University of Nevada, Reno in Pursuit of Nativism

University of Nevada, Reno

In Pursuit of Nativism: Is it in Arizona?

A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts in Criminal Justice

William P. Mantle

Dr. Robert H. Chaires/Thesis Advisor

December, 2011

ABSTRACT: Threading together Blackian analysis and comparative history, this study seeks to determine whether there is a resurgence of nativism in modern day Arizona. At the center of this study is Arizona Senate Bill 1070. Its anti-immigration laws, when coupled with involvement by privatized prison corporations in its formation, most notably the Corrections Corporation of America, is implicated in fostering and maintaining an atmosphere of nativism. Blackian analysis will show that it is almost inevitable that the Arizona law will be abused by law enforcement because its very nature is discriminatory. American history will be examined for major occurrences of nativism from 1826-1957 to allow for a comparison between them and modern day Arizonans. To aid understanding, a breakdown of Senate Bill 1070 will be performed. Keywords: arizona, corrections corporation of america, nativism, senate bill 1070, and blackian analysis

Acknowledgments

Mother, you are my motivating and guiding force. Without you I know I would not have come this far. I love you.

Professor Chaires, you taught me the most valuable lessons of all. You taught me to think. You showed me it was okay to ponder abstractly, that the world is filled with delicate connections and interactions of all sorts. I am beyond thankful.

Professor Lentz and Professor Robinson, your advice and efforts were vital to what my work would become, thank you.

Debbi Dearman, your office was my oasis and place of rejuvenation. Without it I might have been overcome by stress and worry, thank you for always being there for me.

Professor Peak, you encouraged me before anyone else. Your advice and compliments changed the path of my life, thank you.

The CRJ department, all of you taught me, laughed with me, and answered any questions I might have had. I could not have asked for a better education and persons to educate me.

To all my friends, you always showed interest in my work and understood when I had to work and not play. Those nights of reprieve were sorely necessary and relaxing.

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TABLE OF CONTENTS

Introduction…………………………………………………………………………….….1

Section I. Blackian Analysis and Senate Bill 1070………………………………………..4

Section II. Privatized Prison Corporations and Senate Bill 1070………………………..14

Section III. A Brief History of American Nativism…………………………………...... 20

III. a) Anti-Catholic Nativism, Mid – Late 1800’s...... ………....21

III. b) Anti-Chinese-American Nativism, Late 1800’s - Early 1900’s....……..…24

III. c) Anti-German-American Nativism, Early 1900’s...... ….26

III. d) The First Red Scare’s Nativism, 1919-1920………………..….…...…….28

III. e) Anti-Japanese-American Nativism, 1941-1944……………………...…....33

III. f) The Second Red Scare’s Nativism, 1947-1957………………………...….36

Section IV. Contemporary Arizona………………...……………………….…………...41

IV. A) Senate Bill 1070………………………………………………………….41

Section V. Nativism…………………………………………………………………...…50

V. A) Identifying Nativism in Arizona....………………………………………..50

V. B) Determining Nativism in Arizona…………………………………………54

Bibliography……………………………………………………………………………..58

Appendix A, Arizona Senate Bill 1070 Fact Sheet……………………………………...62

List of Figures

Figure Page

1. Blackian Anaylisis Concepts…………………………………………………………69

In Pursuit of Nativism: Is it in Arizona?

The Statue of Liberty is inscribed with words that every American should know;

“…give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore…” America has not always lived up to the promises of its great lady. This study focuses on a reoccurring strife known as nativism, understood as “…prejudice in favor of natives against foreigners; the practice or policy of protecting the interest of native residents against those of immigrants” (Clark, 1974, p.

109). In the nearly 250 years that the United States of America has been a nation it has seen more than its fair share of war, trouble, and civil unrest. During these times

Americans have allowed their prejudices, fears, and worries to get the better of them allowing nativism to flourish. However, it is still the land of the ‘free’ and not of the

‘hypocrites.’

From the Native Americans to Latin-Americans, Americans have discriminated, persecuted, and segregated one another many times. This has often come in the form of incarceration, deportation, or social restrictions. A new cycle of nativism is potentially in motion; Latin-Americans are caught in an increasingly heated issue regarding a new

Arizona anti-immigration law. It is important to determine, if possible, whether the motivators for this new law are connected to a potential new surge of nativism targeted at

Latin-Americans (Nowicki, 2010). If possible, nativistic ideals should be curbed and removed; identification is the first step.

In order to establish an understanding of the social intricacies and forces at play the Blackian analysis section comes first with an assessment of privatized prison corporations and their involvement in the creation of Arizona Senate Bill 1070.

Afterwards, to ascertain a potential rise in nativism, a historical overview of American nativism shall be conducted. Doing so will identify aspects of nativism such as preceding conditions, social conditions, and examples of execution. Except for Native Americans, whose case is arguably not an issue of nativism, Catholics, Chinese, Germans,

Communists, and Japanese have all suffered from American nativism, which will be examined in this paper. There are many instances of American nativism, but these groups are also connected to major points in U.S. history which will help develop a timeline of American nativism.

With a timeline and general understanding of nativism established, contemporary affairs in Arizona will be examined allowing for a comparison between past instances of known nativism and the Arizonan situation. Focus shall then be placed on the creation of the new Arizona anti-immigration law, Senate Bill 1070, and its proposed enforcement of this law. This section will clear up misunderstandings about bill 1070, and will examine its creation. With greater understanding established concerning the circumstances in

Arizona, an assessment of the potential connection between nativism and the formation of Senate Bill 1070 will be made.

Professor Donald Black is a renowned expert in theoretical sociology whom is currently teaching at the University of Virginia. He is the founder of pure sociology, a theoretical paradigm that deals with the complex interaction between social life and social structure, which forms the basis for Blackian Analysis. Blackian analysis (Black,

1976) is the process of predicting and explaining the variation of law across social space so that it can be applied as a scientific theory of law. Basically, it will provide a ‘what if’

context, allowing a person to better understand how a law will ‘behave’ given certain

circumstances.

I. Blackian Analysis & Senate Bill 1070

Each aspect of Blackian analysis is a unique measurement. According to Black

(1976, p. 2), “[L]aw is governmental social control. It is… the normative life of a state

and its citizens…” The quantity of law is measureable, whenever law is enforced or

utilized the quantity goes up, and the opposite holds true, whenever laws are rebuked or

overturned there is less law (Black, 1976). Law need not act the same at any two places

during any time; relationships, zeitgeist, political agendas, and much more affect the way

law is applied and enforced, but the way these laws interact with the social structure does

not change across time, just the laws themselves. This is easily seen when identifying

different folkways, mores, and taboos of societies. For instance, U.S. citizens hold public

partial nudity to be a taboo, but some African tribes do not. Neither is right, neither is

wrong. Law is merely applied in varying ways and levels across societies.

There are a number of tenets that must be understood regarding each of Black’s variables. After a brief explanation of what each variable measures these tenets will become the focus. Once understanding of the tenets is accomplished a brief demonstration of how Arizona Senate Bill 1070 can affect the lives of not just illegal immigrants, but every single person living in Arizona. Blackian analysis can be difficult to grasp at first sight. Black uses the phrase ‘law behaves,’ which can be foreign to many. It is simply his way of explaining the complex interaction of a law with social variables. Also, it is imperative that the social aspect of each variable be kept in mind when considering its variations and implications.

Stratification

Stratification is “the vertical aspect of social life, or any uneven distribution of the conditions of existence, such as food, access to land or water, and money” (Black, 1976, p. 1). Laws increase in quantity as other forms of social control decrease, or are perceived to, in quality. Other forms of social control are dictated by tradition, culture, family, and much more. Enforcement is usually non-punitive utilizing methods such as shaming, disapproval, and ostracizing. When these methods are ineffective or perceived so, formal social control enforced by police officers is utilized instead, which is the law societies are used to. It is important to visualize and examine the relationships that one party or group has to another, this is important for understanding Black’s work as social science and not just theory. Refering to Figure 1, Blackian Analysis Concepts, for a visual representation may aid conceptualization.

There are several factors involved with quantifying stratification. 1) Vertical

Distance is the gap between people of a social setting, which is usually calculated by wealth and also the lowest and the highest among them (Black, 1976). Black (1976, p.

13) found that, “[L]aw varies directly with stratification. The more stratification a society has, the more law it has.” A small town has little law compared to a metropolis.

The sprawling metropolis must have regulations in place that control the actions of citizens or else it cannot function effectively. Stratification rises like so, single person, friends, family, neighborhood, town, city, county, state, region, and country. A single person requires no law; they govern themselves. Friends work together and communicate, some unwritten laws likely exist. A family requires more order with the mother and father at the head controlling and guiding the children. Stratification greatly

increases from there. As there are more people to govern over a larger area stratification

is inevitable. Quantity of law increases as stratification increases.

2) Vertical Rank is determined by a society’s ranking of individuals. Ranchers

would count cattle, lumberjacks would measure forest acres, and modern society values

monetary wealth. Black (1976, p. 16) states that, “If people have an uneven distribution

of wealth among themselves… each person or group is higher or lower in relation to

others. In this sense, each has a rank, or vertical status. Law varies directly with rank.”

Lower ranks have less law than higher ranks (Black, 1976). Black (1976) uses the

examples of two poor persons fighting and two wealthy persons fighting. The poor

require far less law to deal with their dispute because it is a more humble one by virtue of

their situation. If the CEO’s of Shell and Exxon Mobile were fighting it would be a far

greater matter with much law, their fighting affects far more people than just themselves.

Rank is not just determined by wealth, it can be determined by social status, cultural

traditions and precepts, religion, and much more. For example, historically lepers have

been seen as social outcasts, but Olympic champions are the epitome of athleticism. It

would be a grave offense for a leper to attack an Olympian, but a leper attacking a leper

does not warrant the same consideration.

3) Vertical Direction concerns the movement of deviance between ranks. If a

persons of higher rank (the President) accuse a person of lower rank (a hobo) of stealing

from them, the motion of law is downward. If a person of lower rank accuses a person of

higher rank of a crime the motion of law is upward. This applies to many areas of law including legislation, litigation, and adjudication. Simply put by Black (1976, p. 21),

Downward law is greater than upward law. This means that, all else constant, law

of every kind—whether a statue, complaint, arrest, prosecution, lawsuit,

conviction, award of damages, or punishment—is more likely to have a

downward direction than an upward direction. It means that upward deviance is

more serious than downward deviance.

It is far more difficult for a person of lower social standing, status, or wealth to combat a

person with more of these let alone a person at the upper echelons of society who has all three in ample supplies. A peasant cannot hope to incriminate a king, but a king can easily sentence a peasant to death. This privilege difference is a major issue concerning the Arizona situation.

Illegal immigrants are positioned at one of the lowest strata of American society.

This makes them vulnerable to any kind of downward law, which is exactly what Arizona

Senate Bill 1070 is. 1070 was crafted by persons dwelling in some of the highest

American social strata. Illegal immigrants, under this theory, have little to no ability to

combat their situation and what they are being subjected to. American society, as a

whole, is positioned above them.

Arizona society has voted to encourage the punishment of illegal immigrants for

the crimes they have committed to access the U.S. and stay there. However, Arizona’s

society will encounter terrible social disruption due to section 2 of 1070 sub-sections B)

and E). The language of 1070 is analyzed in section IV of this paper; a summary of the

bill can be found in Appendix A along with sub-sections B) & E). Acting like a catalyst,

B) operates on the notion that police officers are able to establish a reasonable suspicion

7 concerning someone’s citizenship through non-verbal means. Racial profiling is almost a sure outcome. This has the potential to backfire terribly.

