By ROBERT MORGENTHAU
Arizona’s new immigration law has been roundly criticized for encroaching on the federal government’s authority to enforce immigration laws. It requires police to demand documentation from an individual when they have a “reasonable suspicion” that a person is here illegally. Arizona’s own police chiefs association opposes this entanglement of state law enforcement with federal immigration policy on the grounds that it will undermine the public’s trust in local officials.
Arizona isn’t alone in involving local officials in federal immigration policy to an unwarranted degree. Federal immigration officials are active in 300 local jails and nearly every state prison in the country as part of the Criminal Alien Program, which is designed to identify potentially deportable inmates.
Although the precise method of operation of the program varies across communities, the basic strategy remains the same: Federal immigration officials are allowed access to information about foreign-born inmates in local jails, either through in-person interviews with inmates or through access to local databases. This allows them to quickly identify inmates eligible for removal. Strikingly, 48% of all deportable immigrants identified by U.S. immigration officials in 2009 were discovered as a result of this program, according to an October 2009 report issued by U.S. Immigration and Customs Enforcement.
Even New York City, which has long had a reputation as a welcoming place for immigrants, works with federal immigration officials, providing them with direct access to the Department of Corrections’ database that contains information on foreign-born arrestees housed in city jails. Federal Immigration and Customs Enforcement (ICE) officials maintain an office of 15 agents at the city’s largest jail, Rikers Island, where they routinely interview newly booked inmates. In 2007, ICE officers interviewed approximately 4,000 Rikers inmates. Once ICE officers identify potentially deportable inmates, they issue an immigration “detainer”—an official request that local officials notify ICE prior to releasing an inmate so that the inmate can be transferred into ICE custody for potential deportation.
In 2007 alone, ICE initiated deportation proceedings against 3,212 inmates being held at Rikers. Some 13,000 Rikers inmates have been identified by ICE as potentially removable since 2004. This includes not just undocumented immigrants but lawful, permanent residents and those with valid claims to remain here.
The close relationship between ICE and the Department of Corrections drastically alters the normal course of operations at New York City’s jails. Typically arrestees remain in jail until the city relinquishes custody, which can happen for a number of reasons: the inmate is released on his or her own recognizance; the inmate posts bail; the charges against the inmate are dropped; or there has been a finding of guilt or innocence. However, an inmate subject to a detainer is held in jail by the Department of Corrections for 48 hours past this date—even in the case of dismissed charges or an acquittal—to give federal immigration officials an opportunity to assume custody of the individual.
The city bears most of the expense of holding the inmate for the 48 hours. The issuance of immigration detainers also discourages inmates from posting bail, even when they can afford to do so, because inmates subject to detainers who succeed in posting bail are transferred directly into federal immigration custody. Thus the city also bears the expense of housing those inmates who would otherwise be out on bail. This costs the city at least $150 per inmate per day according to the Department of Corrections.
The New York City Bar Association has also argued that the use of immigration detainers lowers the rate of participation in the city’s alternative-to-incarceration programs because judges and prosecutors are quick to assume that immigrants subject to detainers are ineligible for such programs. These alternative programs reduce recidivism and lower costs to the criminal justice system.
But by far the most severe consequence of the city’s cooperation with federal immigration officials is the lack of trust in law enforcement that it creates among the public. A spouse, for example, may be reluctant to report abuse if she fears that the consequence will be deportation of the father of her children. When immigrants perceive the local police force as merely an arm of the federal immigration authority, they become reluctant to report criminal activity for fear of being turned over to federal officials. Given that immigrants (legal and illegal) currently comprise 36% of the city’s population, this unwillingness to cooperate with local law enforcement presents an obstacle to stemming crime in the city as a whole. That’s why during the 35 years I was district attorney in Manhattan, I made it a policy never to turn over names of individuals involved with the criminal justice system to immigration authorities until after they were convicted of a serious crime.
Charges are ultimately dropped against a significant percentage of arrestees in the city’s jails. In 2009, for example, charges were eventually dismissed in 34% of all cases arraigned in criminal court in New York City. Federal law provides that lawful permanent residents with green cards can be deported if they are convicted of certain offenses—including aggravated felonies and the vast majority of controlled substance offenses. But in New York City, ICE officials have access to foreign-born inmates from the moment they are booked into the city’s jails, regardless of whether charges might later be dropped. This early involvement of federal officials is unwarranted and imposes considerable costs monetarily and in terms of public perception.
No one disputes that the names of violent offenders should be turned over to federal immigration officials, but the current approach treats those charged with petty offenses (and those who may not be guilty of any crime) in the same manner as convicted felons.
A more nuanced approach to cooperation between local authorities and federal immigration officials—in which only the names of those convicted of violent crimes were turned over to ICE—would avoid this problem. It would go a long way towards separating the roles of local police and federal immigration authorities in the eyes of the public, and would encourage more inmates to post bail, thus reducing costs to the city. New York authorities should make clear they do not approve of the haphazard and sometimes cruel way that federal immigration policy is enforced.
Mr. Morgenthau, district attorney of Manhattan from 1975 until 2009, is currently of counsel to Wachtell, Lipton, Rosen and Katz.