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Is blanket denial of the right to migrate based on criminal history unjust?

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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. Continue reading Is blanket denial of the right to migrate based on criminal history unjust? →

Guest worker programs and worker abuses

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A while back, Daniel Costa of the progressive Economic Policy Institute, a think tank that advocates for the interests of poor Americans, did an interesting blog post titled On International Migrants Day, remember that guest worker programs aren’t the solution for immigration reform. This met with a lot of pushback on Twitter, and Costa followed up with a related blog post describing what he considered to be extensive abuses in guest worker programs in the United States (the H2 visa program). Among the stories that Costa linked to were Filipino teachers being conned by a recruiter, workers reporting exploitation by a seafood company in Louisiana that supplied to Walmart, and a negotiated settlement about people under J-1 visas being exploited at work. Based on these and other incidents, Costa is understandably very skeptical of proposals that go by the name of guest worker programs.

I will not commit the moral and strategic error of shrugging off the problems of current H2 visa programs in the US with “not as bad as” trivialization. I think that problems and abuses at guest worker programs, while not the worst thing in the world, are definitely worth putting in the balance when proposing the expansion of guest worker programs. However, I think that Costa’s prescriptions don’t necessarily follow from his observations.

Guest worker programs: tied to an employer?

Most open borders advocates view the keyhole solution of guest worker programs as a half-way compromise, not a desirable ideal (in the jargon of this blog post, they tend to have a (1) > (2) > (3) preference ordering: open borders preferable to expanded guest worker programs preferable to the status quo).

As the guest worker programs page on this site describes, there are many different parameters whose values can be fiddled and adjusted while still staying within the broad category of guest worker programs: the time duration of the program, flexibility in terms of jobs, extent of legal rights, eligibility for citizenship, deportation conditions, and eligibility for welfare benefits being the parameters listed on the page. Of these, the first three (time duration, flexibility in terms of jobs, and extent of legal rights) are the most relevant for considering the problem of worker abuse. The kinds of guest worker program solutions that open borders advocates typically propose are those with essentially unlimited (or periodically renewable) time duration, the ability to switch jobs at will (i.e., not tied to any particular employer), and full legal rights (however, some proponents of these programs oppose some labor regulations per se, like the minimum wage, for natives as well as foreigners). Further, as a general rule, people coming at guest worker programs from an open borders angle oppose quantity caps on the amount of guest worker labor that can be used.

I think that these key elements will lead to abuses of the kind that Costa sees in current guest worker programs becoming more rare. With the status quo in the US, guest worker programs are heavily time-limited and tied to specific jobs. There is also a pretty severe quantity restriction on these programs. This makes it extremely hard for workers to “shop” between employers, both at the time of applying for a visa, and once they are in the US. Their main element of discretion is in whether they choose to come the next year. Even in the status quo, reputational effects and the need for good worker morale check some worker abuses. But with fewer quantity caps, fewer time limits, and the ability to switch between jobs, worker abuses are likely to be lower as workers can “shop” better.

A quick analogy might help. Suppose a particular factory is the main employer in town, and it pays its workers very low wages and has demanding working conditions. Now, a competing factory wants to open up in the same town. Should the residents of that town fear the new factory, based on the rule that factories exploit their workers? Or should they welcome the new factory, in that the competition between the two factories may improve conditions for workers? While the details vary from case to case, I would suspect the latter.

Now, admittedly, the cases aren’t quite parallel, because in the analogy I gave, the population of the town was not changing. But if the creation of a new town just attracts more labor from outside the town, then the effect on wages in the original factory may be smaller (though probably still positive). Even here, though, unless you discount completely the welfare of people who move to the town, the net effect on wages is still expected to be positive.