Persons of all social strata will be mistaken for illegal immigrants solely because of stereotyping. People do not carry identification on them always; this will inevitably lead to unnecessary arrests ending in a bloating and slowing of Arizona law enforcement bodies amidst necessary resources allocations to combat prisoner influx (Cornelius,

2001). No person of Latin-American heritage will be free from harassment or suspicion.

This can only lead to Arizonan society turning on itself in a horrible way.

Under sub-section E), an officer that has established probable cause may arrest any person believed to have committed a public offense that makes them removable from the U.S. This raises similar concerns to sub-section B) and it’s allowance of arrest based on probable cause for suspicions of illegal residency. 1070 has further stratified Arizona society making it easier for such laws to take effect. By placing illegal immigrants, and subsequently persons of Latin-American heritage, into lower strata police officers and society will be more able and willing to enforce law against them. Downward law is greater than upward law.

Morphology

Morphology is “…the horizontal aspect of social life, the distribution of people in relation to one another, including their division of labor, networks of interaction, intimacy, and integration” (Black, 1976, p. 37). It is a non-static variable that changes with social relation across a concentric plane. The relationship a manager has to a CEO is different at the work place compared to a company picnic. Morphology determines the boundaries of relationships and explains the quantity and style of law (Black, 1976).

Much of morphology is a result of economic codependence. As society grows our

dependence on one another grows. The greater the codependence the more law is

necessary to ensure stability and function.

Relational Distance is the intimacy between people in all areas of life and

relationships. Relational Distance can be measured between a man and wife, a foreman

and worker, a police officer and criminal, and a school teacher and student. The distance between groups is critical for the amount of law expressed. Black (1976, p. 41) states that “[T]he relationship between law and relational distance is curvilinear.” The closer and more intimate a relationship is the less likely law will be involved. We are more likely to sue a complete stranger to recover damages for hitting our vehicle rather than a family member doing so. To operate in a society of strangers’, law is required to mandate amicable relations and moderate behaviors amongst the masses.

Radial Location is the amount of participation people have with society. A political rally leader participates more in society than a recluse. Black (1976) describes society as a sphere. The core of the sphere is the center of society, which is comprised of the most useful and necessary persons. The edges are the fringe of society where the least useful and non-contributing members are. This relationship can be linked to stratification, but it is not necessary. Our social relationships are the results of many factors, like jobs, productivity, criminal activity, and more. A person can hold an important job, be very productive, be needed by many, but still be a detriment to society as a serial killer. Black (1976, p. 48) has determined that “[L]aw varies directly with integration.” Persons near the center of society require more law than those further out.

Black (1976) gives the example that two employed persons are more likely to sue each

9 other than two homeless persons. In general, the crimes committed by socially marginal persons against one another are less serious than crimes committed between socially central persons.

Radial Direction pertains to the movement of deviance across the social spectrum.

If an integrated person commits a crime against a fringe person it is a less serious act than vice versa. Black explains this as “[C]entrifugal law is greater than centripetal law”

(1976, p. 50), but it is more easily understood as, ‘outward law is greater than inward law.’ This applies alike to groups and individuals. It is also so that integrated people are more likely to utilize law. Life shows us many examples. Juveniles often receive lighter sentences for many crimes identical to what adults commit. Due to their wealth, connections, and position in society celebrities are often afforded lighter punishment than average citizens. The president of the U.S. has an armed escort; the average person is not afforded this luxury due to their position in society. The closer to the center of society a person is the more likely they are to be protected from the law and have it used in their favor.

Senate Bill 1070 does not conform to the standards of morphology because, once again, the method of identifying persons who have violated immigration laws are no different from identifying persons of Latin American heritage who have legally immigrated to the U.S. Regardless of integration and social position, every person is a possible target for these laws. There is little possibility of it gaining the support of the elites or the general public. This may be a primary reason why 1070 has been hung up in litigation; few should want to see certain parts of this bill enacted especially as long as outward law remains greater than inward law.

Culture

According to Black (1976, p. 61) culture is the “…symbolic aspect of social life, including expression of what is true, good, and beautiful.” Culture is the identity of a people. U.S. citizens, as are all citizens, are viewed as vessels of their dominant culture.

When foreigners whom have never met an American or journeyed to the U.S. is asked what they think about American people they will reflect on perceived interpretation of

American culture and respond in kind.

Culture is comprised of many elements ranging from science to religion, art to education, fairytales to novels, and morality to law. Culture is a reflection of the dominant desires of a people. Culture molds law. The laws a people make act as one of the greatest cultural descriptors. Harsh laws, harsh people. Laws change as culture does.

In the U.S., segregation was once mandated by law but is now outlawed, separate will never be equal. American culture changed allowing, and forcing, law to change.

Black (1976, p. 63) explains that, “[L]aw varies directly with culture.” The more culture there is, the more law there is. Even among the most homogenous of countries there exist multitudes of subcultures. Different cultural practices can often give rise to disputes; law must intercede when this happens. Much of the tension between cultures arises from misunderstandings, or worse yet, incompatible behaviors. For instance, in many Western countries, patting a child on the head is a sign of affection, appreciation, and acknowledgment of good behavior. In Sri Lanka, due to dominant Buddhist faith, doing so is seen as a highly invasive insult. More diverse countries require more law if only to ease cultural conflicts.

Law operates in a way that favors more cultured persons over those less cultured.

Black (1976, p. 63) states, “[L]aw is greater in a direction toward less culture than toward more culture.” Generally, people tend to live peaceably with in persons who exhibit qualities they share. Thus, a more cultured person who exhibits such dominant-class qualities is less likely to have negative interactions with the law. Groups can also be more culturally centered than others; the Westboro Baptist Church is on the fringe of society compared to the National Rifle Association. It follows that a crime committed by a person or group of less culture against a person or group of more culture is more severe than vice versa.

Examples of culturally acceptable or unacceptable behaviors are recognized throughout any phase of life. A girl can only wear a certain length of skirt in high school.

A mohawk is an unacceptable hairstyle for middle-aged secret service agents. Bright pink (perhaps fuchsia) is an unacceptable house color for average American suburbia.

Persons who stray from cultural norms tend to find their life impeded by run-ins with laws and regulations.

Another aspect of culture is its conventionality. According to Black (1976, p. 68),

“[L]aw varies directly with conventionality.” Most humans are creatures of habit and quickly grow accustomed and feel safe with ‘regularity.’ It is important to most people, it is comforting. When people go beyond what is regular, when they defy convention, they make themselves targets of the majority. As such, societies have developed their folkways, mores, and taboos to reflect what is conventional (and consequently often thought of as ‘right’). In the U.S. it is conventional that: men do not wear skirts, stealing is wrong, and people should sleep in western-style beds. Not all cultures have these

12 conventions. Scottish do wear traditional garb known as kilts that resemble American skirts. Japanese do sleep on futons, which is nothing like the quasi couch-bed furniture that Americans are used to. It is important to remember how cultures are different.

Law is utilized in greater quantity by those of greater conventionality as opposed to person of lesser conventionality. Cultures that are drastically different from the dominant culture of a nation will suffer due to these trends. The smaller realms of culture, those that exist between friends, family members, loved ones, and small towns or neighborhoods are less likely to wield law against one another, but they are quite capable.

As long as there can be misunderstanding and interpretations that differ there will be cultural clashing. The dominant culture has, and will, win in the court of law.

Organization

Black (1976, p. 85) defines organization as, “…the corporate aspect of social life, the capacity for collective action.” Two heads are better than one is a saying that refers to the might of cooperation and collective action. All groups of all sizes, be they duos or countries, increase their power by working together. Organization is measured by looking at such variables as, officers, decision making procedures, and how much collective action is possible (Black, 1976).

A republic is powerful because the joint actions of its people are vested in representatives. One man alone is weak, ten men are stronger, 100 stronger yet, and millions stronger still. An army general is no greater than any other person, but they are invested with the power to command legions and battalions. Black (1976, p. 86) states,

“[L]aw varies directly with organization.” As organization increases so too must law.

The best laid plans of a general require timely action by multiple groups of soldiers; if

one group were to be derelict in their duties the results could be catastrophic. Rules and laws attempt to ensure the behaviors of others; thus, it is understandable why mutiny is the gravest crime one may commit on a vessel. An organization requires cooperation and if that does not exist neither will the organization. Law aims to preserve and maintain cooperation which necessarily increases as collective action increases.

“Law is greater in a direction toward less organization than toward more organization” (Black, 1976, p. 92). Simply put, a collection of people are more likely to invoke law than one is. As boys are often more trouble in pairs because they are able to

support and convince the other to make decisions, the same goes for corporations and

organizations. This also means that mega-corporations (which are interestingly enough

often demonized in movies and novels) are far more capable and powerful than a smaller corporation. The theory behind organization is not as involved as the other propositions of law variation. However, it is the focus of this conversation. Organization is the law- nexus of Black. It has the potential to contain all propositions and measurements simultaneously while exhibiting their tenets.

Blackian Summary

. This section will be on a macro scale of society instead of the micro scale that has been more useful for understanding intricate relationships.

Organizations are at the zenith of every society. They are the driving force and greatest motivators. The power of organizations provide for rapid progress by determining a society’s potential and defining it. Organizations are stratified.

Organizations are the fount of wealth and any other form of social currency; they are the

14 crème de la crème. They have the ability to exert downward law against those less stratified who can merely retaliate with weak upward law.

Organizations are the center of society. They determine people’s relationships with one another through provisions of goods, employment, and economic wellbeing.

Except in cases of individual greatness as seen in artists, authors, inventors, and others, organizations allow us to define ourselves in society. They allow us to ask the questions,

“So what do you do for a living?” They wield the power of horizontal law, knowing that inward law is greater than outward law.

Organizations are good, true, and beautiful. A culture is defined by its organizations in what they produce, how they operate, and how they interact with one another. These actions of organizations filter down to the people affecting the whole of a nation by influencing many social folkways, mores, taboos, and behaviors.

Organizations are at the cultural zenith. One could be no more integrated into a society than when they are at the top of an organization, just like the President of the United

States. Organizations are the origin of cultural circles. Thus, lesser organizations are necessarily culturally more uncentered and individuals even more so, which affords the most powerful corporations vast influence and breadth of law.

There are tremendous implications if powerful corporations such as the

Corrections Corporation of America and others aid in the creation of a law that increases their profits at the expense of a person’s freedom. As shown through Blackian analysis, corporations have the means, ability, clout, and power to accomplish such a goal. The only question that presents itself is the one that asks, well, did they?

II. Privatized Prison Corporations and Senate Bill 1070

The words “[A]n NPR [National Public Radio] investigation has found…” is a

powerful beginning. In 2010, Anne Hawke produced an NPR segment on the show

Morning Edition connecting privatized prison corporations, specifically the Corrections

Corporation of America (CCA), with the creation of Senate Bill 1070. Their research is a

strong basis for the content of this paper. Starting in 2009, the privatized prison

corporation began soliciting places for prospective prison sites; that was just the

beginning (Hawke, 2010).

In December 2009, during a meeting of the American Legislative Exchange

Counsel (ALEC) the majority of the composition for Senate Bill 1070 was created and

titled as the “Support Our Law Enforcement and Safe Neighborhoods Act.” The title

stuck, it is the official name of the Arizona Senate Bill 1070. The bill met with

surprisingly strong support. “36 cosponsors jumped on …2/3rds either went to that

December meeting or were a part of ALEC” (Hawke, 2010). This was not the first time

that the privatized prison industry had its talons in others to garner support (Symanski,

2006).

