On March 27th, the American people witnessed something remarkable: the country’s Top Cop went on national TV and demanded that our state and local officials violate the constitution…or else. Attorney General Jeff Sessions threatened to cut off federal crime-fighting funds from so-called “sanctuary cities” that refuse to honor immigration hold requests from Immigration and Customs Enforcement (ICE). These immigration hold requests, often called “ICE Detainers,” ask local jails and prisons to detain certain people up to 48 hours beyond their original release date (not including holidays or weekends) so they can investigate their immigration status.
So, what’s wrong with that? To start off with, imprisoning someone after they’ve served out their sentence or posted bond is unconstitutional. Detaining someone beyond their release date is essentially a second arrest, and for that you need to have probable cause to believe that the person has committed a second crime. However, ICE detainers are often based on nothing more substantial than a suspicion that a person might be undocumented, which is not a crime in of itself. In America, we don’t arbitrarily imprison people based on mere suspicions—we require evidence and due process. Federal courts across the country have affirmed this principle many times over.
One might even hope that New México’s example can help instruct Sessions on what respect for the law, Constitution, and basic human decency looks like.
We’ve already seen negative outcomes from ICE detainers right here in New México. Just five days before AG Sessions delivered his televised threats, a federal judge approved a settlement stemming from the illegal detention of a Farmington woman in the San Juan Detention Center per the request of ICE in 2012. Under the terms of this settlement, New México taxpayers could be on the hook for nearly $750,000—a price we can ill afford given our state’s current budget woes.
Beyond the fundamental unconstitutionality and costliness of these types of immigration holds, detainers also threaten our communities’ safety. When jails do ICE’s unconstitutional bidding and become proxy immigration agents, it undermines trust in police. How willing would you be to go to the police to report a crime if you believed it could result in your family being torn apart? This reluctance within immigrant communities to report crimes is already in evidence in places like Los Angeles, where the police chief found that since the beginning of 2017 Latino/a residents reported 25% fewer sexual assaults and 10% fewer incidences of domestic violence compared to the same period the previous year.
So, if ICE detainers are unconstitutional and actually make us less safe, what’s really going on here? We see Sessions’ threats for what they are: part of the Trump administration’s larger campaign of attacks on people of color, on immigrants, and on Muslims. By stoking fear and xenophobia, President Trump and AG Sessions are trying to distract and divide us so that we will lay blame on groups of people, rather than on failed policy, for unemployment and crime. The vilification of immigrants and minorities has been tried many times before in American history and it always fails because ultimately people understand that our nation is strengthened and enriched by hard-working new Americans.
So, to put it in terms that Jeff Sessions, the former Senator from Alabama, might understand: that dog just won’t hunt. By and large, New México has resisted involving local law enforcement with other people’s anti-immigrant agendas, and we shouldn’t let bullying and bluster from the Trump administration change that. One might even hope that New México’s example can help instruct Sessions on what respect for the law, Constitution, and basic human decency looks like.
Peter Simonson is the executive director for the American Civil Liberties Union (ACLU) of New México.