Tag Archives: keyhole solutions

How did we get here? Chinese Exclusion Act buildup (1848-1872)

When co-blogger Chris Hendrix started off a series a couple of years ago on the origins of immigration restrictions, he fittingly began with the Chinese Exclusion Act (1882), looking at the arguments made for the act at the time. He examined them both the evidence available at the time and the evidence that has emerged since then. In a subsequent post in the series, I briefly examined the early years of the implementation of the Chinese Exclusion Act (1882-1910). While both these posts examined some aspects of the Chinese Exclusion Act in some detail, there is a lot about the history and aftermath of the Act that went unexplored.

Recently, I had the opportunity to create a number of Wikipedia pages on topics related to the Chinese Exclusion Act: Chae Chan Ping v. United States, Angell Treaty of 1880, Chy Lung v. Freeman, Fong Yue Ting v. United States, and others. As I worked on these pages, I familiarized myself more with the situation surrounding the Chinese Exclusion Act. I became more convinced that a more in-depth look at the Chinese Exclusion Act would help shed light on the modern border control regime.

I therefore intend to do at least three more posts on the subject. The current post will focus on the key developments and tug-of-wars that occurred until about 1872 (with passing mentions of trends that would continue into the late 1870s). A later post will discuss the more eventful years starting 1873. The year 1873 was marked by the Panic of 1873, the beginning of an economic downturn in the United States. The economic downturn was likely a contributing factor to increased anti-Chinese sentiment over the coming years, and key legislative and judicial developments related to immigration happened beginning 1875.

This post looks at the “keyhole solutions” used by state and local law enforcement in California before the federal government got on board with significantly restricting immigration.

Table of contents

Limitations of my analysis

Perhaps the biggest limiting factor to the quality of my analysis is the fact that such little data is maintained about that time period; in particular, about how ordinary people (both Chinese and the others in California) perceived the situation at the time. There is no Twitter, Tumblr, or Instagram to gauge public sentiment. There was no equivalent of Gallup polls. There were few newspapers and even those that existed don’t have all their archives available to peruse. Therefore, apart from actual legislative or judicial records, the main guidance present is various summaries provided by historians, who are in turn relying on observations penned by a few people, who may in turn have their own biases.

The lack of good resolution on who was thinking what leads to broad-brush generalizations in many parts of the text. I talk about the “Chinese” and “whites” but both groups were probably quite heterogeneous in terms of their habits, attitudes, beliefs about the other group, legislation they supported, etc. A more able historian with more time to research the issue and more space to devote to describing it would be able to pick nuances better. As such, please take any general statements I make about ethnic groups below with a large grain of salt: they are a third-hand summary of very incomplete data examined through possibly biased lenses.

How my thinking has evolved

Writing this post has led to some minor updates in my thinking. Here is a summary, that you can read without having to read the whole post.

  • As I had previously noted in “Why was immigration freer in 19th century USA?”, there were no restrictions on immigration till the late 19th century (the Page Act of 1875 being the first federal regulation, and the Chinese Exclusion Act was passed in 1882). Even then, the first restrictions applied only to Chinese immigration. But I now see that the sentiment to oppose and restrict migration existed far in advance of actual restrictions, and the reason that it took so long to restrict immigration was mostly the federal structure of governance combined with the poor connectivity of California with the rest of the United States.
  • This post also makes me more confident of observations I had made in my post on South-South migration and the natural state: despite the virulent and hostile response to Chinese immigration in California, migration remained freer and arguably closer to a state-of-nature than it does in the modern world.
  • My feelings on “keyhole solutions”, and in particular, on the question of their feasibility and stability, have evolved a bit. I am now more convinced that they are not a stable equilibrium that placates those favoring restrictions. One reason is that some keyhole solutions, particularly those involving taxes and tariffs, can hurt migrants so much that their subsequent impoverishment makes them look even worse on social indicators to the rest of the population (a point related to what co-blogger Nathan alluded to in his post the dark side of DRITI). Another is that keyhole solutions need to be extremely punitive (at risk of impoverishing migrants and making them look worse) to make a significant dent in migration trends, to the level that would satisfy those who seek restrictions. Keyhole solutions at an intermediate level can generate revenue for government and can address rationally calibrated concerns about immigration, but they can’t really solve the public’s general aversion to migration. Keyhole solutions might work better in quasi-democratic settings. In quasi-democratic settings, not every individual policy choice is debated. Rather, as long as the quasi-democratically elected leaders’ overall performance meets natives’ expectations, they buy into the policy package despite not liking parts of it. A country like Singapore might be an example.
  • Seeing the effects of migration isn’t guaranteed to drive one in favor of migration. In the case of events prior to the Chinese Exclusion Act, in fact, exposure to Chinese migrants led people to oppose it. California, which experienced the Chinese first, turned anti-migration first. Later, when the Chinese arrived in the Eastern cities, anti-Chinese sentiment also spread there. This does not mean that exposure to migrants always leads to anti-migration sentiment, nor does it mean that such anti-migration sentiment is factually grounded. Rather, we have to keep in mind existing narratives and biases that have been developed, in addition to the characteristics of migrants and natives, and results on sentiment towards migration could go in either direction. I don’t think nativist backlash is inevitable, but writing this post has led me to somewhat increase the importance I place on it as a force to reckon with.

First, they came for the Chinese

John’s post on tearing down Chesterton’s fence offers a good bird’s eye view of how immigration restrictions originated worldwide. While researching the subject, I noticed that in at least two other English-descended countries (Canada and Australia) the first significant immigration regulations appear to have been explicitly targeted at the Chinese, as I noted in an Open Borders Action Group post.

The situation in Australia closely paralleled the situation in California. In both cases, large numbers of Chinese moved to the area around 1850 in search of gold. In both cases, resistance to Chinese started off with native miners and labor unions of “natives” (i.e., whites, rather than the indigenous population), but gradually spread to the rest of society. Continue reading “How did we get here? Chinese Exclusion Act buildup (1848-1872)” »

Can deportation be a key crime-fighting strategy?