In six months money started to exchange hands, 83% of cosponsors received

campaign contributions from private prison corporations, mainly from the CCA, GEO

Corporation, and the Management and Training Corporation (Hawke, 2010). The CCA

denied any involvement in lobbying for or against any immigration laws, even though the

president of the CCA claimed that the opportunities were spreading (Hawke, 201). The

majority of persons held in private prison facilities are of African-American descent

(Hallet, 2004). If the CCA manages to get a foothold in Arizona those demographics

could radically change, which sounds like a great business incentive. Surrounded by

16 former prison lobbyists, two top advisers, a spokesman, and a campaign manager,

Arizona Governor Jan Brewer signed the bill after four days of deliberation (Hawke,

2010).

The pressure to deliver public services at cheaper rates has pushed government to consider outsourcing some services (Nicholson-Crotty, 2004). It should come as no surprise that the privatized prisons industry is supported by immigration law (Koulish,

2008). Housing prisoners is a dirty job, but someone has to, and wants to, do it. If

Senate Bill 1070, signed into action on April 23, 2010, becomes unstuck from litigation and the injunctions against its more controversial provisions it will change how America operates and the prison industry operates (‘The Arizona Republic, 2010). However, if it makes it out of the courts with those controversial provisions intact it will have some powerful political supporters. The CCA is a daunting powerhouse amongst the rest of the privatized prison corporations earning a self-reported net excess of $40 million in the first quarter of 2011. Founded in 1983, the CCA has long been involved with privatized prisons (Mattera & Mafruza, 2003). The CCA is more than capable of continuing support for Senate Bill 1070 and the housing of its violators at very lucrative earnings.

The CCA has a terrible history of performance, inhuman treatment, and gross negligence. Since 2003, the CCA has,

“been buffeted by numerous lawsuits and scandals involving allegations of:

• Failure to provide adequate medical care to prisoners;

• Failure to control violence in its prisons;

• Substandard conditions that have resulted in prisoner protests and

uprisings;

• Criminal activity on the part of some CCA employees, including the sale

of illegal drugs to prisoners; and

• Escapes, which in the case of at least two facilities include inadvertent

releases of prisoners who were supposed to remain in custody.” (Mattera

& Mafruza, p. 3).

After three years, the CCA could not fix its problems, and they were wholly unpunished for this failing. These next events took place in 2005 and 2006.

In a memo sent by Assistant State Attorney William J. Catto (memorandum, April

6, 2006), of Hernando County, Florida to Brad King, the State Attorney, several incidents were reported that all involved incompetence or negligence in the jail’s operation. These incidents include a suicide of an inmate who was possibly abused by other inmates, two other suicides, a premature release and subsequent recapture, a premature transfer, an escape and subsequent recapture after the escapee committed more crimes, thefts conducted by a corrections officer, fingerprinting issues of 700 inmates, and a natural death from an infection.

Barry Yeoman (2000) reports on the happenings in Youngstown, Ohio, where the performance of the CCA might have ruined a town. Seduced by the sweet promises of easy money and zero risk for a cash-strapped town, the residents allowed a prison to be built. They did not get what they bargained for. The facility in question was inexpertly staffed, left metal equipment in the boundaries of the prison that inmates used as weapons

(20 stabbings and two murders occurred in the first year), and tear gas and humiliation were used to keep order. One day, six highly dangerous prisoners escaped. The staff waited at least half an hour before notifying authorities. Once it called for help, after an

unsuccessful amateur tracking of the escapees, they offered minimal useful information

to the police officers (Yeoman, 2000).

Yeoman (2000) further elaborates on instances of terrible CCA performance. In

Texas, inmates escaped through air-conditioner slots from a make-shift motel-prison. In two Georgia prisons, the medical care was so bad that the state auditors found it to be

‘borderline deliberate indifference’. In Colorado, 1999, some female guards admitted to having sex with male prisoners for protection because they were so outnumbered. In a

South Carolina juvenile facility, children were beaten mercilessly. Between 1995-1998

79 inmates escaped CCA facilities. In contrast, California had 9 escapes from prisons even though they have twice the inmates. Most of the mistakes were due to negligence and a failure to learn from past mistakes. The CCA has trouble keeping its prisoners and its finances in line.

In a business nicknamed ‘dungeons for dollars,’ CCA can usually hold its head highly as the most powerful (Hawke, 2010). However, in 1999, CCA made a financial blunder when it failed to pay its year-end dividend payment to shareholders; stock prices

decreased from $20 to $4 a share. The suit brought on by jilted stockholders was settled

in 2000 ordering the CCA to pay $120 million; at this point, the CCA had to make

whatever money it could to stay around (Mattera & Mafruza, 2003). In Youngstown,

Yeoman (2000) reports that even though there were already 1,700 inmates housed at the

nearby facility, and a slew of escapes and other issues occurring, CCA planned

expansions for the facility to add 500 beds and add two more facilities that would hold a

combined 5,000 more inmates. Profits for CCA look promising.

Before even the 1600s, private commerce with prisons has existed (Hallet, 2004).

Prisoners had to be transported, fed, and provided for; someone will always be there to make a profit as long as prisoners have needs. Housing prisoners was profitable back then (Hallet, 2004) and those profits have steadily increased over the years (Lilly &

Knepper, 1993). Americans are not the only ones suffering from woes of privatized prisons, the whole world experiences companies like CCA.

Privatized prisons corporations, which were created in America (Zito, 2003), use the same sweet overtures all across the world; they will build the prisons, they will staff the prisons, there will be no liability on the solicitors end, and it will all be done at lower cost, all that needs be done is to sign a simple contract (Ishibashi & Kaneko, 2008).

Countries like the United Kingdom and Australia, like America have need of these services. Currently, ‘defenses’ at most national borders are not aimed at staving off foreign invasion or to control trade; they are there to keep illegal immigrants, drug pushers, and social undesirables out (Andreas, 1999). After signing contracts with privatized prison corporations many places soon wish they had not done so, at least, that is what Sudbury (2000) explains. Groups of all sorts, “anti-racist, feminist, anti- capitalist, environmentalist, and immigrant right groups” (p. 147) scrambled together to challenge the spread of privatized prisons in Britain and elsewhere, but the gathering is slow and it is no easy task to unwrap the tentacles of privatized prison corporations once they get a hold.

To ease fears and worries about growing crime rates politicians will often say during campaigning that they are ‘tough on crime,’ they will say that the only way to keep Americans safe is not only enforcing the laws we have, but also making them more

punitive (Welch, 2003). This behavior introduces the element of ‘ power creep .’

Politicians will not say they are ‘soft on crime,’ they would be committing political suicide if they did. Instead, their goal is to show how ‘tough on crime’ they are by one- upping the incumbent or predecessor with better numbers and statistics being reported from law enforcement bodies. The dangers of ‘ power creep’ begin here.

The only way to report better figures from law enforcement bodies is to make

more arrests, increase the severity of punishment, or solve more crimes. Options 1) and

2) are easily accomplished; option 3) takes more time, consideration, and manpower than

many budgets can afford. With each politician being more ‘tough on crime’ than the last,

a constant rise in prison populations is a sure thing. Privatized prison corporations enjoy

the results of ‘ power creep ,’ and offer a helping hand to new and struggling politicians that need to make a name for themselves (Newton & Adams, 2009). ‘ Power creep ’ is a major threat to American social values and should be taken into consideration before the formation of new policy. There are only so many intensifications of punishment that can be passed before the punishment becomes more inhumane than the crime it seeks to control.

It should now be clear that privatized prison corporations were a major reason why Arizona Senate Bill 1070 ever came to exist. It is not clear if the motivations of the privatized prison corporations are anything other than greed. Is it possible that privatized prisons, as large corporations, are wielding their influence to create a resurgence of nativism to further their political agendas and profit goals? The first step to answering that question is to understand what nativism has been in the U.S.

III. A Brief History of American Nativism

Nativism does not happen suddenly, it is not something that someone determines

as they step out of bed. It is not the immediate result of economic strife or global turmoil.

Though America, and much of the world, is facing harsh economic times, nativism takes

time to develop and has many contributing factors. Each occurrence of nativism is

unique and problematic to identify. To claim nativism it must be shown that natives have

favoritism or immigrants are being repressed by them. It is important to understand the

situations, culture, and preceding events that lead to nativism. As will be seen, nativism

is often a result of public fear of losing culture, loss of livelihood, or threat of terrorism.

American nativism occurred in the late 1800’s with the anti-Catholic movement

(Peter, 2005), the anti-Chinese-American movements of the mid-1800’s to early 1900’s

(Lee, 2003), the anti-German-American movements of WWI in the late 1800’s and early-

mid 1900’s (Luebke, 1974), the First Red Scare of 1919-1920 (Coben, 1964), the anti-

Japanese-American movements of 1941-1944 (Everest-Phillips), and the Second Red

Scare of 1947-1957 (Gibson, 1988).

III. a) Anti-Catholic Nativism, Mid – Late 1800’s.

Scores of modern media have portrayed the hardships faced by Catholics in the

1800’s. Notably, the popular movies Titanic (Cameron, 1997) and Gangs of New York

(Scorsese, 2002) exemplify anti-Catholic sentiments aimed at Irish and other immigrants.

Motivated heavily by Protestants, as described by Gordon (1993), Catholics were subjected to harsh labeling as persons who followed authoritarian leadership, created crime, spread disease, immorality, and stole an honest man’s work.

Anti-Catholic groups existed before there was any violence or riots. Catholics may have been branded ‘undesirables’ as early as 1826 with the founding of the

American Home Missionary Society (Billington, 1935). Their organization was centered

on the worry that the Pope and Vatican were attempting to take over lands in America

and establish a permanent Catholic foothold. This fear nurtured distrust, apprehension,

and hate for the Catholics. Two key Protestant reverends, Samuel F. B. Morse and

Lyman Beecher, were masters of nativist propaganda (Billington, 1935). Both wrote

papers, toured Europe and America giving speeches, and both were convinced that

Catholics had an eye on the West with a desire to make it theirs (Billington, 1935). They

needed no other motivation than to make sure that did not happen.

The times were tough; people feared for their livelihood and also that the culture

and Catholicism of the Irish was going to threaten their way of life (Gordon, 1993). Food

was, at times, a difficult commodity to attain, without a job, it became nearly impossible.

The Irish had a large stake in New York as a people. “By 1855, 72 percent of the city’s work force was foreign born. The Irish formed nearly 30 percent of the city’s population and 44.5 percent of all its foreign-born” (Gordon, 1993, p. 7). Even though the Irish made up such a large part of the city, nativism still ruled, which made it very difficult to survive even if they had the money.

Perhaps some did not agree with what they saw, but people did not want to go against the grain, and people who are struggling to survive often cannot afford to advocate for others. With help difficult to find, one of the best thing a Catholic could do

was to move away from places controlled by anti-Catholic parties. One such party was

the secretive Native American party; which, created in 1845, was notoriously referred to

as the ‘Know Nothing party.’ The name describes the response a member was to give

when approached by a stranger and asked about the party. The response was simple; they

said, ‘I know nothing’ (Levine, 2001). In 1855, they were renamed the American party;

they were responsible for many violent nativist-motivated attacks and were strong anti-

immigration lobbyists (Levine, 2001). They were considerably dangerous to immigrants

for they gained a strong following of protestant constituents, and also managed to seat

and ally themselves with powerful politicians (Levine, 2001). The fight for due process

and equal treatment became increasingly difficult as the political powers of nativist

parties rose, hindering Catholics at every turn.

