only high IQ immigrants” position that John Roccia is critical of. Nonetheless, some of John’s critique also extends to open borders advocates on this site, specifically me. In a blog post titled free speech absolutism versus viewpoint-based immigration restrictions, I wrote:
My thumb rule for blanket denials is: anything that constitutes sufficient reason for blanket denial of migration should also constitute sufficient reason for punitive measures under criminal or civil law in the target country of immigration. For instance, murder is sufficient grounds for imprisonment, and hence also, in my book, sufficient grounds for a blanket denial of the right to migrate. In some cases, I think the punitive measure under domestic criminal law really is morally unjustified, and hence restricting immigration on that basis is also unjustified. An example is laws against drug use in many countries — I don’t think drug use is sufficient grounds for imprisonment, and hence also not sufficient grounds for denying immigrants entry. But others, who hold different views on drug use, may come to the opposite conclusion.
So far, so good. It is when we move from criminal law to civil law that things get more interesting. Certain activities, such as libel, contract fraud, and copyright infringement, are punishable under civil, but not criminal, law in most jurisdiction — they are litigated by persons, not prosecuted by the state. Libertarians (and others) are probably unanimous about the evil of contract fraud, and may have the view that, at least in some extreme cases, this may be sufficient grounds for denying the right to migrate. Libel and copyright infringement are trickier, since many libertarians (and others) feel that copyright infringement is not immoral at all, and some hold a similar view about libel. Even for those who are opposed to libel and copyright infringement, deporting people, or denying entry, for these “crimes” may seem like overkill. Other minor “crimes” like traffic infractions may also seem like insufficient grounds for denying the right to migrate.
In other words, for most migrants, any negative externalities caused by the migrant should be dealt with through pecuniary transfers such as tariffs or taxes, or by imposing linguistic and cultural fluency requirements, but for crimes that merit imprisonment, blanket denial of the right to migrate may be the right thing.
Prior to the debate with John Roccia, I hadn’t given a lot of thought to this matter, mostly because most of the people I debate on open borders tend to be far more restrictionist than I am, so I’m not usually in a position of needing to defend specific restrictions. In fact, most people featured in the pro-open borders people list on this website have tacitly conceded the legitimacy of keeping criminals out. For instance, David Henderson describes his version of open borders as follows [emphasis mine, not in original]:
Assume that the U.S. government decided to let anyone in who wanted to come, unless the person had a criminal record or carried a dangerous communicable disease. [...] Now, under my scheme, the U.S. government would couple open borders with a 20-year residency requirement for U.S. citizenship and a requirement that one be a citizen in order to get any kind of welfare, including government schooling. That way, people wouldn’t come here for welfare (I think most of them don’t anyway) and we wouldn’t worry about their voting away the very economic system that made this country attractive to them.
Alex Nowrasteh has also, repeatedly in his writings, acknowledged that restricting the immigration of violent and property criminals, and perhaps even deporting them, is morally legitimate. For instance, while praising California’s TRUST Act, Alex writes [emphasis mine, not in original]:
First, it [the TRUST Act] would limit immigration detainers to unauthorized immigrants convicted or currently charged with a serious or violent felony. If SCOMM must exist, it should exist for violent or property offenders and not otherwise peaceful unauthorized immigrants.
Similarly, he praises some aspects of US immigration policy towards Cuba with the following language [emphasis mine, not in original]:
First, the United States has a unique immigration policy for Cubans. Known as the “wet foot/dry foot policy,” if a Cuban reaches American soil he or she is allowed to gain permanent residency within a year. If a Cuban is captured at sea, he or she is returned to Cuba unless they cite fears of persecution. This means that most Cubans who want to leave, with the exception of violent or other criminal offenders, will be able to stay in the United States if they are able to make it to American soil. No other nationality in nearly a century, except the Hungarians in the 1950s, has been subject to such a generous policy.