This post expands on some points I made in a post to the Open Borders Action Group on Facebook. There, I expressed puzzlement at the emphasis people pay to using deportation of criminal non-citizens (and in particular those in violation of authorized immigration status) as a crime-fighting tool. That Facebook post, and this blog post, will focus on the United States, though many of the points made are general.

To many people, the idea that there exist foreign-born non-citizens, particularly illegal immigrants, who have criminal records and still roam the streets safely is an indicator that United States immigration enforcement is dysfunctional and broken. Thus, Donald Trump’s remarks about illegal immigrants and crime struck a chord with a lot of his audience. And the killing of Kate Steinle by illegal immigrant and repeat felon Juan Francisco Lopez-Sanchez (who has admitted to firing the killing shots but claims they were accidental) was viewed as evidence of a breakdown of law enforcement. The killing has led to a proposal for a new law called “Kate’s Law” that has led to a lot of discussion, see for instance here and here.

This post has two main goals:

  1. Critiquing the high-level view that deportation can be a key strategy for reducing crime, particularly in the United States. I don’t claim that deportation can never reduce crime, just that it’s not a proven strategy to do so and most of the data suggest its effect is negligible in magnitude, ambiguous in sign, and swamped by the other side-effects.
  2. Emphasizing the importance on the open borders side of not carelessly conceding too much to restrictionists regarding how to deal with criminals, due to concerns about slippery slopes, ratchet effects, and logical inconsistency. I don’t claim that it’s inappropriate to make any exceptions for criminals, just that some exceptions should be made after careful consideration of all the angles rather than as a generous carte blanche of “do what you want with the criminals.”

A couple of notes here. Since this post is largely conceptual, I’m going to conflate a few fairly different notions. There is a notion of birthplace (native-born versus foreign-born), a notion of citizenship (citizen versus non-citizen), and a notion of authorization for status (legal versus illegal immigrant). Also, in the United States, many non-citizens are on non-immigrant visas, i.e., their visa does not specify immigrant intent, although many of them later transition to a long-term immigrant status. A detailed analysis of the empirics of crime patterns would need to avoid conflating these issues, but since the purpose of this post is rather different I’ll be a little careless.

Table of contents

1.1. How does the law treat people convicted of crimes based on immigration status?

The short answer here is that, as far as the law goes, non-citizens convicted of crimes are no more a hazard to public safety than citizens convicted of the same crimes. First off, anybody who is not a US citizen, lawful permanent resident, or conditional permanent resident, and who has been convicted of an aggravated felony, a category of crime that includes both violent and non-violent crimes (some of the latter being victimless crimes) can be subject to a speedy removal process called administrative removal for aggravated felons, which means that the person can be removed simply through some paperwork and without getting a hearing before an immigration judge (more here).

Even so, as immigration.procon.org notes, in the United States, those convicted of violent crimes need to first finish their prison terms, and after that they may be deported to their home country. And the way administrative removal works, they are deported straight out of prison, so they don’t spend a single day free in the streets of the United States: it’s prison in the US and then back to freedom in their home country.

In contrast, citizens are required to finish their sentence in prison, and after that they are free — to roam around in the United States. Even if the deportation of criminal non-citizens is a flawed process with many people failing to get deported, or returning to the United States, it’s at worst as bad (from the public safety perspective within the United States) as the treatment of criminal citizens.

For those convicted of non-violent crimes, the person may be deported before the completion of his or her sentence. Since re-entering the United States seems a task of comparable or greater hardness to having one’s prison term shortened or getting out on parole as a U.S. citizen, it’s again unclear that non-citizens pose a greater risk to public safety than citizens. Of course, there’s a big question mark regarding whether people convicted of non-violent crimes are threats to public safety to begin with.

The United States is also a participant in the International Prisoner Transfer Program. A prisoner who is a citizen of another participating country may transfer from a United States prison to a prison in the home country, subject to approval by both countries. However, such transfer must be initiated through a request by the prisoner, and therefore does not concern us here.

A bit more about re-entering after having been deported for crimes. The United States has a summary removal procedure called reinstatement of removal. What this says is that somebody who re-enters the United States without authorization after having previously been deported, removed, or excluded can be removed again without any kind of hearing or process, simply by “reinstating” the previous order. This in particular applies to those who were subject to administrative removal for aggravated felonies, or otherwise deported or excluded based on criminal history. Of course, after the person gets re-deported, the person may re-enter yet again, and get deported yet again, and so on. But two things to note: first, insofar as this isn’t enough to keep the streets of the United States safe, the problem can’t really be solved by more deportations, but by more imprisonment (which is sort of what Kate’s Law was pointing to). Second, the same public safety challenge applies to citizens as well, except that in the case of citizens, there isn’t even an option to deport people, however temporarily.

The upshot of all this is that, for a citizen and a non-citizen who commit the same crime, the law enforcement response in the case of the non-citizen is equally or more protective of public safety (in the US) compared to the response in the case of the citizen. If the law enforcement apparatus of the United States is lenient enough that criminal non-citizens can roam the streets freely and with impunity, then the same is even more true of criminal citizens.

An old post by Nathan, titled Answer to Vipul’s question about enforcement, has some interesting thoughts on deportation that are relevant to this discussion. Basically, Nathan argues that deportation is rarely the appropriate response, even if there are cases where it is not an unjust response:

I’m not absolutely wedded to the idea that deportation is never permissible. However, I can’t think of any situations where it would be appropriate. There are certainly crimes for which deportation would not be an excessive punishment; but for those crimes it’s usually either inapt or insufficient. A man guilty of rape or murder shouldn’t be deported, but imprisoned. Maybe there are scenarios where deportation would be the right thing to do, but I can’t think of them. I have some sympathy for the Nicene council which banished Arius the heresiarch for his views when they temporarily had the emperor on their side– they had suffered much at the hands of the pagans, and would yet suffer much at the hands of the Arians, and mere banishment is impressively moderate under the circumstances– but it’s not a precedent to imitate today, when the principle of free thought has been firmly established.

