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Shifting the Blame? Re-Evaluating Criminal Prosecution for Employers of Undocumented Workers
American Criminal Law Review  (IF3.455),  Pub Date : 2021-12-01, DOI:
Rachel Sumption

It is easy to buy into the idea that prosecuting corporate employers of undocumented workers is an equitable alternative to mass raids where undocumented workers are arrested and placed in removal proceedings. The media response after a highly publicized set of ICE raids in August 2019 reflects an emerging consensus 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 undocumented 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 lasting 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 undocumented work.