Political issues aside, the situation was made worse by the stratification, the

unequal distribution of resources (Black, 1976), between the rich and the poor becoming

more polarized. In Scorsese’s (2002) Gangs of New York a simple narration of “Irish need not apply,” and

I don't see no Americans. I see trespassers, Irish harps. Do a job for a nickel what

a nigger does for a dime and a white man used to get a quarter for. What have

they done? Name one thing they've contributed. captures the distress of the Catholics and the ire of others. Riots and violence were common, especially in 1870 and 1871 and were followed by a large resurgence of anti-

Catholic sentiment in 1890 (Gordon, 1993).

Soon after, New York City was once again riddled by great battles of controversy.

Amidst a financial crisis caused by embezzlement, some $25-45 million, by the corrupt politician William Maegear Tweed (aka: Boss Tweed) (Ackerman, 2005), the Irish and

Catholics in New York and surrounding areas were subject to severe nativism. They were not provided for, not granted equal opportunity rights, and were not given a secure vote. Economic instability and the difficulty of the post-civil war era and adaptation

wore most people thin and ragged. It was the same in many places, too few jobs and too

many mouths to feed, so why care at all for the most disliked people? Throughout much

of the east coast, and as far away as Missouri, nativism against Catholics generated

violence, discrimination, and revulsion (Billington, 1935).

Anti-Catholicism sentiments steadily declined at the turn of the century almost

entirely fading by the mid 1920’s (Gleason, 1981). This may have been in great part due

to a sudden diversion of nativism that was aimed at Chinese-Americans. The Industrial

Revolution of the late 1800’s and early 1900’s also played a large part in putting the nation back on its feet. There were now jobs for everyone. Although many jobs were dangerous, difficult, and paid very little, the revolution distracted many from their nativistic pursuits. After all, there was money to be made.

III. b) Anti-Chinese-American Nativism, Late 1800’s - Early 1900’s.

Across the country in San Francisco and surrounding areas, the Chinese suffered similarly to the Irish and Catholics. Many American history courses of western states include a section or two on the violence and discrimination that befell Chinese during the

1800’s. In a time of great expansion, budding industrialization, hurried stage-setting for modern America, and even with a severe drop in the stock market due to failed mining speculations, many Chinese immigrants came to America in hopes of finding work.

Some opened stores, but most worked the rail roads (Bryce, 1913). Many people still hoped for the easy money that the gold rush had once promised, but the bonanza was over long ago, and many were left penniless and in deep debt; everyone felt the damage done by mining stocks plummeting (Bryce, 1913).

Disdain grew towards the Chinese-Americans from their willing acceptance of half the wages that a white laborer would command for the same work. The only recourse for a white worker was to take the same wages as the Chinese-Americans or starve, but blame was squarely placed on the Chinese-Americans. Whites’ anger and resentment grew against the Chinese, nativism started to rear its ugly head. Whites started getting away with all sorts of crimes, especially crimes against Chinese-

Americans (Bryce, 1913).

Partly owing to the weakness of juries, partly to the intricacies of the law and the

defects of the recently adopted code, criminal justice was halting and uncertain,

and malefactors often went unpunished. It became a proverb that you might safely

commit a murder if you took the advice of the best lawyers. (Bryce, 1913, p. 431)

When law slips into a dark corner things go from bad to worse. Whenever this juncture is crossed someone, some people, or some group will be subject to the full extent of unbridled law, which allows for legalized oppression. When guardians become corrupt there is little that a victimized people can do, and that is how it was for Chinese-

Americans (Bryce, 1913). Politicians, judges, police officers, and everyone else with enough power to make a difference were being bought off thanks to the poor economy and weak men (Bryce, 1913). Every aspect of law that could come down on Chinese-

Americans was able to do so with little resistance or utterances from the general public; there was nothing to protect them from the wrath of a perturbed policeman, and being branded a ‘Chinese-lover’ was dangerous for one’s health and prosperity (Bryce, 1913).

Such lawless times can aid the creation of powerful new legislation and codes.

The Chinese Exclusion Act of 1882 was the manifestation of malfeasance and the public’s ire. The Act’s ten year tenets dictated that a Chinese laborer could not enter the country under penalty of incarceration and deportation (Miller, 1901). Emboldened by the new Act and hostile public relations, law enforcement bodies used their power and discretion to further terrorize the Chinese by arresting them for the slightest infractions

(Miller, 1901). The Immigration Act of 1924 further emboldened American nativism by limiting immigration and soon banning Asiatic people from entering the country

("Immigration bill passes," 1924). Until the repeal in 1943 with the Magnuson Act, nativistic violence and discrimination hounded the Chinese (Chang, 2003).

According to Lee (2002), the Chinese Exclusion Act of 1882, “fundamentally transformed both immigration to the United States and the country’s relationship to immigration” (p. 56). It opened the door for other similar acts to follow and harsher immigration laws were seen as more reasonable. Worse yet, as Lee (2002) describes,

“…its significance goes far beyond the legal realm. Chinese exclusion helped redefine the very ways in which Americans saw and defined race in relation to other immigrant groups and transformed America’s relationship to immigration in general” (p. 56).

Americans took steps that could never be taken back because of Chinese exclusion.

America became forever less tolerant and arguably worse. “The end result was a nation that embraced the notion of guarding America’s gates against “undesirable” foreigners to protect Americans” (Lee, 2002, p. 56). The effects of such nativistic philosophy can be seen in modern day politics and policy making.

III. c) Anti-German-American Nativism, Early 1900’s.

Perhaps a possible symptom of war hysteria, persons that share strong ethnic ties to enemy countries during times of war are more likely to have their loyalty questioned by fellow citizens (Daniels, 2005). German-Americans were subject to such suspicions during both WWI and WWII (Capozzola, 2002). During these wars, mobs formed that killed a number of German-Americans for no reason other than fear, worry, and insecurity (Capozzola, 2002).

Coben (1964) gives insight into the minds of nativist-driven citizens in 1918 imagining what they would say about immigrants, “They used America, … they never loved her. They clung to their old language, their old customs, and cared nothing for ours. … As a class they were clannish beyond all other races coming here” (p. 60). If it were not for the influence of WWI it is likely that such nativist sentiments aimed at

German-Americans would not have existed so strongly at the time. Coben (1964) alludes to an interesting interaction between war-created stress and revitalizing patriotism as a vessel for the surge in nativism that targeted German-Americans. It seems reasonable to believe the people threatened by the thought of foreign war can suddenly turn on those citizens that relate to the foreign enemy.

WWI had vastly different public conditions and reactions than what the 1800’s held, even though the American Civil War was a complicating factor during that time period. In order to preserve American ideals and safeguard innocent American citizens,

President Woodrow Wilson reacted with a fury against any sort of nativistic violence or mob rule; such behavior was not to be tolerated not because of his personal beliefs, but for several militaristic reasons (Capozzola, 2002). Violence and domestic disturbances during a time of war can severely undermine the war effort. Soldiers of German-

American origin having to fear for their families and themselves not only cripples morale but can also breed mistrust amongst the ranks. Resources are scarce during times of war.

Having to allocate any resources away from the war effort towards domestic disturbances is not only a burden domestically, but a risk to foreign operations that otherwise could be better provided for. Many citizens truly believed they were doing the right thing through violence, that they were, as Capozzola (2002) writes, being ‘vigilant.’

Citizens that could not fight, build, or rally were not necessarily devoid of patriotism or a sense of duty. An easy outlet for their patriotic passions was found in vigilance. “…Vigilance as an obligation of citizenship has been not just a rhetorical flourish, but a political practice in which collective policing by private citizens contributed to community defense” (Capozzola, 2002, p. 1356). Vigilance and vigilanteism are thinly separated. The intent of persons to patrol a city for suspicious persons or crime is similar, but coldly different from those that seek to mete nativistic

‘justice’.

German-Americans were victims of physical coercion and ‘mob violence’ wrought by vigilante citizens who killed and terrorized their fellow Americans

(Capozzola, 2002). Fortunately for German-Americans, politicians were primarily on their side and had incentives to keep the peace. Until WWII broke out their problems began to diminish, especially when concerns for economic well being intensified in the early 1920’s. In time, like the other nativism sentiments, they slowly bled away or were redirected with few traces remaining today.

III. d) The First Red Scare’s Nativism, 1919-1920.

The first Red Scare was not created by any one event; it was an amalgamation of

many social and economic disturbances (Coben, 1964). Many believe that the Bolshevik

revolution was the event that launched the first Red Scare, but it actually acted more like

a catalyst (Coben, 1964). A combination of, “runaway prices, a brief but sharp stock

market crash and business depression, revolutions throughout Europe, widespread fear of

domestic revolt, bomb explosions, and an outpouring of radical literature” (Coben, 1964,

p. 59) set the stage for a surge of new nativism.

According to Coben (1964), World War I had a huge impact on the American

psyche as well as its social and economic issues;

World War I disturbed Americans not only because of the real threat posed by

enemy armies and a foreign ideology. For many citizens it had the further effect

of shattering an already weakened intellectual tradition. When the European

governments decided to fight, they provided shocking evidence that man was not,

as most educated members of the Western society had believed, a rational

creature progressing steadily, if slowly, toward control of his environment. (p. 61)

Psychology, as a nativistic motivator, plays a large part in Coben’s attempt to

understand the process and growth of nativism. His examination of several psychological experiments unearthed a curious finding: at least several million people are always prepared to participate in and desire a ‘Red Scare’. These persons are budding nativists; they hold hostility towards minority groups, especially groups that are vastly different from the dominant culture. They are fanatical patriots and firmly believe that these groups threaten America’s safety (Bennett, 1995). These individuals do not view minority groups as equals; they view them as nefarious intruding beasts that wish to

corrupt a good society and warp what decent Americans have worked hard to preserve.

Coben (1964) found that were it not for the aggravating factors of economic and social

strife the individuals who harbor nativistic tendencies and thoughts would have not likely acted on their impulses and thoughts; social stresses pushed them over the edge.

From these several million people a group known as the one hundred percenters, persons who desire a one hundred percent white culture, found most of their recruits and support. Believing that a one hundred percent white culture could stop the perversion of their idyllic culture, these persons pursued what Coben (1964, p. 55) titled a

“revitalization movement.” Distraught and worried at the prospect of having their culture washed away by foreign invaders, the revitalization movement of the hundred percenters was a frantic attempt at stabilizing their crumbling world. Dominant groups can become just as fearful as a minority group, they fear power loss, social status alterations, and have inferiority complexes. This can be enough motivation for dominant groups to attack minority groups.

The movement was named a ‘Red Scare’ because the threat to American individualism was primarily coming from Russia (Coben, 1964). The American society drastically changed with the advent of WWI. Women went to work in factories and men were pulled from their families by the draft. After the war ended and the men came home they could not find jobs, and racist sentiment grew against African Americans because many held jobs that a Caucasian wanted and had previously held (Bennett, 1995).

Americans began granting the federal government greater regulation of the economy, which had returning soldiers and traditionalists fearing that they were going to be told how to live, work, and conduct their business (Coben, 1964).

Their worry was enhanced by the threats of the successful Bolshevik conquerors, which desired the spread of Marxist ideology. Suddenly, Americans had to be worried about ‘Reds,’ the name given to communism and its supporters, because they could infiltrate America and subvert duly elected representatives. People were so worried that some viewed unions as being nests for communists because of their collective nature.