1.2. Immigrant crime rates appear lower than, and definitely aren’t significantly higher than, native crime rates

In the United States, one of the main concerns surrounding crime is that of crime by Hispanic illegal immigrants. We have a page on the subject that links to many literature reviews, and you should also read Alex Nowrasteh’s recent summary of the research and my co-blogger Joel’s take on immigrants and crime.

The broad consensus of these reviews appears to be that the foreign-born are considerably less likely to engage in crime than the native-born, and that this effect holds in aggregate, within each ethnicity, and for every combination of ethnicity and high school graduation status. Admittedly, the threat of deportation for crime is believed to be one contributing factor to the lower crime rate, but scholars who have studied the issue believe it to only be a partial explanation. The a priori selection for greater future orientation is believed to be another driving factor in the lower crime rates, and this applies to both legal and illegal immigration, and to both the status quo and substantially more liberal migration policy.

On the other hand, Hispanics have crime rates somewhere between non-Hispanic whites and blacks, which is a contributing factor to the perception of high Hispanic crime. But a lot of this higher Hispanic crime doesn’t come from foreign-born Hispanics.

In addition to comparing overall crime rates, we can also look at specific research on the effect of deportation on crime rates. Alex’s recent summary of the research includes a discussion of two relevant pieces of research:

The phased rollout of the Secure Communities (S-COMM) immigration enforcement program provided a natural experiment. A recent paper by Thomas J. Miles and Adam B. Cox used the phased rollout to see how S-COMM affected crime rates per county. If immigrants were disproportionately criminal, then S-COMM would decrease the crime rates. They found that S-COMM “led to no meaningful reduction in the FBI index crime rate” including violent crimes. Relying on similar data with different specifications, Treyger et al. found that S-COMM did not decrease crime rates nor did it lead to an increase in discriminatory policing that some critics were worried about. According to both reports, the population of immigrants is either not correlated, or negatively correlated, with crime rates.

As far as long-run immigration policy is concerned, one could plausibly argue that, even if the foreign-born have lower crime rates than the native-born, allowing more immigration can still raise crime if the children of these foreign-born have higher criminal propensity. This line of reasoning is partly supported by evidence, both with respect to Hispanics in the United States, and with respect to other immigrant groups historically; this phenomenon has been discussed under the name of second-generation crime.

For the purposes of deportation policy, however, this doesn’t apply, because we are specifically talking about deporting non-citizens for crimes they have committed, rather than crimes we expect their children might commit. And native-born people in the United States are United States citizens (by birthright citizenship) so there are no official grounds for deporting them.

1.3. In absolute terms, crime by immigrants is a small fraction of overall crime

In the United States, the foreign-born constitute about 13% of the population. Given that their crime rates are somewhat lower than those of the native-born, they account for less than 13% of the overall crime in the United States. Targeting crime by immigrants therefore won’t make a huge dent in the overall crime problem.

Concretely, what this means is that if you believe the criminal justice system is too lenient against the foreign-born, and that this creates a significant crime risk for natives, then you should be far more concerned about the criminal justice system being too lenient overall. For every case of a criminal foreign-born non-citizen individual who was either acquitted or released after serving a prison term and then committed more crimes, you’ll probably find many more native-born citizens who do the same thing. Perhaps the relevant remedy here is to make prison terms longer for particular types of offenses, or to better identify those who may be repeat offenders. What the optimal remedy is, and how to balance the rights of former criminals with public safety needs, is not the topic of this post. But it behooves those concerned about crime levels to consider the problem in generality rather than find solutions for a subset of the population that contributes little to the overall problem.

Note that this definitely won’t hold under open borders: under open borders, the foreign-born will be a much larger share of the population, and are likely to contribute a significant share of overall crime. The question of what crime rates would be under open borders is open. It is plausible that the currently observed phenomenon of lower immigrant crime rates than native crime rates will break down under open borders, though I still don’t expect a massive overall increase in crime rate. I considered these questions in an earlier post, and we’ll hopefully have more coverage of the issue.

1.4. Are there unique challenges associated with domestic criminal law enforcement when applied to non-citizens?

One plausible argument for choosing deportation as a crime-fighting strategy for non-citizens is that domestic criminal law enforcement becomes particularly hard for these people. Is that true?

Ironically, it is, but largely because of immigration enforcement. Law enforcement officers have difficulty carrying out their job in immigrant communities partly because of the distrust in these communities of law enforcement, given their fear of deportation and harassment. This leads to a dynamic where police officers tend to avoid the area, leaving the policing of these areas to those prone to corruption and bullying, further worsening the interaction between police and residents. A similar phenomenon been observed for many black communities in the United States, where the relevant form of enforcement is not immigration enforcement but other laws such as drug enforcement and Broken Windows policing.

It is partly for this reason that many “sanctuary cities” have adopted explicit policies surrounding non-enforcement of federal immigration laws. In other words, police are instructed to focus on the goal of fighting crime, leaving the enforcement of federal immigration law to federal authorities. In other words, to the extent that unique challenges apply to domestic law enforcement for non-citizens, they point in the direction of separating law enforcement from immigration enforcement.

A small note here about crime in border towns specifically as a result of illicit border activity. Organized crime plays an important role in facilitating drug smuggling and migrant smuggling, and the clashes between different organized crime groups, and between them and law enforcement agencies, can be responsible for higher-than-usual violence levels in border towns. That being said, as an empirical matter, it appears that overall crime rates are lower in border towns than in comparably sized interior towns. One of the lowest-crime areas, El Paso, is a border town in Texas whose low crime rate has even been called a miracle. The oft-noted point that border towns account for a disproportionate rate of federal crimes (which include crimes related to smuggling) does not impugn their overall safety record.

2.0. Is this worth making an issue of? Can’t the treatment of violent criminals be a small concession that makes the open borders position much more widely palatable?