John Lee, my co-blogger at Open Borders, has also been similarly accommodating of blanket restrictions and deportations of violent criminals, as witnessed in this blog post [emphasis mine, not in original]:
If, as Obama claims, the US kicked out 1.5 million criminals — ~0.5% of the 300 million-strong US population — why didn’t the crime rate fall precipitously? Oh, that’s right — because, unlike what some selective reports would have you believe, crime rates among immigrants are actually lower than among native-born Americans. Who is Obama kidding? I am sure he deported plenty of vile criminals who don’t deserve the opportunity to live and work in a developed economy, but there is no way he rounded up 1.5 million such criminals without deporting hundreds of thousands of US citizens.
Bryan Caplan, in his Haiti ICE hypothetical, also make an allowance for the legitimacy of immigration restrictions based on the prospective immigrant’s criminal history [emphasis mine, not in original]:
You: Why are you denying me permission to travel to the U.S.?
U.S. Immigration and Customs Enforcement [ICE] Agent: You just can’t go. End of story.
You: Why not? There’s got to be a reason.
ICE Agent: Sir, I don’t have to give you a reason.
You: This is going to ruin my life! Have you looked outside the embassy window? People here are literally eating dirt.
ICE Agent: It doesn’t matter. You can’t come, and I refuse to tell you why.
You: Well, it would have to be a pretty good reason to do something so awful to me…
ICE Agent: No comment.
You: Look, I’m not a criminal. I’m not a parasite. I’m not asking for charity. I’ve got a job and an apartment.
ICE Agent: Unfortunately, you don’t have legal permission to work at that job or live in that apartment.
So in some ways I’ve grown complacent about the idea of blanket immigration restrictions for people with criminal backgrounds, rather than trying to devote my energies to coming up with more humane keyhole solutions. Rightly, John Roccia challenged my argument for a blanket denial to criminals in a comment on his own post. I quote the relevant excerpt:
Second, I don’t morally agree with all the keyhole solutions. In particular, I’m not a fan of restricting immigration based on what would be criminally prosecutable here, for a number of reasons. There are simply too many factors of culture to consider. For instance, what is a “criminal?” Is it someone that has committed a crime? That seems unduly harsh, then – lots of people commit crimes, are rehabilitated, and then live productive lives. A career criminal? What defines that? How many crimes, how often, of what severity, and over how long a time? Any limit here would seem arbitrary. Also, are we basing the “criminal identity” on what their home country says, or what they would have been arrested for here? Seems like you’d have to do the latter, or you’d potentially have two different people with an identical history of actions, one who’d be allowed to immigrate and one not simply because of country of origin. But even if it’s based on what they’d be arrested for here, that leads to its own problems. We’re all aware that a huge amount of crime is created by economic conditions. Who knows if the “criminal” would have committed those crimes if he or she had the life they might have had in America? And why should we believe that someone who stole to survive in Venezuela would still steal here? Pure “criminality” isn’t something easily measured. There are too many external reasons why a crime gets committed, reasons that change if you radically change your environment.
I think that John makes some very good points. In fact, I can think of a lot of people — born and brought up in developed countries — who committed theft and other crimes as youngsters, and are now successful as adults. Actor-cum-tech-investor Ashton Kutcher broke into his high school at midnight to steal money, and was convicted of third-degree burglary. Personal development guru Steve Pavlina was arrested for grand theft in Sacramento, California in his late teens. Vivek Kundra, who served as the first Chief Information Officer of the United States, shoplifted four shirts from JC Penney in his youth.
At the same time, as John concedes, there are some people who are “career criminals” — and they differ from people who committed youthful indiscretions and have successfully rehabilitated themselves. I would argue that it is morally legitimate and socially prudent to deny them entry for the welfare of natives and others residing within the territory. Of course, many “career criminals” are already behind bars within the country they are currently residing in as well, and/or have their emigration rights restricted by their own country, so additional immigration restrictions may not be necessary. But there are probably edge cases. What about a person who committed murders, but had his sentence commuted or drastically reduced due to good behavior in prison or proof of temporary insanity or a sympathetic judge? Does the person still have the right to migrate, or is it morally permissible to restrict that right citing a risk, albeit not a certainty, that this person could commit more crimes?