Fears kept intensifying providing fuel for nativism.

Support for “one hundred percent America” (Coben, 1964, p. 69) was on the rise, some of Coben’s nativistic examples follow:

At a victory loan pageant in the District of Columbia on May 6, 1919, a man

refused to rise for the playing of "The Star-Spangled Banner." As soon as the

national anthem was completed an enraged sailor fired three shots into the

unpatriotic spectator's back. When the man fell, the Washington Post reported,

"the crowd burst into cheering and handclapping." In February of the same year, a

jury in Hammond, Indiana, took two minutes to acquit the assassin of an alien

who yelled, "To Hell with the United States." Early in 1920, a clothing store

salesman in Waterbury, Connecticut, was sentenced to six months in jail for

having remarked to a customer that Lenin was "the brainiest," or "one of the

brainiest" of the world's political leaders. (p. 52)

These are extreme examples, but they are powerful. Uncharacteristically, the rich and the elite were the class most frightened by the Bolshevik revolution of 1917 (Bennett, 1995).

They would be the ones to suffer the greatest financial losses were communism to take hold in America. It was likely a scary thought to have everything you have worked for and earned your entire life be divided amongst the masses while your personal claim was

32 perhaps slightly above the average allotment. They were afraid, and because they were afraid they struggled to keep their lives the same. They were supporters of actions as described above. They were supporters of whatever could promise them stability in these turbulent times, even if that meant selling out their fellow citizens (Bennett, 1995).

Two particular acts arose to ‘encourage’ good American behavior; these being the

Espionage Act of June 1917 and the Sedition Act of 1918. The Espionage Act made it illegal to utter statements that ‘obstructed the war effort’ or ‘aided the enemy’ (Bennett,

1995). There may have not been a greater breach of freedom of speech than what this

Act accomplished. Perfectly vague and amorphous, this Act was dream legislation for persons trying to take advantage of the tensions and mounting fears of the people. One could be arrested on word and rumor alone. The Sedition Act was even more nebulous.

Persons could be punished for up to 20 years in prison for merely ‘holding’ a disloyal opinion and making demeaning references towards the flag or American government

(Bennett, 1995). These were frightening times motivated by frightened people and capitalized on by those who knew the fear was unsubstantiated.

Another instance of politically notorious note was the Palmer raids. They were overseen by Attorney General Alexander Mitchell Palmer, and headed by a young J.

Edgar Hoover (Coben, 1964). The Palmer raids captured more than 6,000 aliens all

‘alleged communists’, whom were to be deported, but due to the illegalities and unsupported evidence, most were released (Coben, 1964). Nativism is doubly dangerous in that it will entice some to act when they would not and others will use it to secure power and prestige.

In early 1920, were it not for the gradual economic recovery the history of

America would have been forever changed. Americanism and one hundred percent supporters might have gained some significant political traction, even possibly getting candidates like Palmer into the White House, had the economic turbulence not abated.

The first Red Scare was a matter of ideology, pride, and fear. Many Americans could not stand the thought of their great country being suffused with the Russian national anthem.

The communism threat seemed confined to Russia, and grasping at China. The fear of communism would not be significantly reignited until the Second Red Scare (Coben,

1964). By 1924, with the signing of the national origins quota law, nativism and immigration concerns nearly evaporated (Gleason, 1981).

III. e) Anti-Japanese-American Nativism, 1941-1944.

Many know this address by Franklin D. Roosevelt, “Yesterday, December 7th,

1941 -- a date which will live in infamy -- the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.” Starting with the attack on Pearl Harbor, during WWII Japanese-Americans suffered dearly along with

German-Americans. Seventy-four days after the Pearl Harbor attacks Franklin D.

Roosevelt signed into action Executive Order 9066 (Daniels, 2005). This order granted the Secretary of War the power to declare certain areas as military zones, which would later be used to create internment camps for the housing of potential spies; it was a proposed safe haven for Japanese-Americans and persons of dubious loyalty (Daniels,

2005). Not knowing the extent of the Japanese intelligence network on the West Coast, the brass decided that no chances were to be taken; many Japanese-Americans were

moved from the coast under Executive Order 9066 (Everest-Philips, 2007). Such actions,

strangely, did not concern anyone as being overly based in nativism or racism.

According to Sanchez (1997), Americans are notoriously bad at identifying new

nativism emergences domestically, but are quite capable of recognizing them in other

nations. This is possibly due to America’s poor track record of ethnic relations.

Interracial tensions in America have existed since its founding, the slave trade was the

beginning (Sanchez, 1997). It is believed, by Sanchez (1997), that “…the history of

white on black racism blinds Americans from recognizing any other forms of interracial

tensions. Racism against Asians and Latin Americans is dismissed as either “natural

byproducts” of immigrant assimilation or as extensions of the white-black dichotomy” (p.

1025). With this in mind, it can be understood why the clear violations of freedom and

liberty in the internment camps were not greatly decried.

Simply put, Americans did not believe interring certain ethnic groups was wrong.

Fear was a motivator immediately after the bombing of Pearl Harbor. Fear and irrationality go hand in hand, and so it was that over “100,000 Japanese Americans were interned in 1942” (Everest-Philips, 2007, p. 249). Many of the persons interred also lost their property, which was seized by the military or looted. Most Americans thought the attack on Pearl Harbor had to be carried out through the careful coordination of an elaborate spy network, which damaged Japanese-Americans reputations. Exacerbating the situation was also Hollywood propaganda against Japanese-Americans.

Subsequently, Japanese-Americans were demonized and many were later realized to be treated unfairly as criminals and in an unconstitutional way (Everest-Phillips, 2007).

The nativism aimed at Japanese-Americans was born of ideological fear and war hysteria. Ideology is meant as “a shared commitment to certain universalistic values”

(Gleason, 1981, p. 503). War hysteria is more simply understood, people begin seeing an enemy in persons that share traits with a publicly identified one. The sustaining arguments against the anti-Catholic and anti-Chinese nativism were based on economic, cultural, and religious strife. On the other hand, Anti-German and anti-Japanese nativism are very similar though German-Americans were also targeted in the 1800’s due to their

Catholicism. It is important to keep in mind that nativism, by its nature of putting natives before foreigners, can result in people being seen only by their ancestry and ethnic origin, and not as the loyal Americans they are. Simply put, innocent Americans that look like

‘the invader may be thought of as ‘the invader.’

Daniels (2005) found that the judiciary was more concerned about “the safety of the state than about the civil liberties of its citizens” (p. 159). Unlike the support given to

German-Americans in WWI, the president and the judiciary were not going to support the

Japanese-Americans. Cases like Yasui v. United States, 320 U.S. 115 (1943), a case about a Japanese-American man violating his curfew to continue studying at the college library, and Korematsu v. United States, 323 U.S. 214 (1944), a case where a Japanese-

American man refused to leave his home in California and report to his internment camp, were examples of issues that today would have been rapidly dismissed as unconstitutional judgments (Daniels, 2005). However, not every judge went along with the nativistic

‘plow-em under’ sentiment. These dissenters were hope for the Japanese-Americans. As the Supreme Court wields the law of the land, so too does it mold the zeitgeist (spirit of the times). If the pinnacle of American law supports nativistic laws then so too will most

36 of the country. However, due to the division of the court by these and other cases, on

December 18, 1944, the Supreme Court ruled in the Korematsu case that the wartime internment of Japanese-Americans was constitutional, but in a separate decision it held that loyal citizens must be released (Daniels, 2005). If justices had not offered their separate opinions there is no telling how long the internment of Japanese-Americans, and others, would have been legal. It likely would have taken an act by the people, perhaps through rioting and revolt, to change the law otherwise.

III. f) The Second Red Scare’s Nativism, 1947-1957.

WWII had a dramatic impact on American beliefs, culture, and lifestyles.

Understanding these changes is vital to comprehending the temperaments and ideology that created the Second Red Scare. This section will endeavor to briefly overview these changes and describe the nativism that resulted.

Following the First Red Scare was the roaring 20’s, the stock market crash, the

Great Depression, and WWII in 1939. Between 1920 and 1939 understanding of culture was a very important and progressive idea; social science made tremendous strides during these times (Gleason, 1981). Part of the motivation for social science growth was the immense difficultly they found in trying to define American identity and culture because the immense diversity of the United States had always harbored many unique social elements. The 1930’s, especially, was a time where sociology made giant strides to better understand, and communicate their ideas, about cultural perspectives; major concepts and terminology were defined and discussed (Gleason, 1981). Interestingly, some believed that nativism was a positive tool that prevented the assimilation of other cultures, which possibly allowed cultures to maintain their purity (Gleason, 1981).

The previously held understanding of American identity, that an American was a

European immigrant of some Anglo-Saxon semblance, started to transform into the more modern understanding, which is well represented by Gleason (1981);

…the “ethnic”—that is, the immigrant or person of immigrant derivation—is a

prototypically American figure, not because of any distinctiveness of cultural

heritage, but for exactly the opposite reason, namely, because he exhibits in

extreme degree the “character structure” produced by the American experience of

change, mobility, and loss of contact with the past. (p. 508)

Understanding what is American helps to identify what is not American.

During the Second Red Scare, communists, Communist sympathizers, and persons who exhibited Communist tendencies or ideals were targets of both political and social repression (Gibson, 1988). The origins of anti-Communist sentiments are important. If anti-Communist sentiment began with the general public and then was acted on by elected representatives there would be little to argue about; if the majority of

Americans dislike communism supportive policy is crafted. However, Gibson’s (1988) research does not support the idea of the general public exhibiting much anti-communism sentiment during the Second Red Scare. Instead, his findings determined the elite class to be those most worried about communism.

After examining survey data of the time period, Gibson (1988) notes that elites were about equally as tolerant of communists as the general public was, but that they had to be convinced that someone was performing Communist activities even though they were more worried about Communists infiltrating our government. The general public was more eager and willing to see communists punished. Unfortunately, the fervor to see

Communism eradicated also affected other realms of American life, like unions. Unions

were dealt a frightening blow by the Smith Act (Gibson, 1988). Though named the Alien

Registration Act, it was mostly a tool to focus on supposed communists, many of whom

happened to be union organizers and leaders, and over a 100 or so were convicted under

Smith Act law (Gibson, 1988). Even though such legislations advocated the eradication

of communism, according to further survey data the general U.S. public was almost

completely disconnected from any fear or concern about communism and its effects

(Gibson, 1988). Even though the general public was willing to see communists punished

with very little evidence, the emotional climate of the era was not the crazed fear-state

that it is often portrayed as.

Elites were shown to be far more attentive to the Communist issue (Gibson,

1988). The implication of elites crafting policy for the general public is far reaching.

Public policy dictates certain public behaviors, and therefore, if elites are creating public

policy they determine the U.S. public’s behaviors. However, as was seen in the

Revolutionary War, if the general public does not accept policy they can, and have, acted

fiercely against it leading to revolt, strikes, and upheaval. This also means that elites

must consider what policies to make, and how they can get them accepted by the public.

What was needed were some figure heads that could champion whatever cause the elites

desired to support.

Three men championed the Red Scare cause as powerful heads of organizations.

