States Criminalizing Immigrant Workers through State "Identity Theft" Legislation

When Congressman James Sensenbrenner sponsored legislation in the U.S. House of Representatives to make just being an undocumented immigrant a felony, progressive political leaders denounced the bill as misguided and hundreds of thousands of people took to the streets across the country in protest. As U.S. Senate Majority Leader Harry Reid argued, "[The Sensenbrenner bill] makes criminals out of and demonizes a lot of hard-working people who are just trying to provide for their families. In my view the House bill is mean-spirited and un-American." 

That federal Sensenbrenner bill was defeated, but now a number of states, under the seeming cover of fighting "identity theft," are moving to adopt de facto the same policy of making felons out of millions of undocumented immigrant workers. The latest proposal is Iowa's proposed HSB 717, which would make any use of a fake social security card to obtain a job a crime of "identity theft," even if no one owns that number. Other similar state proposals include Kentucky HB 304 (also Kentucky HB 2921 and Kentucky HB 95), Minnesota HF 3294 , South Carolina SB 453 (also South Carolina HB 3035 and South Carolina SB 8).  The bills seem to be based on a model, MS SB 2957, approved by Mississippi back in 2006.

A Tool for Employers to Exploit Workers:  What this means is that undocumented immigrants will be driven even further underground with more incentive to stay "off the books" (and therefore much more vulnerable to exploitation) in order to avoid being automatically made felons. Employers will exploit that worker vulnerability, since they can hire immigrant workers, then threaten any who protest treatment on the job with being imprisoned and deported as a felon. In Kansas, for example, an employer tipped off immigration authorities that a worker injured on the job who filed a workers comp claim was undocumented. These kinds of "identity theft" laws will just hand a new tool to bad employers and enable them to manipulate state prosecutions in order to further intimidate their workforce and keep wages down.

Making Real Identity Theft Worse:  Real identity theft where anyone, undocumented or not, manipulates someone else's identity to hurt them financially is a real crime and should be prosecuted to the fullest. The problem with this new crop of "identity theft" bills is that they create a felony crime where there is no intent to hurt another person, no evidence of financial harm, and a crime even where the "victim" of the identity theft is a "fictitious person." 

And the problem with criminalizing non-existent harm to non-existent people is that it may actually encourage immigrant workers to turn to more sophisticated identity forgers using REAL identities, since those are harder to detect.  As new employer sanctions laws have been applied in Arizona, the Arizona Republic noted:

The push for more documents, especially with authentic numbers, is expected to spur more identity theft... "There is a good potential for an increase in identity theft and also an increase in the manufacture and sale of fraudulent documents," said Leesa Berens Morrison, director of the Arizona Department of Homeland Security.

Real Solutions Needed:  As the Arizona example shows, state enforcement of immigration laws usually has unintended consequences that worsen the situation, not just for undocumented workers but for legal workers as well. The best thing states can do is crack down on illegal low-wage sweatshops, an approach that raise standards for all workers.

More Resources