LOCAL DEMOCRACY ON ICE: Why State and Local A Justice Strategies Report Governments Have No February 2009 Business in Federal Immigration Law Enforcement by AARTI SHAHANI and JUDITH GREENE Justice Strategies, a project of the Tides Center, Inc., is a nonpartisan, nonprofit research organization. Our mission is to provide high quality policy research to advocates and policymakers pursuing more humane and cost-effective approaches to criminal justice and immigration law enforcement. TABLE OF CONTENTS EXECUTIVE SUMMARY 1 INTRODUCTION 7 CHAPTER I 9 287(G): A ProJECT IN DevoLUTION provides an overview of the ICE program nationwide. CHAPTER II 23 THE ARIZona LABoratory investigates the impact of ICE’s largest 287(g) program on taxpayers, the criminal justice system and US citizens. CHAPTER III 45 ICE: FORCE WITHOUT MISSION examines ICE’s structural failure to supervise devolution programs from 287(g) to immigration detention. CHAPTER IV 55 NEW JERSEY DOLLARS & SENSE recounts how a Republican sheriff and a Latino community group defeated a Democratic mayor’s bid to bring ICE to their backyard. RECOMMENDATIONS 63 APPENDICES 65 ENDNOTES 69 ABOUT AUTHORS 94 ACKNOWLEDGEMENTS 94 Photo on cover by Joel Sartore/National Geographic/Getty Images EXECUTIVE SUMMARY a public safety mandate? Who should pay for the federal deportation mandate? Are civil immigration and criminal law enforcement compatible enter­ prises? Is ICE competent to oversee the transfer Over five percent of the US population is deport­ of extraordinary civil immigration powers to local able, including twelve million undocumented authorities? residents and legal permanent residents with “Local Democracy on ICE” examines the 287(g) past offenses. While programs to permanently or program specifically, as well as ICE devolution temporarily legalize status can shrink the numbers generally. We conducted an extensive literature in the shadows, they cannot erase an ever­present review and interviews with diverse sources deportable population. Meanwhile, more than including elected leaders, court officials, security fifteen percent of US families include at least one experts, reform advocates, and activists. The parent who is a noncitizen and one child a citizen. following findings contribute to a public safety Deportable people—who by law must be expelled discussion grounded in facts. from our borders—are in fact integrated into American families, businesses, and communities. The 287g Program has failed. This paradox complicates a basic question: Who should enforce our nation’s immigration laws? The 287(g) program has harmed, not served, our public safety. A tiny statute passed under the administration of Bill Clinton and implemented by George W. Bush ICE marketed the 287(g) program as a public provides one answer to that question. 287(g) refers safety measure to get “criminal illegal aliens” to a law, written into the 1996 comprehensive off our streets.But civil immigration powers are immigration reforms, which for the first time in extraneous to that mission. Criminal law provides US history created a formal mechanism for federal sufficient authority for state and local police to executives to extend to local community­based arrest anyone, including a noncitizen, suspected agencies the extraordinary arrest and incarceration of a crime. The arrest powers delegated under the powers originally carved out for immigration police 287(g) program become useful precisely when stationed at the borders. This devolution—shifting an arrestee is not a “criminal illegal alien.” When immigration enforcement from federal to local an officer lacks reasonable suspicion of a crime, hands—brings the border to the interior of our civil immigration powers still allow for arrest and nation. incarceration. Born in 2003, Immigration and Customs ICE powers take the handcuffs off law enforcement, Enforcement (ICE) is one of three immigration at the same time distracting police from their agencies within the Department of Homeland core public safety mission. Immigrants make a Security. The Bush administration identified poor target for anti­crime campaigns. Studies devolution of immigration law enforcement as a consistently show that immigrants have a lower rate primary strategy to build capacity and established of crime than American­born citizens, and commit the 287(g) program as its premiere project. The fewer violent crimes. Legally, the 287(g) program program recruits state and local police, as well as is equivalent to requiring police to check the tax correctional staff in jails and prisons to perform returns of every person stopped for a speeding civil immigration arrests and detentions on behalf ticket. of the federal government. From the outset, the 287(g) program drew The devolution of civil immigration enforcement widespread criticism. The Major Cities Chiefs to criminal justice agencies adds new questions to Association and other community policing an old debate: Does immigration enforcement serve proponents feared the program would make immigrant victims of crime afraid to call 911. 