Criminals are one of the few categories for which many open borders advocates are willing to make exceptions to their general view that borders should be open to all. Thus, for instance, Bryan Caplan writes:

Hey Mr. Caplan,Do you think Israel should open their borders?

Thanks, Jack

Yes. But I wouldn’t strongly object if they excluded people with violent criminal records or denied new-comers the vote. (Same goes for countries other than Israel, too).

It’s not clear to me if making a clear exclusion for criminals is philosophically consistent, but the argument for public safety being a valid concern in immigration law does carry some weight. In an earlier post in December 2012, I considered in detail the question of whether blanket denial of the right to migrate based on a criminal record is just (and also linked to many other people who had conceded an exception to open borders for violent criminals).

My purpose when I wrote that post, way back in 2012, was to simply explore the space of possibilities regarding how to trade off the right to migrate with public safety concerns in receiving countries. However, as I’ve thought more about this and looked more at the types of disputes and debates that arise in practice, a few other concerns have emerged in my mind.

2.1. Scope creep with criminality and immigration

The idea of keeping criminals out, and deporting those who commit crimes, is subject to significant scope creep. Once we start seeing immigration policy as a way to select and shape a better society, why stop at merely excluding violent criminals? Why not also aim to exclude people who have a 50%+ probability of being net fiscal drains, or who are more likely than not to vote the wrong way? And even within the realm of crime, why stop merely at those crimes that actually merit prison terms? Why not expand the scope to everything ranging from playing loud music to running a gambling house to downloading music in violation of copyright law?

In fact, this particular slippery slope is not merely hypothetical. It’s already happened. As already mentioned, United States immigration law can exclude and deport people for aggravated felonies, many of which are neither aggravated nor felonies. The Immigration Policy Center, an immigrant rights and legal advocacy group, has a good overview. Here’s how the IPC’s overview puts it:

As initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. Congress has since expanded the definition of “aggravated felony” on numerous occasions, but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. Even offenses that sound serious, such as “sexual abuse of a minor,” can encompass conduct that some states classify as misdemeanors or do not criminalize at all, such as consensual intercourse between a 17-year-old and a 16-year-old.

While aggravated felonies are considered serious enough to allow for administrative removal for those who are not US citizens or permanent residents, there are also other, lesser, “crimes” that can be used to both exclude and deport people, albeit with more of a semblance of due process (i.e., they cannot be used as a basis for administrative removal, but they can still be used as evidence against the alien in a hearing before an immigration judge). Crimes that can be used to exclude and deport people are called crimes involving moral turpitude (aka crimes of moral turpitude, and abbreviated as CMT). This category includes aggravated felonies but also includes other crimes. NOLO has a good review.

The United States has also historically passed many laws restricting immigration based on one’s speech and political views, including the Immigration Act of 1903 (also known as the Anarchist Exclusion Act) and the Alien and Sedition Acts of 1798. This, despite the fact that freedom of speech is protected by the First Amendment to the United States Constitution. Once we grant that the public safety interest justifies special punishments for non-citizens (over and above the usual fines and prison terms), keeping the domain of application restricted to crime would be hard.

My co-blogger John Lee has done a great post linking to Pulitzer Prize-winning journalist Linda Greenhouse’s discussion of how migrants could be deported for minor offenses (also read John’s follow-up post discussing the resolution of one of the discussed cases).

2.2. Who has responsibility for shaping a criminal?

Personally, I reject the notion that state or national governments are morally responsible for the criminal actions of particular individuals who were born there or raised there. There could be exceptions where state propaganda or state action facilitates criminal activity, but state complicity in private crime needs to be positively established — not merely assumed. Therefore, I don’t believe, for instance, that just because a Chinese citizen came to the United States and committed crimes, the Chinese government, the Chinese nation, or the Chinese people as a whole are “responsible” for that crime and “deserve” to have the person back (this argument is a variant of the state responsibility thesis that has been cited by some philosophers as an argument against open borders).

Even if you believed in high-level national responsibility for the criminal actions of individuals, it’s not clear what nation gets the blame for immigrant crime. Is it the nation the person holds official citizenship of? Is it the nation the person grew up in? Is it the nation where the person first started on the path to crime? In the United States, DREAMers are likely to have had many of their formative experiences in the United States. Thus, we could reasonably argue in the case of DREAMers who commit crimes, any national responsibility for the crimes falls on the United States, rather than their birthplace. Even for those who migrate as adults and then commit crimes, their path of crime may well have begun in the United States. At best, the logic of responsibility can be used to deport criminals who committed their first deportation-worthy crime in their country of origin, in the same way as it could be used to deny initial entry.

2.3. Criminals can commit crimes elsewhere too

From a universalist perspective, deporting those with criminal proclivities, whom we believe could be repeat offenders, doesn’t really solve the problem: the person could commit crimes elsewhere too. There could be some cases where deportation might reduce criminality, for instance, deporting members of a gang could break up the criminal activity of the gang, and individual deported gang members may be unlikely to continue to engage in the relevant crimes (on the other hand, they may start new gangs). It’s unclear that the countries the criminals are being deported to would be more capable of dealing with the criminal activity — they may well be less able to handle it. Perhaps a cost-benefit analysis would still show that deportation reduces overall expected global crime, but such a claim needs careful argumentation.

Of course, citizenists and territorialists in any country would consider the reduction of crime within the country (and/or directed at citizens of the country) to be more important than reducing global crime. So it’s understandable that they accept deportation as a possible crime reduction strategy. But those of a more universalist bent should push back against this reasoning.

Co-blogger Joel pointed me to an article in The Atlantic that made the interesting claim that deporting gang members from the U.S. had actually increased organized criminal actiity both in the U.S. and in the countries the people were deported to. Here’s a key excerpt from the article:

MS-13 formed in the Rampart area of Los Angeles in 1988 or 1989. A civil war in El Salvador had displaced a fifth of that country’s population, and a small number of the roughly 300,000 Salvadorans living in L.A. banded together to form the gang. But MS-13 didn’t really take off until several years later, in El Salvador, after the U.S. adopted a get-tough policy on crime and immigration and began deporting first thousands, and then tens of thousands, of Central Americans each year, including many gang members.

