Shifting the Blame? Re-Evaluating Criminal Prosecution for Employers of Undocumented Workers

Published date01 January 2021
Date01 January 2021
SHIFTING THE BLAME? RE-EVALUATING CRIMINAL
PROSECUTION FOR EMPLOYERS OF UNDOCUMENTED WORKERS
Rachel Sumption*
ABSTRACT
It is easy to buy into the idea that prosecuting corporate employers of undocu-
mented workers is an equitable alternative to mass raids where undocumented
workers are arrested and placed in removal proceedings. The media response af-
ter a highly publicized set of ICE raids in August 2019 ref‌lects an emerging con-
sensus that the DOJ and federal agencies should mete out the consequences of
working without authorization equally between employees and their corporate
employers using the criminal employer sanctions provisions of immigration laws.
Prosecuting employers, goes the argument, will “shift the blame” for the crime
of undocumented work to an entity or person who is prof‌iting from wrongdoing.
Prosecutions could also be used to punish employers who are exploiting undocu-
mented workers. This Note argues that criminal employer sanctions cannot be
used to protect workers, and they cannot provide meaningful accountability for
the “crime” of undocumented work. Criminal employer sanctions are rooted in a
legislative design that intends to punish workers, despite the law’s emphasis on
employers. In practice, criminal employer sanctions accomplish their goal of
punishing workers by triggering f‌irings and mass arrests as prosecutors build
their case against an employer, disincentivizing prosecutors from achieving last-
ing accountability for corporate actors or improvements in worker protection. In
lieu of criminal employer sanctions, this Note supports solutions that relocate the
power of naming and preventing the harms of undocumented work to those who
are most at risk for exploitation. It presents three alternatives for immigration
and criminal justice reform advocates who are searching for solutions: rights-
based discourse, enfranchising workers through unions and localities, and using
state power to resist criminal employer sanctions and legalize aspects of undocu-
mented work.
* Juris Doctor Class of 2020, Georgetown University Law Center and Incoming Associate, Clifford Chance
LLP. Inspiration and key data for this Note came from Professor Brandon Garrett’s seminal white-collar crime
scholarship and the Corporate Prosecution Registry, which is maintained by Duke Law and the UVA Law
Library Legal Data Lab. For her thoughtful comments, encouragement, and guidance during the early stages of
this project, I owe my deepest thanks to Allegra MacLeod, Professor of Law at Georgetown University Law
Center. This Note was much improved with careful edits and feedback from Janae Staicer and the students of the
Borders and Banishment Fall 2019 seminar at Georgetown Law. I also thank Aden MacMillan, Jordan Hughes,
and the Notes Team of the ACLR for their insightful edits and support. © 2021, Rachel Sumption.
227
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
I. A BRIEF HISTORY OF CRIMINAL EMPLOYER SANCTIONS . . . . . . . . . . . . . 232
A. Legal Structure of Criminal Sanctions for Employers . . . . . . . 232
B. Worksite Enforcement Across Administrations . . . . . . . . . . . . 235
1. The Bush Administration (2001–2009) . . . . . . . . . . . . . . 235
2. The Obama Administration (2009–2017) . . . . . . . . . . . . . 236
3. The Trump Administration (20172021) . . . . . . . . . . . . . 237
II. ISSUES PLAGUING PROSECUTION OF EMPLOYER SANCTIONS . . . . . . . . . . . 239
A. Criminal Sanctions for Employers are Structurally Flawed . . . 239
B. Employers Are Not Held Accountable Through Criminal
Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
C. Employer Criminal Sanctions Are Not Labor Protection . . . . . 244
1. Employer Sanctions Were Not Intended to Protect
Undocumented Workers . . . . . . . . . . . . . . . . . . . . . . . . . 245
2. Criminal Law Is Not the Proper Tool for Protecting
Undocumented Workers from Abusive Employers . . . . . . 247
III. IF NOT PROSECUTION, THEN WHAT? FRAMING PRELIMINARY IDEAS
FOR SOLUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
A. Rights-Based Language and Discourse. . . . . . . . . . . . . . . . . . 249
B. Enfranchisement of Workers in Localities and Unions . . . . . . . 251
C. Resisting Employer Sanctions . . . . . . . . . . . . . . . . . . . . . . . . 252
1. State Agencies and Localities . . . . . . . . . . . . . . . . . . . . . 253
2. Corporate Resistance . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
INTRODUCTION
On Wednesday, August 7, 2019, U.S. Immigration and Customs Enforcement
(“ICE”) agents arrested 680 workers in seven chicken processing plants across the
state of Mississippi who were suspected of working without authorization.
1
ICE
bused arrestees who could not prove their work authorization to an empty
Mississippi Air National Guard hangar to process them for immigration violations.
As of November 2019, 119 of the migrants arrested faced immigration-related
criminal charges.
2
Three attorneys from the public defender’s off‌ice in Jackson,
Mississippi, represent more than half of the defendants, and the off‌ice has sought
help from other public defender off‌ices throughout Mississippi and the United
1. Rogelio V. Solis & Jeff Amy, Largest US Immigration Raids in a Decade Net 680 Arrests, ASSOCIATED
PRESS (August 7, 2019), https://apnews.com/bbcef8ddae4e4303983c91880559cf23.
2. Press Release, U.S. Att’ys Off., S. Dist. of Miss., 119 Illegal Aliens Prosecuted for Stealing Identities of
Americans, Falsifying Immigration Documents, Fraudulently Claiming to be U.S. Citizens, Other Crimes (Nov.
7, 2019), https://www.justice.gov/usao-sdms/pr/119-illegal-aliens-prosecuted-stealing-identities-americans-
falsifying-immigration.
228 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:227

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