1 EXECUTIVE SUMMARY Legal scholars questioned the wisdom of allowing program’s real added value, “When we stop a car constitutional questions raised by devolution to be for probable cause, we take the other passengers trampled by executive force. Civil rights were a key too.” His 287(g) “crime suppression sweeps” have concern. Numerous racial profiling lawsuits against targeted day laborers and drivers of color, including 287(g) deputized agencies are now pending. US citizens. In Gaston, North Carolina, ninety­five percent of state charges filed against 287(g) arrestees Race, not crime, has propelled 287(g) program were for misdemeanors—60 percent were for traffic growth. In the start­up phase of the program, violations that were not DWIs. In Berry Hill, ICE did not prioritize regions heavily impacted Tennessee, a police officer arrested—rather than by “criminal illegal alien” activity. FBI and census issued a routine ticket to—a driver in her last days data indicate that sixty­one percent of ICE­ of pregnancy. In jail, an ICE­deputized corrections deputized localities had violent and property officer placed a civil immigration detainer on her, crime indices lower than the national average. subject her to indefinite incarceration pending ICE Meanwhile eighty­seven percent had a rate of action. She went into labor while shackled to a jail Latino population growth higher than the national hospital bed. average. ICE signed nearly eighty percent of its 287(g) agreements with agencies in the US South. 287(g) sets up states and localities to While it is true that crime rates in that region are bail out the federal government. higher than in others, ICE’s focus in the South The 287(g) program is unfunded, by statute. is disproportionate and confounds a balanced approach to public safety. The 1996 law prohibits the feds from reimbursing a state or local agency for the cost of civil arrests ICE has recruited any and all law enforcement and incarceration. ICE may have misrepresented agencies to do its bidding, hastily devolving this fact. A sheriff at the 2007 conference of the deportation powers into ill-equipped local National Association of Sheriffs alleges that ICE hands. Partners include street police and traffic representatives said the feds pay up to $90 per cops, corrections officers in state prisons and local day for each 287(g) arrestee. In 2006 Congress jails. By August 2008, more than 840 officers gave the 287(g) program its first budget line of in twenty states were deputized, and 70,000 $5 million, and continued that level of funding immigrants detained. County sheriffs make up through fiscal year 2008. Monies were intended for sixty­two percent of ICE partners. In Butler ICE personnel and infrastructure expenses only. County, Ohio, ICE extended deportation authority Yet through 2008, ICE overspent by at least $50 to the sheriff after he sought re­election on a million in program costs. nationally publicized anti­immigrant platform. ICE fact sheets incorrectly tout the 287(g) ICE granted the largest and most powerful 287(g) program as a net money saver. contract to Sheriff Joe Arpaio of Maricopa County The program in Arizona after mismanaged jails cost his county purportedly saved Arizona $9 million by over $43 million in death and abuse lawsuits; and accelerating the removal of immigrants from after he trespassed into neighboring jurisdictions the prison system. But this truncated economics to unlawfully dump immigrants at the border for does not count the $30 million in state monies deportation. appropriated from 2007 through 2009 to fund partnerships with ICE. With a $2 billion budget Traffic violators and day laborers are the program’s deficit, among the largest for any state in the central targets. ICE asserts that the 287(g) program nation, Arizona has yet to fully itemize the costs of is not designed to crack down on overcrowded immigration enforcement. And despite infusions of apartments, day laborer activities, or traffic offenses. state cash, Maricopa County accrued a $1.3 million Yet ICE has deputized the Missouri State Highway budget deficit in the program’s first three months. Patrol, an agency whose core mandate is to enforce the traffic laws. Sheriff Arpaio summarizes the 2 LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement Under 287(g), state and local governments Revenue Service, the deportation authority wielded essentially sign