Sen. Koch has introduced SB 196 imposing duties on prison superintendents and jail commanders to assist the federal government in enforcing immigration laws. It requires the person in charge of a jail, prison, correctional facility or other place of detention to “attempt to determine” a person’s residency status by asking the prisoner or by examining “relevant documents.” (Relevant documents are undefined.) If the person in charge of the detention facility is unable to make a determination, he or she is to check with Immigration and Customs Enforcement (ICE) and report the person’s presence to the Department of Homeland Security (DHS). (Oddly, this requirement is triggered only if the person in charge is unable to make a determination. I’m not sure if there is a reason why it’s not drafted to also require notification where the person in charge determines that the inmate is not here legally.)
If DHS requests a custodial interview, the detention facility is required to accommodate the request within 24 hours. If DHS notifies the detention facility that the inmate is the subject of a detainer, the person in charge of the detention facility (not DHS or ICE) is required to go to the local court and ask for a hearing concerning the detainer and, if the court determines that the inmate is the person who is the subject of a detainer, order the person held for an additional 48 hours.
The fiscal note does not address as potential local expenditures the costs of legal fees required to go to court with one of these petitions or the costs of Fourth Amendment lawsuits if it turns out that the federal detainers were not supported by probable cause. And often times they aren’t:
Federal courts agree that holding someone on a detainer after they have concluded their local or state custody constitutes a new arrest that must meet Fourth Amendment requirements. As discussed further below, most holds pursuant to ICE detainers do not satisfy the Fourth Amendment.
. . .
The Northern District of Illinois has ruled that detainers issued out of the Chicago Field Office (covering at least six states and sometimes more) because they exceed ICE’s own statutory arrest authority, although a request for a stay of the order revoking all the detainers has been filed, pending an appeal. This holding so far only applies to the Chicago Field Office, but its analysis is national, so any jail holding people on ICE detainers is risking liability for that detention.
Local jails and sheriffs have been held liable for unlawful detention and violation of the detainee’s Fourth Amendment rights because of unlawful detention based on ICE holds. 8 Moreover, many jails have been held liable or forced to settle with U.S. citizens that they unlawfully held on immigration detainers.
(The memo I’m quoting here is a couple of years old and isn’t from a neutral source, so you can quibble with whether or how much it’s overstating the case, but the issues it raises and the cases it cites are real.)
I don’t want to get into the ways in which federal immigration law is problematic, and state law already requires that local government not interfere with federal enforcement of immigration law. That’s a legitimate policy choice. This, however, puts local jails in a bad spot if the federal government isn’t doing its job. Like I said, if the detainers are not based on probable cause, the local government might be on the hook for holding the inmate without legal authority to do so. A jail might defend on the basis that the state court issued a 48 hour holding order — but I’m not sure if that would be sufficient. The proposed legislation does not contemplate a court making a determination on the legal sufficiency of the detainer — just whether the inmate’s identity is correct. And there are going to be legal expenses associated with preparing a petition, going to court, and explaining the law to the judge. These expenses are imposed entirely on the person in charge of the correctional facility.
Seems to me that the better way to accommodate the federal government while not burdening local government is to notify the federal government of the inmate’s presence and leave it up to the feds to go to court to get the hold order. They’ll presumably have much better access than state or local government to the information supporting a probable cause determination.
Update: It occurred to me that, because the inmate’s liberty is at stake, in all likelihood, the County will also have to pay for the inmate to have a public defender if the inmate is unable to afford one — and that’s probably going to be a substantial percentage of the inmates in this situation.