Shirley Lung


The realities of low-wage work in the United States challenge our basic notions of freedom and equality. Many low-wage workers share the condition of being stuck in jobs toiling excessive hours against their will for less than poverty wages in autocratic workplaces. Yet the racial politics of immigration and labor are often used to stir hostility between low-income United States citizens—especially African Americans—and undocumented immigrants. Perceived competition for jobs and racist stereotypes are exploited by opportunistic politicians and employers as well to produce frictions between workers who face similar conditions. Still, there is a strong basis for undocumented and African American low-wage workers to unify. Both communities have experienced a deeply fraught relationship to freedom and coercion in which criminalization has figured prominently. This Article examines the similar attributes between two regimes of criminalization. The first regime is the Immigration Reform and Control Act of 1986 (“IRCA”), which has resulted in the criminalization of work for undocumented immigrants. IRCA, enacted more than thirty years ago, was the first time that Congress prohibited employers from hiring workers who are unauthorized to work in the United States. The second regime is the criminalization of non-work (i.e., the condition of being unemployed or of quitting one’s job to search for better employment elsewhere) for black workers in the post-Civil War South through the enforcement of vagrancy laws. A crucial feature of the Black Codes enacted after the Civil War to comprehensively restrict freed black men and women were vagrancy statutes that provided the coercive apparatus for pushing freed black men and women into forced labor. This Article juxtaposes the two enforcement regimes and brings together two areas of literature to draw attention to intersecting features of criminalization. Foremost, the criminalization of work and non-work become instruments of employer control in which state power is placed into private hands to fracture worker unity, to terrorize workers, and to discipline workers. Further, both regimes of criminalization have depended on racialized narratives and stereotypes to rationalize criminalization. This Article draws these historical parallels with the hope that such a perspective can help build meaningful alliances between undocumented immigrants and African Americans to take apart systems of criminalization that advance exploitation, immobility, and inequality.



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