Introduced into war-ravaged El Salvador, the gang spread quickly among demobilized soldiers and a younger generation accustomed to violence. Many deportees who had been only loosely affiliated with MS-13 in the U.S. became hard-core members after being stranded in a country they did not know, with only other gang members to rely on. As the gang proliferated and El Salvador tried to crack down on it, some deportees began finding their way back into the U.S.—in many cases bringing other, newly recruited gangsters with them. Deportation, incubation, and return: it’s a cycle we’ve been caught in ever since.

Today, MS-13 has perhaps 6,000 to 10,000 members in the United States. It has grown moderately in recent years and now has a presence in 43 states (up from 32 in 2003 and 15 in 1996). Most members of the gang are foreign-born. Since 2005, ICE has arrested about 2,000 of them; 13 percent have been deported before.

Salvadoran police report that 90 percent of deported gang members return to the U.S. After several spins through the deportation-and-return cycle, MS-13 members now control many of the “coyote” services that bring aliens up from Central America. Deportation—a free trip south—can be quite profitable for those gang members who bring others back with them upon their return.

While I don’t know enoughabout the specifics to endorse the claim of the article, this is the sort of ripple effect that people concerned about the long-run effects on global crime would have to account for. These kinds of effects are hard to predict, but a reasonable rule of thumb is that they’re likely to be less positive overall than the naive view of deportation as “taking criminals off the streets” suggests.

3. Conclusion

Much of the current discussion on immigration and crime comes from two angles: the use of anecdotes to justify strong immigration restriction and deportation policies against non-citizens accused of crimes, and the use of empirical data to study the relationship between migration status and crime. In addition, the defense of the civil and procedural rights of non-citizens accused of crimes is also a perspective that gets some airing. My post looks at the issue from a few slightly different angles. It focuses on whether deportation can or should be an important part of a crime-fighting strategy, and highlights some other relevant considerations about moral responsibility and effects that often get sidelined by the tug-of-war between the citizenist and due process-defending perspectives.

In addition to the many inline links in the post, the following might be of interest to readers:

The photograph featured at the top of this post depicts police personnel at a 2006 march for immigrant rights in Los Angeles, California. Photograph by Jonathan McIntosh and licensed under the Creative Commons Attribution licence.

Free Havens for Refugees (mostly by Pieter Cleppe)

Pieter Cleppe, head of the Brussels office of the think tank Open Europe, has written a piece advocating something akin to my idea of passport-free charter cities. (Also see my thoughts on charter city constitutions here and here,  my post about the abortive charter city experiment in Honduras, and my post “Make More Singapores!”) Cleppe advocates “free havens” in response to the recent tragedies in the Mediterranean. The rest of this post is by Cleppe (see the original piece here, it is reprinted with his permission), except a few comments of mine at the end:

Free havens as a solution to the refugee crisis

The latest tragedies in the Mediterranean once again highlight that migration is without any doubt one of the challenging issues of our time. Few dispute that it would be a bad idea to close borders completely. On the other hand, few support opening borders completely, recognising the obvious downsides to this.

The debate mostly focuses on the type and number of immigrants allowed into wealthier societies. There is very little debate about what to do with those wanting to leave their country when even the most generous quotas would have been filled.

Since 2011, 3 million people have already fled Syria, and 6.5 million are internally displaced. The EU hasn’t accepted more than 200.000 of them, while it faces ever increasing numbers of refugees, from Syria and other places, attempting to enter illegally. Even if Western countries drastically increased their willingness to welcome refugees, this would in no way serve demand. Nearly everyone agrees refugees should have the right to flee war-torn countries, but politically, there is no willingness to welcome everyone, whether one agrees with that or not.

The solution proposed below is a humble attempt to launch this debate and provide a more sustainable solution than the ones offered in the past.

One way to deal with this challenge has been to ignore it and to let people sort it out themselves. The result has been that the most vulnerable were delivered to human traffickers, at best reaching the Western world as an illegal immigrant, at worst finding the Mediterranean Sea as their graveyard.

A better solution has been to provide shelter for them in refugee camps. This clearly is an honourable attempt to minimise suffering. There are currently estimated to be up to 50 million refugees. The United Nations High Commission on Refugees offers them protection and life-saving supplies at refugee camps in more than 125 countries. Often, these camps aren’t temporary and sometimes conditions are horrendous. Often, refugees are also banned from becoming economically active. Thailand, for example, banned Burmese refugees living on the Thai-Burmese border from leaving their camps in 2014.

One of the 120.000 Burmese refugees in Thailand describes how living in such a camp, with its travel and work restrictions, while being forced to be nearly completely dependent on outside help for food, shelter, protection and other basic needs, have adverse psychological and social effects on the refugees:

“Living in the camp is similar to living in prison because I can’t go outside or make my own decision. I can commute only in the camp. The camp is surrounded by barbed wire. If we go outside of the camp, Thai police will arrest us. In the long run, it affects not only my physical but also my mental health.” (Christine, 22, refugee, who spoke with Burma Link in Mae La refugee camp in May 2014)

Lebanon’s 470,000 Palestinian refugees, of whom over 50 percent live in 12 refugee camps who’re controlled by competing Palestinian armed groups, face restrictions to practice about 30 different professions. Whatever solutions one has for the Israeli–Palestinian conflict, surely condemning generations of Palestinian refugees to this fate can’t be one of them.

A preferable solution could be to create “Free havens”: a refugee zone but then one with stable rule of law, protection and opportunities for economic investment, where refugees can actually build up a life and aren’t condemned to wasting their precious time.

This has been tried, but only very occasionally, although with extraordinary success. Most prominently in the last century, it was applied in Hong Kong, effectively a refugee zone, governed by the British rule of law, welcoming millions of Chinese wanting to fled war, totalitarian rule and turmoil in mainland China. Refugee camps at best offer refugees safety, but Hong Kong offered those Chinese refugees something which even the best refugee camps can’t offer: the opportunity to develop yourself.