They had significant and deep-rooted ties with the Second Red Scare, those being Senator

Pat McCarran, Senator Joseph McCarthy, and F.B.I director J. Edgar Hoover (Schrecker,

1988). Their combined clout, power, and testimonies garnered support for the anti-

Communist movement and the surge of nativism that accompanied it. Senator Pat

McCarran, a native of Reno, Nevada, was a strong partner to McCarthy’s anti- communism. He was the chairman of the Senate Judiciary Committee and the Senate

Internal Security Subcommittee; he also drafted the McCarran Internal Security act

(Reeves, 1976). Though not the iconic figure that McCarthy was, McCarran was a coordinator of any anti-Communist action undertaken by the senate until his passing in

1954.

Senator McCarthy became so entwined with the hunting and expulsion of communists, often through dubious means, that the term ‘McCarthyism’ was coined to describe the practice of persons that question the patriotic loyalty of others while using legally questionable means or unsubstantiated evidence to implicate them (Gibson, 1988).

Senator McCarthy was at the head of the ‘Red’ hunting party, and served on committees like the House Un-American Activities Committee (HUAC) and the Senate Permanent

Subcommittee on Investigations (Reeves, 1976). Senator McCarthy knew how to use his position to great effect. His position granted him immunity to libel suits, the respect and clout due a senator, and it provided McCarthy with all the resources he would need to fuel his propaganda machine (Reeves, 1976).

By utilizing the “…technique of prescriptive publicity [public exposure and condemnation of a person’s political past by a congressional committee to achieve punitive consequences] as a formidable weapon of political harassment…” (Reeves,

1976, p. 48) McCarthy managed to keep opposition in check and further his dogged pursuit of communism and un-American sentiments. It took some time, but eventually the public abided by McCarthy’s appraisal of the communist situation even if they did not

40 whole-heartedly embrace it, as Gibson (1988) found. It is theorized that the Republican

Party may have been using McCarthy as a means of regaining their diminished political power (Reeves, 1976). It was a simple equation, if the GOP managed to find a charismatic figure with a noble cause that gained immense popularity with the people the

GOP could get rid of the leader and the issue eventually, but still ride the waves of positive action for a respectable amount of time afterwards. This is possibly what happened to McCarthy.

J. Edgar Hoover pursued communists with fervor similar to McCarthy’s. As the director of the F.B.I, Hoover was in a position just as powerful, if not more powerful, than Senator McCarthy or Senator McCarran. He had the entire F.B.I at his disposal, and he used it. According to the findings of the U.S. Senate (1976, p. 160-161) report,

Hoover admitted to ordering unauthorized search and seizures, wire tapping, and bugging, during the time of the five previous Administrations, especially Eisenhower’s who was a strident anti-Communist. Eisenhower (U.S. Senate, 1976) was a strong supporter of removing communists and sympathizers from public office through the utilization of Harry S. Truman’s (1947) Executive Order 9835, which established a loyalty program to combat the growing threat of communism interfering with government function.

The Second Red Scare was especially frightening because it was politically driven. The American people were not overly frightened or afraid of communists; their experiences never justified it. Policy makers reacted to their perceived threat of communism with harsh and repressive public policy that focused on the potential for communist activity (Gibson, 1988). Anti-Communist legislation was effective. Of the

65 million American workforces, 13 million were affected by loyalty and security programs, and as many as 11 thousand lost their jobs (Gibson, 1988, p. 514). At its height, the Communist Party USA had a miniscule following that offered little real threat, especially when compared to capabilities of the republican or democrat parties (Gibson,

1988). It is curious that American democracy would utilize political repression to preserve democracy because repression is very undemocratic (Gibson, 1988).

IV. Contemporary Arizona

Since 1993, when then president Bill Clinton promised to increase efforts of border security, Arizona has been the hot-spot for the newest wave of anti-immigration laws, especially now with its passing of Arizona Senate Bill 1070 (Cornelius, 2001). The struggles, legislation, and difficulties brought by immigration are nothing new for

Arizona and other states (Hanson, 2006). Forecasts of population growth and consumption of goods have fairly accurate, so it’s not as if both legal and illegal immigration was not predicted properly (Godsborough, 2000).

However, what was difficult to predict was the intensifying negative atmosphere concerning immigrants from Mexico and the problems along the Border States, which is where Senate Bill 1070 has taken root (Burns & Gimpel, 2000). Most citizens have desired immigration reform for sometime. Gallup polls have showed so for the last decade (Jacoby, 2006). Perhaps that is the reason Arizona has gone to such lengths in its creation of the Bill, they wanted to see something get done, but are they the right set of actions? There is no easy answer.

IV. A) Senate Bill 1070

Though currently entangled in lengthy legal proceedings, the bill takes bold and

powerful steps for the removal of the estimated 460,000 undocumented immigrants that

live in Arizona (‘The Arizona Republic’ 2010). The law is touted as simple, which it

veritably is. It seeks to bolster support for existing federal anti-immigration laws to deter

unlawful entry and illegal residence. The issue behind Senate Bill 1070 is not its

purpose, but its enforcement. Such broad and sweeping interpretive powers of ‘probable

cause’ and ‘reasonable suspicion’ regarding racially sensitive matters will raise issues.

It is important to understand the bills tenets. Due to the media frenzy surrounding this bill a certain amount of misgivings and misunderstanding are likely to occur from misinterpretation. An easily accessible Arizona State Senate fact sheet exists that summarizes the main points of Senate Bill 1070. This will not be used, as it provides for out-of-context facts, but can be seen in Appendix A. Instead to aid understanding, a paraphrased breakdown, of the bill will be performed on a section-by-section basis in this paper with a summary of the contentious points after each section; Section 1, the intent of the bill, has already been discussed in the previous paragraph.

Section 2

A) States that federal law must be upheld to its full extent, no law may limit this.

B) If a reasonable suspicion exists that a person is an illegal alien a reasonable attempt must be made to ascertain their immigration status according to federal law. C) If an illegal alien is convicted of a crime, after having served their time or paid their fines, they must be immediately transferred to federal custody. D) Law enforcement agencies can choose to transport illegal aliens in their custody to federal facilities in our outside their jurisdiction. E) A law enforcement officer may, without a warrant, arrest a person on the

43 basis of probable cause if they believe a person has committed any public offense that makes them removable from the U.S.

F) Immigration status information cannot be restricted between any Arizona governmental agencies or legal bodies when determining: subsections 1-4, deals with personal identification and government and public interaction with illegal aliens. G) A challenge may be brought to court of any political entity of the state that implements a policy that limits the enforcement of federal immigration laws, if an entity is convicted of doing so they must: cover court costs and attorney fees, pay civil penalty costs between

$1,000 and $5,000 per day said policy was in effect. H) The penalty costs will be given to the department of public safety for use by the Gang and Immigration Intelligence

Team Enforcement mission fund.

I) Law enforcement officers are secured against reasonable costs and expenses, including attorney fees in relation to any action, suit, or proceeding brought by this section providing they have not acted in bad faith. J) This section will be implemented consistent with federal laws regulating immigration, while protecting the civil rights and respect the privileges and immunities of U.S. citizens.

Section 2 Summary

This section establishes the foundation of the law and improves upon the existing federal law. B) and E) are contested points of this section. Regarding B), it is not possible to ascertain a person’s legal status through any method of reasonable suspicion.

There are no physical or aural indicators that a law enforcement officer can assess to differentiate between American citizens of Latin-American descent from persons of similar descent that are illegal aliens. Another issue arises in that this statute is

compulsory. A law enforcement officer must require verification from all persons of

potential dubious status otherwise the officers are in violation by not upholding the law to its fullest extent. Unfortunately, the law does not enforce a standard of assessment, which leaves officers to make assessments however they believe satisfactory. This is possibly the most dangerous part of both B) & E), a duty will be established that an officer must, and will, obey otherwise they will fall prey to the law they serve. This will result in police officers, under directive compulsion, to ascertain the citizenship status of persons of certain appearances. This is also known as racial profiling. Such a statute would essentially place ‘probable cause’ in police officer’s pockets.

E) Granting law enforcement officers the ability to arrest persons without a warrant under suspicion of probable cause for ‘public offense that makes the person removable from the U.S.’ is not only vague, it is dangerous. An officer does not have the ability to ascertain whether a person has committed any such crimes without knowing an identity and pulling up their criminal record, unless said suspect volunteers such information freely. This also requires a type of racial profiling unless all persons of all nationality are to be equally circumspect regarding their citizenship because the U.S. has extremely varied demographics.

Both B) & E) are critical points, especially when considered through Blackian analysis. With stratification, morphology, culture, and even organization against them, illegal immigrants (or persons perceived as illegal immigrants under these stipulations) have little hope of immediate recourse. They do not have the money to fight back, they are not integrated and connected with American society in a meaningful way, they are culturally ostracized, and an organization of illegal immigrants cannot function because

they exist outside of the parameters of law and society. Empowering police officers to

make these kinds of decisions and brandish these powers will likely be too much for

Arizonan society to handle, especially when considering how this law will behave

according to Black.

Section 3

A) In addition to federal law, a person is guilty of trespassing if a person is both:

1) present on any public or private state land, and in violation of 8 U.S. code section

1304(e) or 1306(a). B) Regarding enforcement of this section, the final determination of

an alien’s immigration status shall be determined by either: 1) A law enforcement officer

authorized to ascertain such status by the federal government; 2) A law enforcement

officer or agency communicating with I.C.E or Border Protection pursuant to 8 U.S.

Code section 1373(c). C) Persons sentenced pursuant to this section may not have a

suspension or commutation of sentence or release on any basis until the sentence imposed is served.

D) In addition to imposed sentence, jail costs and fees of 1) $500 for first violation or; 2) $1000 for second violation. E) This money will be appropriated to the

Gang and Immigration Intelligence Team Enforcement mission and to pay county jail reimbursement costs relating to illegal immigration. F) This section does not apply to

U.S. citizens. G) Describes the nature of violating this section, which is a misdemeanor.

Section 3 Summary

This section further codifies the powers granted to officers and establishes a framework for punishing illegal immigrants. C) is the highly contested point of this section. Current federal truth in sentencing laws require that convicts must serve at least

85% of their sentence. This statute requires 100% of a sentence must be served.

Furthermore, there exists a constitutional conflict of presidential authority to commute sentences and grant pardons when stating ‘any basis.’ The 100% truth in sentencing

(policies aimed at curbing parole by determining minimum percentages of time served) requirement will quickly overrun Arizona’s capacity to detain convicts, which is where privatized prisons will likely make their lucrative entrance. The amount of money required for prison and corrections spending would drastically increase.

When considering Blackian factors, it is apparent that this is a ticking time bomb waiting to explode. When understanding Black’s behavior of laws is combined with both

B) & E) of Section 2 the results are evident; a self-propagating problem arises. B) & E) afford for vast numbers of persons to be placed in penitentiaries. When combined with

C) of Section 3 the result is simple—there will be many prisoners and they will be incarcerated for very long times. Even without using statistical projections, the results are sickening and worrisome. Arizona would quickly become the ‘Grand Prison’ state instead of the ‘Grand Canyon’. The persons targeted by these laws have, according to

Black, little hope for recourse and restitution (when deserved.) Of all times, especially during a recession, this would be an ill-advised course for the people of Arizona to pursue. Even if it is wholly accepted and believed that they are doing the right things for themselves, their state, and the U.S., only terrible financial woes amongst social discord is likely to follow.

Section 4

A) Human trafficking of an illegal immigrant is prohibited. B) Violation of this section is a class 4 felony. C) Describes properties of aggravating circumstances that

47 make violation a class 2 or 3 felony, respectively. D) Chapter 10 of this statute does not apply to a violation of subsection C. paragraph 1 of this section. E) A peace officer may lawfully stop any person operating a motor vehicle if reasonable suspicion is established that the person is in violation of this section or civil traffic law. F) Is a glossary of terms defining: family member, procurement of transportation, and smuggling of human beings.