It might be helpful to look at a blog post from Michael Clemens on migrant labor in the US agricultural sector. Here’s what Clemens says:

If you think these difficult jobs are bad for Mexicans, think about this: 85% of the NCGA’s Mexican seasonal employees last year were repeat employees. They came the previous season, and they chose to come back the following season. It is inappropriate and unfortunate that some labor advocates call H-2 visa jobs “close to slavery.”Slaves had no such choice, and would not have happily gone back to the plantation that owned them. Furthermore, the H-2 visa holders who work for the NCGA are not tied to a single farm: their visa allows them to work throughout the 700-farm network, so that there are opportunities to move if any given farm violates labor standards. Any shortcomings of the H-2 program are not the fault of migration itself; they can be fixed by fixing the program.

I don’t have independent corroboration of these statements, but it does seem to make sense that workers whose visa allows them to switch employment between a lot of farms in a huge network would be less susceptible to the problems of worker abuse. Repeat seasonal migration also creates incentives for employers to treat workers fairly and honestly.

Note: I read through the Red Card solution website, which offers a detailed guest worker program proposal for the US, and I was disappointed to see that the proposal did not address the issue of how this proposal would accommodate the possibility of workers changing employers — would they need to return to their home country to re-apply, or could they change their authorization while still in the US? Continue reading Guest worker programs and worker abuses →

Open borders advocates: guilty of the “not as bad as” fallacy?

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RationalWiki‘s page on not as bad as describes it as a form of the moral equivalence fallacy:

There are a few different reasons someone will want to pull a “not as bad as” comparison. Consider a generic argument about something, A, and the reasoning below:

B happened, and is worse than A.
Therefore A is justified.

This is the most blatantly fallacious form of the argument and is a hindsight version of the “not as bad as” argument that states past actions can legitimise current actions. The existence of a worse atrocity in the past, however, does not actually justify anything – it merely points out that there have been similar things in the past. People who use this as a justification may be well aware that it’s logically fallacious, and use it purely as rhetoric, or as a distraction.

Open borders advocates often critique restrictionists using arguments like the master race critique from Bryan Caplan: they critique restrictionists for being unduly obsessed with the plight of the poor in the developed world, whose poverty is not as bad as the poverty of poor people in other parts of the world, or the poverty of poor people historically. Are open borders advocates committing the “not as bad as” fallacy, by trivializing, ignoring, and justifying inaction regarding the plight of the poor in the developed world, just because others have it worse?

I don’t think so. If it were the case that open borders advocates are shrugging off the harms to poor natives from immigration citing that things were worse for others, without noting any offsetting benefits to others, then this would be an example of the fallacy. However, in addition to their moral arguments, open borders advocates explicitly note their belief that open borders generate more benefits, particularly for people who may be much poorer than the poor in the developed world — in other words, poor people that the egalitarian or worldwide Rawlsian should be more concerned about. The harm wrought to poor natives is thus inextricably linked to the benefit to poorer non-natives; the inextricable link between these is what makes this a non-fallacy.

RationalWiki agrees later in the page that there is a valid form of the argument that is not fallacious, but adds further caveats:

Action B is worse than action A.
Therefore action A is the right thing to do.

This is perhaps the most valid comparison that can be drawn if discussing two courses of action that can be taken, but like most “not as bad as” arguments potentially suffers from the fallacies of the false dichotomy and argument from adverse consequences. If the argument is about ranking things from bad to worse then it’s fine; but you cannot justify A by citing only B because the two may not have anything to do with each other. This is common if Secret Option C is actually the best, but someone wants to make a red herring to avoid anyone spotting its existence.

Again, in this case, open borders advocates have proposed for consideration various versions of “Secret Option C” that could be win-win for all parties — namely, keyhole solutions such as immigration tariffs, guest worker programs, and my co-blogger Nathan Smith‘s elaborate DRITI scheme. This does not mean that all open borders advocates sign on to these keyhole solutions as truly necessary; often their signing on is in a spirit of compromise. For instance, here’s what my co-blogger John Lee said in a comment on his own post:

Thanks Nathan. I think we agree on what’s probably the best achievable policy reform for now (immigration tariffs), but I am inclined to disagree with your moral preference for Pareto-improving policies here, as well as your characterisation of them as merely “a little unfair”. I think immigration tariffs would be a massive improvement, but remain a distant second-best policy (from a moral standpoint) to true open borders. I used to consider immigration tariffs the best policy here, but have been convinced by the economic evidence that I was placing far too much weight on natives’ welfare, and far too little on migrants’ welfare. (This change in my beliefs is something I plan to write more on, so I won’t elaborate too much on it here.)