Refugees, broadly defined as people fleeing from both war and economy misery, aren’t asking for a lot. They want a better life. Not necessarily a whole of a lot better. Only slightly better, if nothing else is possible. Refugees don’t only want shelter. They want to be able to develop themselves. Why would they need to wait before their country returns to the better or before wealthier countries decide they’re willing to welcome them?

A tiny percentage of land in the world is urbanized, perhaps around three percent. Would it really be so impossible to identify a place where no-one lives and welcome anyone willing to go there? Would it really be impossible to identify a place where really no-one would be bothered? If a city the size of Las Vegas can be successfully developed in the middle of a desert, there shouldn’t even be any requirements in terms of average temperature or access to the sea, although a climate like California would clearly be preferred.

It’s highly likely that such a place would be part of the territory of a State. But why would this State not allow “Free havens” to be hosted? Perhaps in some remote part of it, not to bother any of its citizens with any possible burden, especially if it would be financially compensated for it, for example by charity organisations wanting to offer refugees a better perspective or by companies investing in these Free havens, which could attract a lot of skilled individuals?

Why would companies not be interested to invest in these Free havens, just as they invest in the poorest parts of the world already, which often would not offer the same standards of justice and safety that such a Free haven would offer, given that these Free havens could be administrated by officials from countries with a certain level of rule of law?

Why would such a Free haven offer standards of justice and safety that are sufficiently high to make such a project succeed, so people would actually voluntarily want to go there, and companies would actually want to invest, thereby freeing up the resources needed to compensate the host State to actually allow such a Free haven to exist on its territory?

The answer is simple: For this project to be a success, it needs to become more safe than the most unsafe place in the world and its investment climate should beat the most horrible place on earth to do business, to attract those fellow human beings who actually have to survive there at the moment. Surely that shouldn’t be too much of a challenge. Would it really be so hard to do better than North Korea, Syria or Congo?

This project, which could be driven by the private sector, states, supranational organisations or various actors working together, doesn’t exclude everything that’s already happening: opening borders for trade, trying to develop poor countries, attempting to pacify violent conflicts, providing emergency aid to the most needed, allow more migrants to enter wealthy countries or develop refugee camps when no other option is there. This project simply offers a solution for immigrants who are not or insufficiently helped by what is already been done: the vast majority of them. If it is so simple, why not just take action?

So what is this again?

Let’s create “Free havens”: refugee zones but then with rule of law, protection and opportunities for economic investment, where refugees can actually build up a life and aren’t condemned to wasting their precious time

Which countries would allow such zones on their territory?

That’s a challenge the EU is currently facing, at least if it continue with its idea to establish immigrant-processing centres outside the EU. These offshore centres may be based in key transit countries such as Niger, Egypt, Turkey or Lebanon. France, Germany and Malta would reportedly be keen on the idea. When seeking refuge there, asylum seekers would get the chance to indicate in which EU country they’d like to apply for asylum, and at one point there may even be a system of forced “burden sharing”, which is however unlikely, given that national politicians in the EU rightly think such sensitive policies should be decided at the national level.

To convince them, Niger, Egypt, Turkey, Lebanon or maybe even Morrocco would logically need to be compensated for hosting such centres. Given the huge amount of funds available in national and European aid budgets, reaching a compromise shouldn’t be impossible.

The only element the EU Commission would need to change in its current plan, is to combine its welcoming of refugees offshore with a rule of law – mission. The EU has some experience with “rule of law”-missions. Part of its EULEX-mission in Kosovo was to administer justice in the most delicate sectors over there. It must be said that there have been major problems with the implementation, but at least Kosovo has known some kind of stability. Either way, the main difference between Free havens and the mission in Kosovo would be that anyone moving to such a Free haven would do so voluntarily.

Has something like this ever been tried?

As I made clear earlier: yes, indeed. Hong Kong effectively served as such a Free haven to Chinese refugees. It probably also served to convince mainland-China to choose the path of international trade.

Why would companies want to invest there?

Fair question. The likes of Ikea or Coca Cola would certainly need to consider this carefully, but a safe investment zone governed by officials from countries with a relatively high level of rule of law surely should be able to compete with countries where a revolution or social unrest is always only around the corner?

How much would this cost?

The Belgian police and justice system costs around 3 billion euro per year, to serve 11 million people. With 10 billion per year, which is not even 10 percent of the EU’s 130 billion euro budget, 20 million refugees could already be welcomed, as 7 billion euro would be reserved for basic infrastructure. Also co-financing from investors could be attracted. Even if only 1 million out of 50 million refugees could be welcomed at first, it would be a massive step forward.

Anyone dealing with the EU budget knows massive spending improvements could be made. More than 270 billion euros are still being sent to agricultural landowners, including the Queen of England, between 2014 and 2010. Given how the EU’s agricultural policies have been hurting developing countries for decades, it wouldn’t be such a bad target to find funds.

Is it politically feasible?

Former UK Prime Minister Tony Blair once proposed off-shore asylum centres, the European Commission is keen them, several member states are open to something like this. The whole idea really comes down to accepting two realities: one reality is that many people currently want to flee their country. Another reality is that a large majority of the European population, rightly or wrongly, is only willing to accept a tiny part of all the refugees in the world. So welcoming them in a safe place somewhere else is not more than obvious solution.

What if it goes wrong?

Amnesty International has criticized the European Commission’s suggestion to externalize refugee policy, warning that there may be “human rights violations” in many countries outside of the EU. Fair point, but this is being addressed when EU countries themselves would run these zones. What if EU countries would still mismanage the whole thing, and these Free havens wouldn’t be so nice at all? Even in that case, given that every refugee would obviously only go there voluntarily, people would only come if the welcoming zone would be nicer than refugee camps or the places from which they are fleeing. Surely, it can’t be hard to beat these standards?

Won’t it lead to a brain drain?

