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Are they “illegal aliens” or “undocumented workers”?

Friday, July 26, 2013
posted by Douglas Keene

TIMEcoverIllegalAliensRecently we’ve done pretrial research on a number of cases involving Mexican immigrants who were undocumented. In each case, horrible tragedy had befallen them through no wrongful act of their own. One case involved the death of two young children by fire caused by a fire in a well-maintained vehicle. Another involved a wealthy Mexican family who came to the United States for medical treatment of their son and it went horribly wrong. And in neither case did we have to wait long for the inevitable, “are they illegals?”. When told that information was not likely to be admissible in court, the mock jurors exchanged glances and nodded grimly. They knew what that meant. Later when they were told the wealthy family had always come to the US for medical treatments, they wondered aloud, “why then, they didn’t go back now”?

It isn’t news to attorneys who advocate for Mexican immigrants and plaintiffs or defendants–but Americans are very suspicious of the documentation status of those who find themselves involved in lawsuits. Even when they are involved as Plaintiffs who have been harmed by the negligence of others. “Are they illegals?” seems to be always echoing in their hearts and minds.

This year, some new research on this very issue came out of Lawrence, Kansas. We know what you are thinking. Lawrence, Kansas? How White is that place? And you are right. It’s pretty White. The point is they did some research that can serve as a starting point for looking at the issue of race in immigration and how it interacts with our sense of justice.

The researchers wanted to see if support for tough immigration laws was really about enforcing the law (and thus identity-neutral) or about defense of privilege (and thus based on racial identity of the immigrant–what they called identity-relevant). So they studied the question in two different studies using undergraduates (all White/Caucasian) from the University of Kansas.

In brief, the study had participants read vignettes ostensibly from a local newspaper. The story described a situation where a law-enforcement officer saw a man standing outside an ATM and determined the man seemed “suspicious”. So the law-enforcement officer asked the man for identification documents (to verify immigration status “in accordance with tough, Arizona-type laws”). The man did not produce the documents and was detained. The man was described as either documented or undocumented. In one story, his name was Joseph from Canada and in another he was Jose from Mexico.

You probably know what is coming. Jose from Mexico was described as needing more punishment than was Joseph from Canada. Further, the intrusive enforcement with Jose from Mexico was seen as okay but not okay for Joseph from Canada.

So the researchers did a second study and this time (still using Jose from Mexico and Joseph from Canada) they varied the status of Jose and Joseph to be either an undocumented immigrant or a US citizen of either Mexican or Canadian origin.

And what they saw was eerily similar. Participants endorsed more negative responses toward the undocumented detainee when he was Jose from Mexico than when he was Joseph from Canada. The participants reacted less favorably to tough treatment given to a “law-breaking” (i.e., undocumented) Joseph than to a “law-abiding” (i.e., US citizen of Mexican origins) Jose.

In short, we don’t like it when White people are treated toughly but it’s okay to do it to Mexicans. It’s a very blunt and unattractive finding.  We live in Texas and so we do a significant proportion of our work in the southwestern section of the country. But it isn’t just in this section of the country where we encounter these sorts of attitudes. We have seen it all across the country–even in liberal bastions along the Coasts. As these researchers summarize:

“Participants appeared to extend to detainees of Canadian origin, but not to detainees of Mexican origin, similar standards of procedural fairness and respect for human rights to those they would demand for US citizens.”

In other words, if you are not White skinned, you are going to be responded to differently than you will if you are White skinned. It’s a validation of the anecdotal examples of “flying while brown” or “walking while black” that we have seen discussed in the media. Obviously, we need more research beyond White undergraduate students in Lawrence, Kansas. Hopefully, that will come. And for what it’s worth, it isn’t always racially biased. We’ve done a lot of work in the Chicago area, some of which involved Plaintiffs from Mexico and Central America. When asked during deliberations (since it didn’t come up spontaneously) about their thoughts of documented/undocumented status for the Plaintiff, the jurors all said “Oh, we assumed that she was undocumented, but that has nothing to do with why her child suffered birth trauma.” For this group of 12, it didn’t even bear discussion.

Given the importance and evolving nature of racial influences on the makeup of our country, you might want to take a look at our blog posts on when to talk about race and when to stay quiet for information on how racial bias sneaks about where you do not expect it. And consider whether it is wise for you to elicit empathy without judgment prior to deliberation so racism doesn’t happen under juror’s radar.

Mukherjee S, Molina LE, & Adams G (2013). “Reasonable suspicion” about tough immigration legislation: Enforcing laws or ethnocentric exclusion? Cultural Diversity & Ethnic Minority Psychology, 19 (3), 320-31 PMID: 23875856 Full text here.


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