But even here, John Lee is not dismissing the harms to natives, but rather, weighing these against the gains to non-natives as well as moral considerations in coming to his conclusion that, in fact, not having immigration tariffs would be his preferred solution, if indeed that were politically feasible.

So, as a factual matter, I don’t think that open borders advocates are committing the “not as bad as” fallacy.

However, I think that the rhetoric of open borders advocates can sometimes sound exceedingly blase towards the plight of their fellow natives. Continue reading Open borders advocates: guilty of the “not as bad as” fallacy? →

Immigration crackdowns: federal versus state

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Note: This blog post is a little blase about the stock versus flow distinction, namely, the distinction between immigrant numbers (the stock) and net immigration levels (the flow). I didn’t belabor the distinction because I don’t think the distinction was particularly relevant to any of the points I was making, but others might disagree.

Here’s a plausible theory that has emerged from recent blog posts and comments on this site, as well as other material I’ve read, regarding the effect of immigration crackdowns on illegal immigration at the federal and state levels:

  • Ceteris paribus, if a single US state cracks down on illegal immigration in that state, illegal immigrant numbers and proportions would tend to fall in that state. Most of this, however, would be to the detriment (from a restrictionist perspective; open borders advocates might call it “benefit” instead) of other US states: immigrants would move to the other states, and potential immigrants would find other states more attractive to settle in.
  • If, however, all states were to crack down on illegal immigration simultaneously, or if a federally coordinated crackdown were initiated, then the net downward effect on illegal immigrant numbers would be much lower than the effect for any single state, because the immigrants are less likely to leave the country than they are to move to neighboring states. In other words, estimates of the success at a national level of strong immigration enforcement based on their “success” in individual states are likely to lead to overly optimistic (from a restrictionist viewpoint) estimates of the decline in immigration levels and/or total immigrant numbers.

My main criticism of economic determinism (which says that immigration numbers are determined by economic trends rather than immigration policies), at least in the US context, has been that states that embraced immigration crackdowns saw their illegal immigrant numbers decline. At the same time, the numbers regarding overall cross-border migration flows seem to suggest that state-level immigration crackdowns were relatively insignificant in their effects on these flows. The above offers a possible reconciliation.

My co-blogger Nathan Smith, in his book Principles of a Free Society, says something similar in the context of a border fence to what I’ve just said about crackdowns (you can download the PDF or DOC of the immigration chapter from which I quote):

Experts like Douglas S. Massey insist that all the increases in immigration enforcement since the 1980s have failed not only to stop, but even to slow illegal immigration, and even that they have increased permanent illegal migration by making the alternative of seasonal migration more difficult. I find it hard to believe that enforcement has been that ineffective; yet there is an easy way to make sense of the claim. Border enforcement increases the cost, in money and hardship, of migrating, but that cost is still small compared to the value of migrating.

If U.S. GDP per capita is $46,400, while Mexico’s is $13,500, and if we assume the economic growth rate in both countries is about the same and the discount rate is 1% more than economic growth, the benefit of living in the U.S. rather than Mexico for a typical migrant might be on the order of $1.3 million. The rewards, then, may just be too large for the border enforcement measures applied so far to make much of a difference in the incentives for migration. […]

Economically, the United States is rather homogeneous: GDP per capita differs from state to state by a factor of two or less. For a prospective illegal immigrant, one way into the country may be about as good as another; but there is a strong incentive to get in somehow. If there is a fence at one point on the border, a rational migrant will go to another part of it. If there were a fence along the whole border, it would be time to go over or under or around. A person can get over a fence with ladders, or tunnel under it, go around it by boat through the Gulf of Mexico or up the Pacific Coast, or fly over it in a small plane, or perhaps even as a human cannonball with a parachute.

