Freedom of Movement: Understanding Immigration Through The Lens Of Jaywalking Laws
People walk dangerous routes when the government eliminates or fails to provide legal avenues that are safe, permanent and predictable whether it’s across the street or across an international border. With the decriminalization of jaywalking in Nevada, Virginia and now California — the “Freedom to Walk” Act will take effect in Los Angeles in the new year — it appears that people understand this when it comes to jaywalking, but not when it comes to immigration.
When someone ‘jaywalks’ from the Mexican side of the border to the U.S. side without going through a designated port of entry, that same action becomes a misdemeanor or even a felony, depending on the circumstances.
When talking about jaywalking it’s important to note that the offense is walking; the prohibited part comes when authorities analyze where the person walked. When someone allegedly “jaywalks” in jurisdictions where it continues to be criminalized, they are crossing the street illegally by not using a marked crosswalk, a minor infraction or — only occasionally — a misdemeanor.
Decriminalizing jaywalking was a measure of equity. In low-income communities, residents are less likely to have access to walkable streets and marked crosswalks, So, when they began walking where no safe or legally sanctioned path for crossing the street existed, it became a crime.
The results were disastrous; enforcement has disproportionately impacted people of color and resulted in violent, if not fatal, encounters between poor people of color “suspected” of jaywalking and local police.
The same thing happens during immigration; migrants are forced into hidden paths for entry that require the guidance of unscrupulous and dangerous human smugglers.
In fiscal year 2022, at least 853 people died trying to cross the United States-Mexico border without authorization, including those involved in historic smuggling tragedies, because Title 42 effectively closed the border to asylum-seekers.
Just like jaywalking across the street, prosecutions for walking across the border also disproportionately impact people of color and result in lethal confrontations with law enforcement.
The problems with the absence of permanent and lawful paths to entry have been decades in the making. It wasn’t a crime to cross the border during early-twentieth century but it was practically criminal to be foreign; it was an era of extreme xenophobia.
Those decades were marked by discriminatory legislation in the U.S. enforcing national origins quotas, the creation of the U.S. Border Patrol and the vilification of Mexicans as criminals, public health hazards and economic burdens.
In 1929, Sections 1325 and 1326 of the U.S. Code made it a crime to cross the border without authorization, with a specific intent to target Mexican immigrants.
After 1965, when the guestworker Bracero Program was terminated and the U.S. imposed numerical limits on Latin American immigration, unauthorized entry became the only option for millions of Mexicans and Central Americans.
Controlling movement is a central part of racist policy, policy that has had nothing necessarily to do with international borders or nationality in the past. Puerto Rican, Mexican and African American U.S. citizens had their freedom of movement restricted when they were criminalized and denied access to public benefits because of their constant movement across state borders.
Before 1969, poor U.S. citizen “migrants” who crossed state lines for work were accused of being welfare burdens and criminals who lacked the “legal residence” necessary to access social safety nets in popular destination states in the West and North.
In 1969, the Supreme Court held in Shapiro v. Thompson that U.S. citizens had a “right to travel” across state borders only after that right was consistently violated by residence statutes and internal border controls enforced by local police and state militias.
Neither jaywalkers nor unauthorized border-crossers should be criminalized for crossing arbitrary, unmarked, or manmade boundaries. Both the recent and distant past demonstrate that racially discriminatory, decades-old laws restricting freedom of movement can and should be abolished.
But that’s exactly what the Biden Administration is reportedly planning to do. It has proposed to ramp up prosecutions for border-crossers once the Supreme Court rules on the matter in June and the government might no longer be able to use Title 42 to swiftly expel asylum-seekers.
Those who counter that entering a country and crossing a street are not the same depend on exclusionary hierarchies of deservedness. The fact of the matter is that, unless a passage is inherently unsafe, the government should not regulate human movement selectively to serve its interests over those of the individual.
Incidentally, government interests aren’t served by blocking border crossing, as advocates have explained repeatedly and the government has acknowledged.
Whether it’s the need to cross the street or the border, freedom of movement should be every person’s basic human right. Jaywalkers and border-crossers’ sheer humanity is reason enough for them to have access to freedom of movement and by extension, unfettered access to safety.
Ivón Padilla-Rodríguez is a Postdoctoral Research Associate and an award-winning legal historian of migration at the University of Illinois at Chicago and a Public Voices Fellow with the OpEd Project.