These are difficult questions. Further, somebody who has committed a relatively minor crime is still more likely than a person without a criminal background to proceed to more major crimes. Are there any keyhole solutions? I’ve been thinking about this, and here are some possibilities.
Restricting immigration for people who have committed crimes recently
One idea is to restrict the immigration of people who have been convicted of committing crimes in the recent past, where the definition of “recent” would vary based on the nature of the crime. For instance, a person arrested for shoplifting in the UK may have his/her right to immigrate to the US restricted for one year following the shoplifting charge. For a more serious charge, the right to immigrate may be restricted longer. The time-limited restrictions would also apply to people who are accused of crimes but have not yet been convicted, until such time as they receive an exoneration.
In crimes that are punished with incarceration, it may be relevant to impose the time limit from the time of release from prison. This makes more sense, because what’s relevant for the purpose of the immigrant-receiving country is whether the person can refrain from crime while free. Thus, a person accused of battery or assault may spend a number of years in prison without further accusations of battery or assault, but this time spent in prison does not prove that the person would refrain from these activities once free. So, the restriction may be “three years not in prison without any charges of battery or assault” in order for the person to be eligible to immigrate.
What this does is to give people with criminal history the hope of rehabilitation. At the same time, it does serve as an additional incentive to deter people in poor countries (who hope to migrate to lands of more opportunity) from engaging in petty criminal activity that may significantly delay the day they can leave.
Additional security deposits
Another possibility, which applies particularly to people with histories of non-violent theft (such as “cold” burglaries, where they do not confront or use violence against the victim of the theft) is to require high security deposits to insure against the possibility of the person committing theft. The security deposits could be designed to be refundable (i.e., returned when they leave the country, or deductible against taxes if they stay) or non-refundable, or perhaps partly refundable. If we’re following Nathan Smith’s DRITI keyhole solution, then the security deposit could be added (for people with criminal histories) to the refundable return deposit as an initial payment that the migrant needs to make, and then transferred to the person’s mandatory savings account if the person stays for a long period of time without any criminal activity.
Presumption of denial
My general understanding of open borders is that the presumption would shift towards allowing people to migrate, and that any visa denial would need to be explicitly justified and would need to stand up to scrutiny and challenge. Under the de jure status quo, consular officers can deny visa applications at will, and in so far as they provide reasons for rejecting a visa, this is out of the goodness of their hearts, and is not obligatory for them. The burden of proof is on the visa applicant to demonstrate that he/she is worthy of getting a visa. With open borders, the burden of proof would shift onto the consular officer if he/she wanted to deny a visa application. My co-blogger John Lee has written about this in the past (see also his blog posts tagged “arbitrariness”) so I won’t stress this point too much here.
In the case of people with criminal histories, however, I think it is reasonable for the presumption to be against migration and for the applicant to need to affirmatively overcome the presumption. In other words, I’m saying that the way the status quo is currently (at least de jure) stacked against all potential immigrants is applicable only to immigrants with criminal histories. If they are able to make a strong case for themselves to overcome the presumption, as I’m sure people like Ashton Kutcher can, then they get to migrate. However, the consular officer can reject their application based on the criminal history alone and does not need to offer further justification.
Combining these keyhole solutions
The three ideas I have outlined above can be combined in different ways. One can imagine a “hard” limit of a certain number of crime-free years before a person gets the opportunity to immigrate. Beyond that, one can imagine a security deposit whose amount reduces gradually with time. Thus, perhaps a person arrested for burglary cannot immigrate for at least five years after the burglary charge, with at least two years out of prison. If the person wants to immigrate immediately afterward, he/she needs to pay a security deposit of (say) $3000. However, the security deposit amount goes down by $500 every year, so that six years after the original restriction expired, the person’s security deposit requirement vanishes. One can also imagine that within that window period of six years between the end of the hard restriction and the vanishing of the security deposit, the consular officer has discretionary authority to deny entry without needing to specify additional reasons. Various other combinations of these keyhole solutions are also possible.