Modern Fugitive Laws

-- By KrishnaSutaria - 23 March 2010

I. History Repeating Itself

Take a look this. Such posters served as warnings to black populations in Massachusetts following the passage of the Fugitive Slave Act in 1850. The 1850 act allowed for the recapture, detention and repatriation of runaway slaves hiding in free territories. Although the law was supposed to apply to fugitive slaves, it wrought havoc on all categories of blacks, including runaways, but also free blacks and children of former slaves. It was a federal law that forced the cooperation of state and local authorities in the North with the pro-slavery South. By compelling the use of local resources to perpetuate the slavery regime, it angered even the most moderate of abolitionists, leading to the Civil War.

"Moderate abolitionism," though it's a phrase that could be used in a study of abolitionist ideologies, doesn't make much sense when used to describe the span of social opinion overall. "Abolitionists," those people committed to the direct and entire abolition of slavery and equality for the freedmen, hostile to the US Constitution because of its compromise with the "Slave Power," were extreme persons in 1850, though they may have comprised the plurality of opinion in some parts of New England. You might have said that recaption and rendition were part of the process that radicalized moderate anti-slavery opinion.

The idea, however, that the radicalizing effect of the Second Fugitive Slave Act lay in forcing the cooperation of local authorities is ahistorical. The First Fugitive Slave Act, of 1793, required more local cooperation than the Second, which created federal commissioners to hear and determine issues of status and rendition. The creation of federal commissioners resulted specifically from the refusal of state officials to perform their roles. The statute's effect was to create a biased federal administrative judiciary (which was paid more for rendering a slave than for finding that the person sought was not a fugitive from servitude) in order to avoid reliance on increasingly antislavery judges.

A. The Fugitives of Today

Something eerily similar is happening today. Our fugitives are immigrants, both documented and undocumented, and they are being arrested, imprisoned and deported in ever-increasing numbers. The 298,401 people involuntarily deported in 2009 included undocumented immigrants, political asylees whose petitions were denied and documented immigrants with criminal records. Such completely different categories of immigrants are all considered "fugitives" for detention and deportation purposes and they are treated with utmost disrespect by the authorities.

An ugly neologism, created after 1950, when the world had apparently lost all knowledge of Greek. Why use it?

B. A Not So Slight Difference

The story of racism and mass oppression of insular minorities is the same, except for one major difference - today’s local authorities volunteer to collude with the "fugitive hunters". One specific provision of the current immigration law has made this possible and indeed encourage it. Section 287(g) of Immigration and Nationality Act (INA), added in 1996, has been used to unjustly detain and deport both documented and undocumented immigrants using local law enforcement skills, resources, and personnel.

II. What the Law Is

Section 287(g) facilitates the Immigration and Customs Enforcement Agency, or ICE’s job of capturing “dangerous illegal aliens”. Local and state law enforcement agencies sign Memoranda of agreement (MOAs) with the Department of Homeland Security (DHS), permitting ICE officers to train them to identify and arrest immigrant fugitives. ICE provides some basic IT, but for the most part, local policemen use their own resources to arrest, identify and detain undocumented aliens.

In ICE’s own words, “The 287(g) program has emerged as one of the agency’s most successful and popular partnership initiatives as more state and local leaders have come to understand how a shared approach to immigration enforcement can benefit their communities”. As of December 2009, 67 individual MOAs have been signed with local and state police departments.

III. What the Law Does

A. An Abusive Relationship

287(g) has come under heavy fire for its abuses. Law enforcement agencies have been using it to racially profile and target undesired immigrants. “Suspects” are picked up by trained local agents for minor violations like broken tail-lights in immigrant neighborhoods. The documentation status of those who are arrested is immediately checked in the DHS database and possible offenders are immediately put on the path to deportation.

In conjunction with other ICE programs like the Fugitive Operations Team, the success rate of local-federal collusion is impressive. In 2003, ICE forcibly deported 186,151 immigrants from America. In 2009, the number was 298,401. ICE shares with pride that its “success rate” in protecting the nation from illegal aliens is boosted by local support.