Section 4 Summary

This section desires to punish those who help illegal immigrants. Such persons are often referred to as ‘coyotes’. E) The sudden change of terminology from law enforcement officer to peace officer is curious; it should be entirely semantic as they are synonymous. E) Grants officers further power to stop persons without much guidance.

An officer should not be able to assess whether a suspect is trafficking humans or going on a family vacation. The basis for reasonable suspicion to establish probable cause will likely be racial profiling. What will be the guide for determining whether people are on a vacation or performing illegal human trafficking?

Section 5

A) It is illegal to stop and impede traffic to hire or hire and pickup laborers to be transported to a job site if the vehicle impedes normal traffic movements. B) A person may not enter a vehicle in the situation described in subsection A). C) It is illegal for an unauthorized alien to knowingly apply for work, solicit work, or perform work as an employee or independent contractor of the state. D) These violations are a class 1 misdemeanor. E) Is a glossary defining ‘solicit’ and ‘unauthorized alien’.

Amendment 13-2929: Unlawful transporting, moving, concealing, harboring, or shielding of unlawful aliens; vehicle impoundment; classification. A) It is unlawful for a person who is in violation of a criminal offense to: 1) knowingly, or recklessly disregard, the status of an illegal alien, but transport them nonetheless; 2) it is illegal to intentionally shelter, aide, or transport an illegal immigrant; 3) it is illegal to aid the act of illegal immigration. B) transporting illegal immigrants is grounds for vehicle immobilization or impoundment pursuant to section 28-3511. C) Violating this section is a class 1 misdemeanor and is accompanied by at least a $1,000 fine. If 6 or more illegal aliens are involved it is a class 6 felony with a fine of at least $6,000.

Section 5 Summary

This section looks more complex than it is. It simply seeks to stop the use of day laborers and reduce the ability for people to transport illegal aliens. It achieves this by targeting transportation and use of vehicles to aid illegal immigration. This is an important section, culturally, for the law as it is directly influences the behaviors of the public and economy.

Section 6

A) One cannot knowingly employ an illegal alien by contract, subcontract, or other independent contractor agreement. B) Describes the official complaint procedures one may utilize, the attorney general shall create a form for official complaints, and it is illegal to file a false complaint. C) Upon completing an investigation as to the hiring of illegal immigrants the attorney general/court attorney will 1) notify immigration and customs enforcement of the alien; 2) notify local law enforcement; 3) the attorney general

49 will notify the county attorney to bring an action pursuant to subsection D if the complaint was originally filed with the attorney general.

D) This concerns bring about legal action on individuals who violate subsection

A) or section 23-212.01, subsection A. E) For any action in superior court under this section, the court shall expedite the action giving it the earliest hearing date possible. F)

Denotes the penalties for violating subsection A), they must immediately terminate the employment of any unauthorized illegal aliens, the employer will be subject to three-year probation, and demands a sworn affidavit, under penalty, that all illegal immigrants have been removed from their employ. Business licenses are subject to suspension for no more than 10-business days and during the time between the affidavit signing. On second violation, all business licenses shall be permanently revoked, a second violation may only occur during the three year probationary period after a first violation.

G) The attorney general shall maintain copies of court orders that are received pursuant to subsection F, and shall maintain a database of first violators of subsection A) and make court orders available at the attorney generals website. H) To determine the status of a person’s citizenship 8 U.S. code section 1373(c) must be used. The court may request automated or testimonial verification. I) When an employer uses the e-verify program they are presumed to have unknowingly attempted to employ an unauthorized alien. J) Complying in good faith is described in this section.

K) It is an affirmative defense to claim entrapment; an employer claiming entrapment has the burden of proof to show clear and convincing evidence that: 1) the idea for violation originated with a law officer or agents; 2) the employer was urged and supported by the law enforcement officers to commit the violation; 3) the employer must

not have been predisposed to commit the violation prior to law enforcement interaction.

L) An employer does not establish entrapment if the employer was predisposed to the

violation prior to encountering law enforcement. It is not entrapment for law

enforcement to use tricks or deceit to conceal their identity leading to an opportunity to

commit the violation. Conduct of law enforcement officers and their agents may be

considered in determining entrapment.

Section 6 Summary

This section covers the basics of writing a complete law. A point of note is

section F) where day laborers and other jobs that have illegal immigrants as employees

are targeted. There is little likelihood that this section will ever look at ‘higher-class’

jobs, and instead, aims to remove illegal immigrant jobs such as migrant workers. Also,

due to this section it might just be easier for employers to not employ people of Central-

American heritage as they have higher inherent risks associated than do persons of other

ethnicities.

V. Nativism

V. A) Identifying Nativism in Arizona

Is the situation in Arizona an example of modern nativism? To answer this question a comparison between historically identified nativism and elements of Arizona’s current situation is needed. This will be done by comparing known behaviors and actions of nativism from the previously covered Catholic, Chinese, German, First Red Scare,

Japanese, and Second Red Scare situations. A nativistic behavior from 50 years ago is still, and will always be, a nativistic behavior. Therefore, if the Arizona situation shares

many of those nativistic behaviors nativism is a motivator and is reflected in the actions

occurring in contemporary Arizona.

Similarity to anti-Catholic Nativism

Arizona, much of the U.S., and parts of the world are suffering an economic depression. Recovery is slow. A similar situation existed amidst heavy immigration in the era of anti-Catholic sentiment. Religion, and its implications on public opinion regarding Latin-Americans, is not a component of this paper, but was a major factor in the anti-Catholic nativism. Berg (2009) found that the white public opinion in areas of high unemployment is a stronger supporter of legislation against illegal immigrants than those of whites who live in diverse neighborhoods with minimal unemployment. This helps validate the idea that unemployment and economic strife can be a nativistic motivator. The comparative nativistic agitators are economic downturn, high unemployment, and increasing immigration, which might be perceived as ‘diluting’ the natural culture or an attempt to replace the dominant culture completely.

Similarity to anti-Chinese-American Nativism

Illegal immigrants and Latin-Americans travelling or residing in the U.S. came for promise of work, just like the Chinese-Americans. The economic turmoil of the time was due to a severe stock market crash caused by failed mining speculations. With work scarce, Chinese-Americans worked what jobs they could to survive; many illegal immigrants and Latin-Americans do the same. This also had the side-effect of angering many whites at the time because they were in dire need of jobs as well. Legislation was created that specifically targeted Chinese-American and other Asiatic persons. There was not equal treatment under the law, which is similar to the situation in Arizona. The

Chinese Exclusion Act of 1882, like Arizona Senate Bill 1070, was a first of its kind.

Both legislations sought to firmly control immigration of the specific group in question, and threaten with both incarceration and deportation for illegally being in America. Both legislations had popular support because of the turmoil of the time. Further still, both legislations allow for poor treatment of both groups. The comparative nativistic qualities are the economic turmoil, unemployment, legislation that though not specifically targeting persons of Latin-American heritage, it is certainly alluded to if one knows what the current situation in Arizona is, the popular support for the legislation due to economic turmoil, and legislation that seeks to unequally distribute the law.

Similarity to anti-German-American Nativism

The only ‘wars’ that have broken out recently are the Afghanistan and Iraq conflicts, which are no comparison to WWI. Vigilanteism, on the other hand, exists at both times. The ‘Minutemen,’ a group with presence in many border states, is a strong vigilante group in Arizona that prowl the desolate wastes in search of border hoppers and law-breakers (Oliviero, 2011). Violence by Minutemen is uncommon, but there have been coldblooded murders and terrible violence (Oliviero, 2011). Most of these vigilantes are fed up veterans of law enforcement or military personnel that could not handle the way the immigration situation was being handled, and are comprised of many ethnicities (Oliviero, 2011). The Minutemen have the support of the general public as long as no extremely violent crime is committed, that loses them favor quickly (Oliviero,

2011). Both times saw economic hardships but politics are now working against Latin-

Americans instead of for them like they had for German-Americans. The comparative

nativistic qualities are the presence of economic hardship and the violent activities and

presence of vigilantes that are supported by the general public.

Similarity to First Red Scare Nativism

Economic hardships are a factor in both Arizona and the First Red Scare, which

may be the greatest driving force of the public during either time. There is seemingly no

connection between the psychological terror that Americans dealt with during the First

Red Scare and Arizona’s situation. There is a lot of worry, fear, and resentment, but that does not usually constitute a concern of psychological damage. However, because of the hard times being faced by the Arizona public, illegal immigrants, especially those of

Latin-American descent, are possibly being identified as malefactors.

This could be motivated by the individuals that Coben (1964) identified as being

‘primed’ for a Red Scare. Though there is little evidence to support that illegal immigrants have caused any economic stress in Arizona, this does not stop the public from demonizing them. Like Communists, illegal immigrants are different, in times of hardship people that are different are the first to be lashed at and blamed. There is also the matter, similar to the fear of the spread of communism, of the spread of drug violence from the drug war in Mexico (Nowicki, 2010). The Mexican drug war crossing the border into Arizona is a perfect fear-motivator. If people are truly afraid, they can then be manipulated or convinced of many things. A combination of fear, political propaganda, and a difficult economy might make a great formula for passing any legislation. The comparative nativistic qualities are economic hardship, the public’s emotions and uncertainty surrounding the situation, and a premier situation ready for legislators to take advantage.

Similarity to anti-Japanese-American Nativism

The economy during WWII was in a war-machine state, comparing this to

Arizona is complex. There do not seem to be many similarities between these two situations; this might be due to Japanese-Americans suffering at the hands of law and war hysteria, while illegal immigrants and Latin-Americans have not. It is possible, aside from the internment camps, unless prisons are to be renamed such, that the same situation could be replayed with Latin-Americans if the U.S. were to go to war with Mexico, but that is utter speculation. The only striking similarity might be that before legislation was enacted, Executive Order 9066 in the case of Japanese-Americans, there was public unrest and worry, but law enforcement did not specifically target either group. Both legislations target a group even though the Arizona Senate Bill 1070 does not name illegal immigrants of Latin-American descent, there should be little doubt as to who the targets are. The comparative nativistic qualities are that each group is targeted in a manner of ‘mala prohibita’, that legislation caused law enforcement to act against them and not because of any inherent wrongdoing.

Similarity to the Second Red Scare Nativism

Both Communists and Arizona’s Latin-Americans suffered political and social repression. Both originated from the activities of elites and legislators instead of the general public (Hawke, 2010). Both Arizona’s situation and the Second Red scare had key figures that pushed the issue of their respective legislations; Arizona has Senator

Russel Pearce, Governor Jan Brewer, and the combined backing of ALEC (Hawke,

2010). The public was taught to care more than it originally had in both cases. Though

McCarran, McCarthy, and Hoover were involved in varying levels of illegalities, the

Arizona situation has the possibility of ‘incentive pays’ (legal bribery) from lobbyists and

campaign contributors (Hawke, 2010). The comparative nativistic qualities are similar

origins of legislation and support, the public was not initially as supportive as it ended up

being, and political key figures spearheaded the issue.

V. b) Determining Arizonan Nativism & Conclusions

By utilizing Blackian analysis as a framework for the understanding of social

interactions and intricacies of nativism and the Bill it was made evident that there exist

inherently racist tenets in the structure of Senate Bill 1070 manifesting as obligatory

racial profiling circa Section 2 B) & E) and Section 3 C). A duty is established by the

Bill that forces officers to assess citizenship at nothing more than a glance. This cannot

be circumvented in the current incarnation of the Bill.

