Review & Outlook

THE FORFEITURE PRECEDENT

Today in Tennessee, Tyson Foods and six executives of the poultry
powerhouse will be arraigned in federal court on charges of conspiring to
violate immigration laws by smuggling in Mexican workers. A Tyson official
says all involved will plead not guilty.

This indictment is troublesome on several fronts. We'll come to the
immigration laws in a moment, but first a word about forfeiture. Yes,
forfeiture, which is the government's seizure of property or other assets
as compensation for allegedly illegal profits. It's a word heard more often
in connection with the prosecution of drug smugglers, not major
corporations accused of hiring illegal immigrants. Yet Tyson says it was
indicted only after it rejected a government demand for a $100 million
forfeiture to settle the case.

This looks like a trend, and maybe a dangerous one, with at least two other
recent instances of forfeiture being applied in immigration cases. This
expansion of the forfeiture statutes seems to be part of Attorney General
John Ashcroft's promised crackdown from "the border to the boardroom." We
hope it isn't also a new loophole for prosecutorial abuse, much as the
Mafia-inspired RICO statutes were distorted for use against Wall Street.
Tyson's claim that it was indicted only after it refused forfeiture is
especially worrisome. For the record, Justice denies it.

At the heart of the Tyson case is a two-year Immigration and Naturalization
Service undercover operation. A Tyson vice president and five plant
managers are charged in a conspiracy to import illegal aliens and provide
them with fake Social Security cards. The indictment adds that Tyson
management created a "corporate culture" that condoned the hiring of illegals.

Yet despite two years, and a complicated sting operation, the indictment
names only 15 actual illegal hires. While illegal hiring cannot be
condoned, the reality of such low-skill jobs as chicken production is that
immigrants often are the only ones who will take them. Tyson typically pays
a starting wage of around $8 per hour, with benefits that include a company
health plan. The company has to find someone to do the work, so it's no
accident that it looks to immigrant networks, especially from Mexico; about
45,000 of Tyson's 120,000 employees are of Hispanic descent.

Tyson is obliged to check identification, but fakes are common and rigorous
inquiry can cause employers to run afoul of anti-discrimination statutes.
Tyson officials note that during the INS probe the company was also being
investigated by Justice's Civil Rights Division for too closely
scrutinizing the documents of a Hispanic job applicant.

We recall that it was President Bush who once said that "family values
don't stop at the Rio Grande." And prior to September 11, a centerpiece of
the Bush agenda was U.S.-Mexico talks on immigration reform. The point of
these "guest worker" talks was to free businesses from federal harassment
merely for giving people jobs, while granting a more dignified legal status
for Mexican and other illegals who are only here to get ahead in life. It's
time to revive that agenda.

The Tyson forfeiture precedent goes in entirely the opposite direction. The
$100 million demand looks like a hammer applied to the easiest target,
namely a U.S. business. The real criminals are smugglers who exploit the
vulnerability of immigrants and often endanger their lives. But pursuing
them is a lot harder, and a lot lower profile, than hitting "the
boardrooms." The $100 million figure is especially eye-popping when you
consider that (according to Tyson lawyers) the largest fine ever levied in
the history of immigration enforcement is only $1.9 million.

Perhaps the trial will reveal new information. But based on the evidence at
hand, the burden should be on Justice to justify this expansion of
prosecutorial power. After September 11, we somehow doubt that America's
main immigration security problem is Mexicans who want to work in Tennessee
chicken plants.