Who are these dangerous, illegal-alien-criminal-fugitives ICE is protecting us from? Who is being detained and deported as a consequence of the law?

B. Pauline, Fugitive Class of ’08

Pauline Dzie did not even know that she was a fugitive until her door was being broken down by twelve fully armed ICE officers. I heard her speak at Columbia earlier this month. Unable to read, write or speak a word of English at the time, Pauline moved here from Cameroon twenty years ago. She married a US citizen who filed papers for her, but they divorced, and she didn’t think to follow up on her immigration status. The papers had been living a life of their own in the immigration system - unbeknownst to her, she was sent a deportation notice ten years ago after failing to appear at her hearings.

In September 2008, ICE rudely informed Pauline and her 8, 14 and 18 year old children of her immigration status during a raid at three in the morning. Dragged off in handcuffs from her home, she spent four and half months in detention pending deportation. She endured despicable conditions while worrying about her citizen children who were left to fend for themselves during her imprisonment. Released in 2009 because of her embassy’s tardiness in processing her passport, she reports to DHS monthly, and every time she walks into the building, she fears she will never see her children again.

C. Juana, Fugitive Class of ’09

The story of then nine-months-pregnant Juana Villegas is another good example of our modern fugitive laws. She was arrested and detained by a 287(g) deputized officer in Tennessee for failing to signal while changing lanes. She ended up giving birth shackled to a jail hospital bed and endured a horrific abuses by local and immigration authorities both before and after her child's birth.

In its public advertising campaign, ICE boasts about "ensuring safe and humane conditions for those confined while minimizing the risk posed to the Nation". It is hard to see how "fugitives"; like Pauline or Juana are threats to anyone.

IV. Conclusion

If the mistreatment of fugitives has historical precedents, the remedy might too. Short of comprehensive immigration reform or invalidation of the 287(g) program, there may be smaller scale solutions. In response to the gross abuses of the Fugitive Slave Act of 1850, many states passed new personal liberty laws, which, inter alia, impeded the federal government by refusing the use of their resources.

Hardly an example one would want to have to emulate, in view of the deterioration of the Union. From a historical point of view, you should have pointed out, this was merely an intensification of the confrontation between antislavery state governments and the imperial federation that led to state anti-kidnapping enforcement against recaption, thus to Prigg v. Pennsylvania, to resistance to the First Fugitive Act, to the Compromise of 1850, and (after the personal liberty laws began to produce violent resistance to federal rendition) to Ableman v. Booth and eventually the dissolution of the Union.

In an ideal world, state legislatures would pass similar personal freedom laws and local agencies would refuse to help ICE. It would also help if more Americans started organizing and making modern versions of the poster you saw earlier.

But of course, that's not what's going to happen. Cities in which immigrants and the children of immigrants have been the bones of the political system for generations will continue to refuse assistance and to render as much equality of service to undocumented persons as they can. In white suburbs, along the southern border, and in communities heavily suffering from unemployment in hard economic times, "illegal aliens" are the consensus target of white supremacy and other nativisms, pro-worker populism, and the rage of taxpayers paying high property taxes on underwater properties, who believe that undocumented persons expensively overuse public services without paying for them. Too many votes exist in those places for the Republican Party to ignore, and the "national security" hysteria it continues to employ as a weapon against the left and the Democratic Party, and in support of law enforcement and other uses of public force, too closely predisposes it towards a para-military view of immigration matters for there to emerge in the near- or medium-term any workable legislative solutions. George W Bush showed the impossibility of undertaking any significant movement when he was the Republican President with a Republican Congress; Obama has indicated that he will now try, in the aftermath of his current legislative victory, but he will not be able to hold the Democratic Congressional party together on this as he did on health care, and he will get no Republican support.

Pressure to moderate the system will be exerted by one branch of elite opinion (like the owners of the New York Times, or the members of National Public Radio), while fulmination against "illegals" will occur in the opinion-control systems of the right, meant to play to a substantially larger if less "influential" audience. Where this essay could usefully be revised, I think, is to substitute for the politics of the 1850s (which even if accurately rendered are not really relevant) a more direct analysis of the political possibilities in the present situation.