Due to NPR’s investigative efforts, it was uncovered that privatized prisons,

industries with questionable pasts, who stand to gain the most from the Bill, were major supporters in both the creation of the Bill and funding for its lobbying. Even Jan Brewer,

Governor of Arizona, has strong ties to privatized prison corporations. This evidence throws further suspicion on the altruism of the Bill and the circumstances that spawned it.

Privatized prison corporations stand to make substantial sums if the Bill’s injunctions were to be overruled. This would cost Arizona dearly.

An extensive historical assessment of known nativism was conducted. Each of these instances, from anti-Catholic nativism to the Second Red Scare nativism, were examined to find the preceding conditions, motivators, primary actors, and the unique effects of each. American history has been riddled with ‘eras’ of nativism one after the other up until, as examined by this study, the end of the Second Red Scare. Important

56 factors that coincide with surges of nativism seem to include a combination of: threat to economic wellbeing, perceived high immigration numbers, incompatible cultural beliefs or fear of the dominant culture being assimilated, diplomatic tensions between home countries and potentially war, the white majority blaming immigrants as the cause of certain problems, and political and economical repression of immigrants.

After identifying these factors each instance of nativism was compared to the situation in Arizona. By performing a comparative history, similar conditions, if any, were elucidated. This resulted in the establishment of many common themes. The following themes were seen most often: threat of economic wellbeing, fear of the dominant culture being assimilated, and white majority blaming immigrants for current social strife, and political and economical repression of immigrants. The other factors, incompatible cultural beliefs and diplomatic tensions were not seen as often, but were quite powerful.

The main actors, the evidence, the similarities, and the implications are too strong to ignore. Perhaps were it possible in the writing of the Bill that officers would somehow be strictly guided in their assessment of people’s citizenship it might be different. Also, if it were not for the intimate involvement of the privatized prison corporations in the formation of the Bill there might be a different interpretation of events available. This is not the case.

The situation in Arizona is an example of modern nativism. The elements are all there and too similar to what has been historically branded as nativism. When viewed with an understanding of Blackian analysis it is undeniable that groups—persons of

Central-American descent, are being targeted and discriminated against. Due to the

57 design of the Bill, others are sure to be caught in the crossfire due to similar appearances and any standard that police officers will use to determine citizenship. It is important that the injunctions on the Bill be maintained. Currently, those are the only safeguards that

Arizona has in place to prevent an all-out occurrence of nativism. Were those injunctions to be removed it would be disastrous for the economy, society, and well-being of

Arizona.

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Appendix A

ARIZONA STATE SENATE

Forty-ninth Legislature, Second Regular Session

FACT SHEET FOR S.B. 1070

immigration; law enforcement; safe neighborhoods

Purpose

Requires officials and agencies of the state and political subdivisions to fully comply with and assist in the enforcement of federal immigration laws and gives county attorneys subpoena power in certain investigations of employers. Establishes crimes involving trespassing by illegal aliens, stopping to hire or soliciting work under specified circumstances, and transporting, harboring or concealing unlawful aliens, and their respective penalties.

Background

Federal law provides that any alien who 1) enters or attempts to enter the U.S. at any time or place other than as designated by immigration officers, 2) eludes examination by immigration officers, or 3) attempts to enter or obtains entry to the U.S. by a willfully false or misleading representation is guilty of improper entry by an alien. For the first commission of the offense, the person is fined, imprisoned up to six months, or both, and for a subsequent offense, is fined, imprisoned up to 2 years, or both (8 U.S.C. § 1325).

The U.S. Immigration and Customs Enforcement (ICE) is the primary authority for enforcing immigration laws. ICE was created in March 2003 as an investigative branch of the Department of Homeland Security. ICE was the result of combining the Immigration and Naturalization Service and the U.S. Customs Service.

Current statute defines criminal trespass in the first degree as a person knowingly entering or remaining unlawfully in areas related to residential structures, residential yards, real property subject to a valid mineral claim or lease under certain circumstances, property if the person defaces religious symbols or religious property, or critical public service facilities. Depending on the circumstances, criminal trespass in the first degree provides penalties ranging from a class 1 misdemeanor to a class 6 felony (A.R.S. § 13- 1504).

In 2007, Arizona enacted the Legal Arizona Workers Act (LAWA), prohibiting an employer from knowingly or intentionally employing an unauthorized alien and establishing penalties for employers in violation. The U.S. Citizenship and Immigration

Services office administers the Systematic Alien Verification for Entitlements (SAVE) Program. The SAVE Program, together with the Social Security Administration (SSA), administers E-Verify, which allows employers to electronically confirm the employment eligibility of all newly hired employees. LAWA requires all Arizona employers to use E- Verify to verify the employment eligibility of new hires. Proof of verifying the employment authorization of an employee through E-Verify creates a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien.

The fiscal impact is unknown; however, there may be additional costs associated with criminal prosecution and detention of persons who are accused and convicted of the crimes established in this legislation. Additionally, the addition of new fines associated with this measure may also have an impact.

Provisions

Enforcement

1. Requires a reasonable attempt to be made to determine the immigration status of a person during any legitimate contact made by an official or agency of the state or a county, city, town or political subdivision (political subdivision) if reasonable suspicion exists that the person is an alien who is unlawfully present in the U.S.

2. Requires the person’s immigration status to be verified with the federal government pursuant to federal law.

3. Requires an alien unlawfully present in the U.S. who is convicted of a violation of state or local law to be transferred immediately to the custody of ICE or Customs and Border Protection, on discharge from imprisonment or assessment of any fine that is imposed.

4. Allows a law enforcement agency to securely transport an alien who is unlawfully present in the U.S. and who is in the agency’s custody to:

a) a federal facility in this state or

b) any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency.

5. Allows a law enforcement officer, without a warrant, to arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the U.S.

6. Prohibits officials or agencies of the state and political subdivisions from being prevented or restricted from sending, receiving or maintaining an individual’s

immigration status information or exchanging that information with any other governmental entity for the following official purposes:

a) determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state;

b) verifying any claim of residence or domicile if that verification is required under state law or a judicial order issued pursuant to a civil or criminal proceeding in the state;

c) confirming a detainee’s identity; and

d) if the person is an alien, determining whether the person is in compliance with federal alien registration laws.

7. Disallows officials or agencies of the state or political subdivisions from adopting or implementing policies that limit immigration enforcement to less than the full extent permitted by federal law, and allows a person to bring an action in superior court to challenge an official or agency that does so.

8. Requires the court, if there is a judicial finding that an entity has committed a violation, to order any of the following:

a) that the plaintiff recover court costs and attorney fees;

b) that the defendant pay a civil penalty of not less than $1,000 and not more than $5,000 for each day that the policy has remained in effect after the filing of the action.

9. Requires the court to collect and remit the civil penalty to the Department of Public Safety (DPS), which must establish a special subaccount for the monies in the account established for the Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) appropriation.

10. Specifies that law enforcement officers are indemnified by their agencies against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this statute to which the officer may be a party by reason of the officer being or having been a member of the law enforcement agency, except in relation to matters in which the officer is adjudged to have acted in bad faith.

Trespassing by Illegal Aliens

11. Specifies that, in addition to any violation of federal law, a person is guilty of trespassing if the person is:

a) present on any public or private land in the state and

b) is not carrying his or her alien registration card or has willfully failed to register.

12. Requires, in the enforcement of this statute, the final determination of an alien’s immigration status to be determined by:

a) a law enforcement officer who is authorized to verify or ascertain an alien’s immigration status or

b) a law enforcement officer or agency communicating with ICE or the U.S. Border Protection.

13. Stipulates that a person is not eligible for suspension or commutation of sentence or release on any basis until the sentence imposed is served.

14. Directs the person to pay jail costs and an additional assessment of at least $500 for the first violation or at least $1,000 for subsequent offenses.

15. Requires the court to collect and remit the assessments to DPS for the special GIITEM subaccount.

16. Specifies that the trespassing statute does not apply to a person who maintains authorization from the federal government to remain in the U.S.

17. Classifies the violation as follows:

a) a class 2 felony if the person commits the violation while in possession of a dangerous drug, precursor chemicals used in the manufacturing of methamphetamine, a deadly weapon or dangerous instrument or property that is used for committing an act of terrorism;

b) a class 4 felony for a second or subsequent offense or if the person, within 60 months before the violation, accepted a voluntary removal from the U.S. or has been deported;

c) a class 1 misdemeanor in all other cases.

Unlawful Stopping and Solicitation of Work

18. Specifies that it is unlawful, if a motor vehicle is stopped on a street, roadway or highway and blocks or impedes the normal movement of traffic:

a) for a motor vehicle occupant to attempt to hire or hire and pick up passengers for work at a different location;

b) for a person to enter the motor vehicle in order to be hired by a motor vehicle occupant and to be transported to work at a different location.

19. Stipulates that it is unlawful for a person who is unlawfully present in the U.S. and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in Arizona.

20. Classifies these offenses as class 1 misdemeanors.

21. Defines solicit and unauthorized alien.

Unlawful Transporting

22. Specifies that it is unlawful for a person to do or attempt to do the following if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the U.S. in violation of law:

a) transport or move an alien in Arizona in a means of transportation;

b) conceal, harbor or shield an alien from detection in any place in Arizona, including any building or means of transportation.

23. Stipulates it is unlawful to encourage or induce an alien to come to or reside in Arizona if the person knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.

24. Subjects a means of transportation used in the commission of a violation to mandatory vehicle immobilization or impoundment.

25. Classifies these offenses as class 1 misdemeanors and subjects offenders to fines of at least $1,000, except that a violation that involves 10 or more illegal aliens is a class 6 felony with a fine of at least $1,000 for each alien who is involved.

Investigations of Employers

26. Allows the county attorney, in investigations of employers who are alleged to have knowingly or intentionally hired unauthorized aliens, to take evidence, administer oaths or affirmations, issue subpoenas requiring attendance and testimony of witnesses and cause depositions to be taken.

27. Exempts proceedings held during the course of a confidential investigation from open meeting laws.

28. Stipulates that an employer is not entrapped in an investigation if the employer was predisposed to knowingly or intentionally employ an unauthorized alien and law

enforcement officers or their agents merely provided the employer with an opportunity to do so.

29. States that it is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identities.

30. Directs employers to keep verification records of their employees’ work eligibility through E-Verify.

31. Establishes a class 3 felony for failing to:

a) verify employment eligibility through E-Verify or

b) keep records of verifications.

Miscellaneous

32. Specifies that monies in the special GIITEM subaccount are subject to legislative appropriation for distribution for gang and immigration enforcement and for county jail reimbursement costs relating to immigration.

33. Stipulates that the terms of the act regarding immigration have the meanings given to them under federal immigration law.

34. Requires the act to be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of U.S. citizens.

35. Contains intent and severability clauses.

36. Titles the legislation the “Support Our Law Enforcement and Safe Neighborhoods Act.”

37. Makes conforming changes.

38. Becomes effective on the general effective date.

Prepared by Senate Research

January 15, 2010

Sub-sections B) & E)

B) FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY

21 OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS 22 STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS 23 UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, 24 WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE 25 PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT 26 PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

E) A LAW ENFORCEMENT OFFICER, WITHOUT A WARRANT, MAY ARREST A PERSON 38 IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE PERSON HAS COMMITTED 39 ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

Figures