Although the thesis outlined above sounds prima facie plausible, I’m ambivalent about its truth. On the one hand, the substitution effect between states is closer than the substitution effect between countries, so that does point to a plausible reason why the “success” of enforcement measures in individual states would overstate their success if adopted simultaneously by all states, or if adopted through a federally coordinated initiative in which all states participated actively. On the other hand, if the measures were adopted in all states simultaneously, this might deter potential migrants to each individual state more because they know they have fewer fallback options. If Arizona alone had strong enforcement, a person might still migrate to Arizona, knowing that he/she could always escape to California if things got tough. If, however, Arizona and California both have strong enforcement, this makes Arizona even less attractive.

These conflicting effects mean that looking at state immigration crackdowns to predict the effects of an “all-state” or federal immigration crackdown is fraught with uncertainty both ways.

PS: Just to be clear, I think that measures being “successful” in the sense of reducing illegal immigrant numbers does not make them worth enacting (obviously, or I wouldn’t be posting this on an open borders blog). In fact, the very “success” of these measures might cause an adverse economic impact. Also, I think that the morality of many strong enforcement measures is questionable, though this is not the place to voice those concerns. The questions above are more about empirical predictions, not about prescribing a particular course of action.

Open borders advocates and private charity

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This post is about an accusation of hypocrisy leveled at open borders advocates. For the philanthropic possibilities towards open borders, see possibilities for philanthropy towards achieving more migration and/or open borders.

Restrictionists have attacked open borders advocates in a number of ways, but one recurring theme in many attacks is the hypocritical private behavior of open borders advocates. Do open borders advocates donate their money to starving children in Africa? If not, what right do they have to advocate open borders, which, in the restrictionist view, impose costs on natives for gains to foreigners? For instance, john oester:

So following your own children analogy, do you feel it morally appropriate to hold back any funds to allow your own children to live at anything more than the basest subsistence level, including a lack of all luxuries from shoes to a college education, while other people’s children are starving throughout the world? If so, then your actions and irrational favoritism of your spawn, are allowing equally deserving children throughout the world to starve just so your children can have central air conditioning, a new winter coat, or other trapping of such a wasteful American lifestyle. I find you to be a monster that you can possibly sleep at night knowing how many children in Sudan could be saved today if you simply signed over your full paycheck to USAid without delay….the clock is ticking.

It would be tempting for open borders advocates to dismiss this as an ad hominem attack and choose not to reply. However, I think that the concerns raised about open borders advocates’ private hypocrisy need to be addressed, particularly given that many open borders advocates rely on their personal credibility to support their arguments.

Let me begin by pointing out that there are radical utilitarians who argue for affirmative moral obligations to give, not just some, but a lot of, one’s wealth to alleviating poverty and its ill-effects, including to people you may never see or know and who live in far-away lands. And they argue this seriously, not as a reductio ad absurdum or to accuse people of hypocrisy. The utilitarian philosopher Peter Singer has used the drowning child analogy to argue that we are morally obligated to donate a substantial amount of wealth toward poverty alleviation. Singer begins with an observation that most people would sign on to: if your donation can directly save a life for a minor inconvenience to you, you should make the donation. He then goes on to observe, however, that even after you have made the donation, you can make a further donation to save a life, and so on, and therefore you should keep donating until the overall inconvenience to you is sufficiently substantial that donating more is comparably inconvenient to letting a person die. This apparently simple logic has radical implications for how much individuals should donate to poverty alleviation, as per Singer.

Libertarians like me take issue with this consequentialist utilitarian analysis, primarily on the grounds that donating to charity is supererogatory, so even in cases where it saves lives, it is not morally required (for more on my reasoning, see here and here). I would also add that there are a lot of local knowledge and information problems with figuring out what charities do how much good and why. Continue reading Open borders advocates and private charity →