In the event that these Free havens turn out to be a massive success and start attracting not only desperate refugees but also people that are already relatively well off, we would indeed face this discussion. I won’t go into detail here, but there are also upsides to intelligent people moving to work in wealthier countries, given the fact that they can send more money back home to help their families than if they had stayed.

Isn’t this “apartheid”?

When you accept that migration should be limited, you accept a certain form of “apartheid” already. To support unlimited migration is a fair position to hold, but has very little support. Why then not try to improve the fate of those who’re not welcome in wealthier countries?

Pieter Cleppe

There’s no explicit open borders advocacy here. (Open borders is a “fair position to hold, but has very little support.”) But if a global archipelago of passport-free charter cities were established, the right to emigrate would be effectively realized, even if the more general right to migrate were not. I’m all for it. And this is a good example of how human rights can be the thin end of the wedge for open borders, as religious freedom was once the thin end of the wedge, first for freedom of speech, expression, and conscience, then for democracy. If we take seriously the responsibility of the international community not to drown desperate people or trap them in places where their lives are in danger, we will be on a path that, if followed devoutly enough, leads quite far in the direction of open borders. It would be, among other things a fitting Western repentance for the blood of the Jews of the MS St. Louis.

Related reading

In addition to the links included by Smith in the leading para, the following might be of interest to readers:

Pure open borders and keyhole solutions: is the distinction semantically valid?

This post builds on my preceding post not-quite-open borders: keyhole solutions, complementary policies, and blanket restrictions. Although it’s not necessary to read that post first, doing so would provide better context for understanding this post.

The keyhole solutions page on our site dates back to the site’s inception, and discussion and comparison of different keyhole solutions has been an important part of our site and blog since then. The basic idea behind keyhole solutions: for any identifiable problem, try to find a solution that addresses the problem as specifically and narrowly as possible, while not forbidding or restricting other actions. For instance, if the concern is that immigrants’ use of welfare benefits will lead to fiscal bankruptcy, placing and enforcing stronger restrictions on immigrant welfare access would be the keyhole solution that allows migration, preserves the existing welfare state for existing users, and allegedly solves the alleged problem. More at the keyhole solutions page.

My co-blogger Nathan Smith had devised his favorite keyhole solution, Don’t Restrict Immigration, Tax It (DRITI), long before Open Borders: The Case existed.

Does the site advocate keyhole solutions? Not officially, but it’s clear that we give them serious consideration as one of the alternatives to pure open borders as a way of liberalizing migration. In one of the first systematic explorations of the subject, I noted that there are six possible rank-order preferences one might have between “pure” open borders, open borders with keyhole solutions, and the closed borders-ish status quo. For any keyhole solution A, the three options being ranked are:

  1. Open borders without keyhole solution A (that one might loosely call “pure” open borders).
  2. Open borders with keyhole solution A.
  3. Closed borders and/or status quo.

This loose trichotomy (pure open borders, open borders with keyhole solutions, and closed borders) has been loosely endorsed by other bloggers on the site, such as Samuel Wilson in his discussion of moral intuitions and the euvoluntary principle in connection with open borders, myself in my discussion of the permissibility, desirability, feasibility, and stability of keyhole solutions, and Paul Crider in his critique of keyhole solutions. Paul offers a great summary of keyhole solutions before taking them down (which, in the above jargon, means endorsing (1) > (2) > (3) over (2) > (1) > (3)).

Implicit in this discussion is the view that some approaches to a more liberal migration policy are identifiable as (closer to) pure open borders whereas others are identifiable as keyhole regimes. Broadly, this is true, which is why my post, and Paul’s, make eminent sense. And I think that keyhole solutions are an important idea in the lexicon of people thinking about realistic regimes with substantially more liberal migration policies than exist today. However, I think that the distinction between pure open borders regimes and keyhole regimes is quite fuzzy. But first, a little detour.

Keyhole solutions, complementary policies, and blanket restriction

As I discuss at more length in my post not-quite-open borders: keyhole solutions, complementary policies, and blanket restrictions, there are actually three slightly different types of policy adjustments and compromises that often get put in the broad bucket of keyhole solutions:

  1. The first addresses the perceived problem at the intersection of migration status and welfare eligibility. Prima facie, this targets the problem most narrowly and is most deserving of the “keyhole solution” label. I’ll call this type of solution a true keyhole solution.
  2. The second addresses the problem but focuses on the broader issue of welfare use and welfare eligibility. Rather than focusing on migrants per se, it addresses a potential problem that is made more severe due to migration flow, but it addresses it in a way that does not per se discriminate on the basis of migration status. I’ll call this type of solution a complementary policy change.
  3. The third seeks to preserve the status quo as far as possible with respect to domestic policy, and addresses the potentially dangerous interaction with migration by forbidding the forms of migration perceived as risky. I’ll call this type of solution a blanket restriction.

Ceteris is not paribus: some mathematical background

(This section doesn’t strictly require, but can benefit from, broad familiarity with the concept of derivatives and multivariable calculus).

In economics and the social sciences, it is customary to consider questions of the form “ceteris paribus, how does a change in variable x affect variable u?” Here, ceteris paribus is understood to mean “other variables being left unchanged.” The concept of partial derivative is a particular encapsulation of this idea of trying to isolate the effect of one variable on another while holding the remaining variables constant.

Back when I taught multivariable calculus to economics majors, I used to emphasize the important fact that the concept of ceteris paribus is ill-defined, because the choice of “other variables” that you keep constant heavily depends on how you coordinatize the system (you can read more here, and also watch the embedded videos). The “real-world” example discussed on the page is quoted below (and isn’t directly related to migration, but will help illustrate the general line of argument):

Suppose a country’s military spending is determined by just two factors: its per capita GDP and its population. We want to study the relationship between per capita GDP and military spending.

