Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.
Here’s how immigration enforcement changes when a whole state tries to become a sanctuary.
In late 2017, California’s then-Governor Jerry Brown signed a package of “sanctuary” bills that included SB 54—the first statewide bill of its scope limiting local and state cooperation with federal immigration enforcement. The Justice Department, under Jeff Sessions at the time, immediately sued, and lost. (It has since appealed the decision.) The law also met with resistance from a smattering of cities—turning the state itself into a legal battleground.
Now, a new report assessing the impact of the law finds that while SB 54 has already made a dent in decreasing immigrant arrests in the state, many local law enforcement groups are finding ways to circumvent it. The findings reinforce the notion backed up by previous research that America’s deportation dragnet would not be as extensive if local officials declined to participate. But it also gives insight into the breadth of subtle ways many local agencies currently assist federal officials—and the challenge for a state wanting to curb that cooperation.
“The law does have an impact,” said Angela Chan, a policy director and senior staff attorney at the civil rights group Asian Americans Advancing Justice-Asian Law Caucus (AAAJ-ALC), which co-authored the report with criminologist Peter Mancina. “It could have a greater impact if all law enforcement complied.”
The authors wanted to examine SB 54 because it’s the most expansive law of this kind in the country, affecting over 350 local institutions—police departments, state law enforcement, school and university police departments, and sheriff’s offices. While federal officials encourage and rely on local jurisdictions to act as “force multipliers” in making immigration arrests, California’s law pushes these agencies in the opposite direction: It limits local and state institutions from using public funds to identify, arrest, detain, or transfer suspected undocumented immigrants.
To assess the law’s impact, the authors reviewed ICE arrest data compiled by Syracuse University’s Transactional Records Access Clearinghouse (TRAC). They found that total arrests at local jails in California decreased by 31 percent in first five months of 2018 when SB 54 went into effect, compared to the same period in 2017. This drop in jail arrests made up almost three-quarters of the total decline in ICE arrests in this period. In states such as Texas that have instead instituted anti-immigrant laws, these type of arrests went up in the same time period.
The authors sent out public records requests to all of California’s police departments and sheriff’s offices. After reviewing responses from 169 law enforcement agencies (121 police departments and 48 sheriff’s offices), they found that many local governments had adopted new policies and practices that violated SB 54, failed to update old ones on the book, or didn’t have a policy at all. Overall, 40 percent of the 169 agencies analyzed were out of compliance, per the report. An additional 23 law enforcement agencies in California had out-of-date policies or new policies with out-of-date provisions. Huntington Beach, which sued the state regarding its sanctuary policy and won, was among them. (The state has since filed an appeal.)
In the case of 40 law enforcement agencies, the language for the new policies came from Lexipol—a private company that sells policy templates to 3,400 public safety agencies around the country. Mancina and Chan argue that these policies, as of summer 2018, were too vaguely worded and enabled local law enforcement to violate SB 54.
Lexipol declined to provide CityLab with the latest “immigration violations” policy they have been providing local law enforcement, but said that it was last updated in September 2018. The company insists that this policy is on solid legal ground.
“At Lexipol we draw on our vast subject matter and legal expertise—which reflects more than 2,000 years of public safety and legal experience—to evaluate legislation and draft needed policy updates,” Shannon Pieper, the director of marketing communications, told CityLab via email.
A key part of SB 54 prohibits local law enforcement from sharing information on the date, time, and location of release from jail of an individual with immigration authorities. Law enforcement is, however, exempt from this data-sharing restriction if the immigrant in question has committed, or has been charged with, certain types of crimes; or, if the information about the individual’s release has already been made public. The report finds that many local agencies exploited this loophole to circumvent SB 54 after the law was passed. Sheriff's departments in 24 counties posted information about the release and court hearings on jail websites for individuals in their custody. In liberal-leaning Marin County, the sheriffs decided to do this despite the reticence of the county board.
“I just think as a general rule if you violate the law and you get arrested, you ought to be scrutinized by ICE,” Sheriff Robert Doyle told the San Francisco Chronicle in 2018. “That’s always been our policy.”
But that policy could land Marin County in legal hot water. It can be argued, Chan said, that Marin County violated SB 54 by using its resources to purposefully release information about immigrants in its custody after SB 54 was passed.
There are many such indirect ways that local law enforcement in California facilitate ICE’s job. The report notes how many provide spaces in jails where ICE can pick up and process immigrants; other agencies provide back-up security or traffic control for ICE operations; some detain individuals in their custody suspected of being undocumented beyond their release date (even though several courts have ruled against that practice). Some counties near the border also collaborate with Customs and Border Protection (CBP), the report found. San Diego, for example, may potentially be violating SB 54 by seeking help from CBP for local law enforcement or by participating in Operation Stonegarden, which provides local law enforcement grants to cooperate on issues of border security.
“What they say is that we're working with CBP on criminal—not civil—[immigration] law enforcement,” Chan said. “That seems to be dancing on the edge of what they’re allowed to do.” (A spokesperson from the San Diego’s Sheriff’s office maintained that its policies are compliant with SB 54, and pointed to a fact sheet spelling out the “dos” and “don’ts” for its officers.)
“Reports like this are out of touch with the real-life consequences laws like SB 54 have on public safety,” said Nathalie R. Asher, acting executive associate director for ICE’s Enforcement and Removal Operations, via email. “Every time ICE lodges a detainer on a criminal alien and that alien is released without notification, it’s a gamble on whether or not that criminal alien will commit additional crimes or harm others.”
But proponents of SB 54-type laws also cite the same reason—public safety—for their support of such policies. Local law enforcement can dole out adequate punishment if a person commits a crime, they argue, and the immigration enforcement apparatus should do its job in a separate realm; entwining the two doubles up the punishment and causes a “chilling effect” on immigrant communities, stopping them from coming forward to report crimes. To that end, the authors of this report recommend strengthening and clarifying SB 54 to do away with any ambiguity about what law enforcement is allowed or not allowed to do.
“You want a really bright, clear rule: No ICE holds—period; no ICE transfers—period; No providing release dates—period,” Chan said. “Because when you start adding exceptions, [some local law enforcement agencies] are going to start using those exceptions and turning them into the rule.”