There are two sensible ways (among many) of trying to do this:

  • Study the relationship between per capita GDP and military spending holding population constant. In other words, take the partial derivative with respect to per capita GDP holding population constant. In this case, we are thinking of military spending as a function of the two variables: per capita GDP, and population.
  • Study the relationship between per capita GDP and military spending holding total GDP constant. Prima facie, this is similar to the previous one, because total GDP is just a product of per capita GDP and population. However, what we have done effectively is consider a partial derivative of the function in a new coordinate system, where the two variables of interest are: per capita GDP, and (per capita GDP) times (population).

The point is that the partial derivatives will have different expressions depending on what we hold constant.

Ceteris is not paribus: the problem of distinguishing between “pure” open borders and a compromised solution

In the simplest telling, pure open borders refers to a situation where we “just open the borders” and keep all other policies essentially unchanged. Keyhole solutions (viewed broadly) involve opening the borders but making some changes to policies. These changes could be true keyhole solutions (operating at the intersection of migration and the relevant domestic policy), complementary policy changes (such as changes to general rules for welfare eligibility or changes to the minimum wage), or blanket restrictions on some types of migration.

However, this raises the question: what are those other things that we hold constant? If nothing else, open borders will lead to changes in the size of the population in many countries, and sometimes quite significant changes. What would it mean, for instance, to say that we open the borders without changing any policies or rules related to the welfare state? There are many possible interpretations:

  • The rules for welfare eligibility, and the size of welfare benefits per capita for recipient, remains the same.
  • The total size of the welfare state (i.e., the amount of money allocated to pay for welfare benefits) stays the same, or stays the same relative to the population, or stays the same relative to the size of the economy.
  • The total number of welfare recipients remains the same, or remains the same relative to the population size.

These are all different senses of “staying the same.” In most contexts, these differences don’t matter much (or at least, don’t appear to matter much) because the overall global changes to the relevant quantities aren’t very large. However, if open borders is going to be a big deal, then it likely won’t be possible to hold all of these constant or even close to constant. Once we concede that not all aspects of existing policy regimes can be held constant, the conceptual distinction between pure open borders and keyhole solutions becomes more tenuous. Both “pure open borders” and “keyhole solution”-type policies offer plausible descriptions of a world with more liberal migration that nonetheless preserve or inherit some features from the status quo. Calling one set of policies “pure open borders” is mostly about exercising a value judgment regarding which features are central to and represent the essence of the system.

Similarly, consider minimum wage policies (the minimum wage is a topic that has been discussed extensively in the Open Borders Action Group, and we intend to do blog posts about it). Again, there are many different ways in which we can consider minimum wage levels:

  1. We can think of them as associated with specific currency units, not adjusted for inflation. So a minimum wage of $8/hour remains a minimum wage of $8/hour even if the dollar depreciates significantly in value.
  2. We can think of a minimum wage in terms of the associated consumption basket, i.e., indexed for cost of living.
  3. We can set the minimum wage in relation to median wage levels.
  4. We can set a minimum wage threshold based on the maximum amount of unemployment we are willing to tolerate.

There are arguably many different ways of thinking about the appropriate level of a minimum wage (and whether there should be a minimum wage at all). Our choice of preferred rationale for justifying the status quo will determine what sort of minimum wage regime we’d like to see in an open borders world.

For those who simply think of the minimum wage in terms of a currency unit, little head-scratching needs to be done. For those who associate minimum wages with consumption baskets, median wages, or tolerable levels of unemployment, however, the nature of changes under open borders could be quite different. Migration can change the cost of living structure by making some services cheaper and others more expensive. Thus, cost-of-living calculations could change quite a bit. Median wage levels could change both because the wages of existing residents change and because of compositional effects arising from inclusion of the new migrants. Finally, given differences in the skill level of migrants compared to natives, the minimum wage would probably need to be reduced to maintain a similar unemployment rate to the status quo.

With all that said …

I don’t want to exaggerate how dramatic open borders would be. I think a fairly liberal migration regime is fairly consistent with the nation-state roughly as we know it, and while it might push the world to a “no borders” condition over the long run, that won’t happen in short order. But a lot of the specifics will change, in ways that are somewhat but not entirely predictable, and in some cases not pretty. Thus, the concept of “pure” open borders (“just open the borders and don’t touch anything else”) is not as clear-cut as we might naively presuppose. At the end of the day, a policy implementation has to consider many other existing policies in conjunction with changes to migration levels.

With that said, it is still possible to advocate purely for open borders, without advocating for the concept of pure open borders. When I say “advocate purely for open borders” I mean advocate for change in the direction of open borders, without being picky about the specifics, and being flexible about the selection of specifics based on more detailed context-specific empirical analysis. This might mean advocating for changes that could go in directions you consider more “pure” versions of open borders, or advocating in directions you consider more like keyhole solutions or open borders with complementary policies.

Related reading

In addition to inline links within the blog post, check out:

Are restrictive guest worker programs in employers’ interests?

This post revisits a subject I last wrote about in December 2012. In that post, I discussed Daniel Costa’s critique of guest worker programs as they exist now, and noted how moves in the direction of more liberal guest worker programs of the sort considered on this site would be less susceptible to those problems than the status quo. Discussions of the (real or alleged) worker exploitation found in guest worker programs are often used as justification for ending the programs and moving instead to a more closed border regime.

Below are some examples of critiques of guest worker programs:

The critiques span a range of perspectives, and need to be addressed in terms of their explicit claims, philosophical assumptions, and tacit connotations. For what it’s worth, I think many of the factual claims are correct, but some of the connotations are mistaken. In this post, I concentrate on a specific claim, usually subtextual, but occasionally explicit, namely:

Guest worker programs where workers are tied to a specific employer and cannot easily move to other employers without losing their legal status in the country:

  1. allow employers to exploit workers in ways they wouldn’t if the workers were free to move around,
  2. benefit employers at the expense of both migrant workers and the native workers who do similar jobs, and
  3. exist in their current form (as opposed to a more liberal form) precisely because they allow employers to exploit workers.

(for a related discussion, and some articulation of these points, see here).

I think (1) is true but the emphasis is off, (2) is true only in certain circumstances, and (3) is probably not true. Continue reading “Are restrictive guest worker programs in employers’ interests?” »