Post by Peter Mancina and and Angela Chan. Peter is Research Associate at the Centre for Criminology and Book Review Editor at Border Criminologies. Angela is the Policy Director and a Senior Staff Attorney managing the Criminal Justice Reform Program at Asian Americans Advancing Justice -- Asian Law Caucus in San Francisco, California. Peter tweets @PeterMancina.
In October 2017, California Governor Jerry Brown signed into law the “California Values Act,” also known by its legislative bill number SB 54, authored by Senate President Kevin de León, to limit local and state law enforcement entanglement with immigration enforcement. This sanctuary state law restricts local law enforcement agencies (LEAs) in California from expending agency resources for the purpose of assisting U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) in identifying, detaining, arresting, and transferring custody of immigrants to these agencies for deportation purposes.
In its first five months from January 2018 to May 2018, SB 54 implementation led to a 41% decrease in ICE arrests at local jails compared to the immediately preceding five months from August 2017 to December 2017. This stands in stark contrast to the anti-sanctuary state Texas which saw a 4% increase in ICE arrests in local jails over the same time period.
Notwithstanding its immediate impact in substantially reducing immigration arrests in local jails, implementation of SB 54 remains largely partial and unfinished. This report co-published by Border Criminologies, the Oxford University Centre for Criminology, and Asian Americans Advancing Justice-Asian Law Caucus examines publicly disclosed documents from 169 California LEAs. The report finds that 23 use out-of-date, pre-SB 54 immigration enforcement-related policies or post-SB 54 policies that nonetheless include out of date provisions or which omit major new prohibitions. Also, 40 additional LEAs use policies primarily drafted for them by a private company, Lexipol, which are not in compliance with the law. Finally, 5 LEAs have no immigration enforcement-related agency policies. In total, 68 out of 169 LEAs, about 40%, were out of compliance with SB 54.
This report also finds many LEAs attempted to neutralize the effect of SB 54 by exploiting an exception in the law. Under SB 54, LEAs can only provide release date information to ICE or CBP if detainees meet certain criminal history related requirements, or if the information is already available to the general public. Twenty-four out of fifty-eight, or 41%, of Sheriff’s Departments have taken advantage of this latter exception by posting on their department websites release date information for individuals in their custody in advance of their release, upcoming court hearing dates and locations, and detainee personal information including city of residence and occupation. This practice provides ICE an opportunity to detain and deport people at the point of release from LEA custody even though the individual may not have the criminal conviction history that would allow LEAs to conduct an in custody transfer to ICE or directly notify ICE of the individual’s release date. A number of Sheriff’s Departments began posting this information only after passage of SB 54.
In addition to publicly posting release information, some LEAs also have tried to get around SB 54 by allowing ICE to enter non-public, secure areas of jail facilities to effectuate immigration arrests at the time the individual is required to be released in the criminal matter. Given that in these “releases,” there is no effective break in the chain of custody from LEAs to ICE, these arrests are de facto in custody transfers that nonetheless likely are not recorded or reported as such to the California Attorney General as a part of annual reporting mandated by SB 54. This is the case because the Attorney General’s instructions to LEAs for reporting statistics on LEA transfers of individuals to ICE only require LEAs to report transfers that are based in an individual's qualifying criminal convictions and arrests codes logged in jail databases. LEA officers additionally violate the law in a variety of ways. Officers and Deputies continue to ask people about their immigration status; provide a wide range of information to ICE beyond release date information; detain people in jails for immigration enforcement purposes beyond the time when they would otherwise be released; provide space to ICE in LEA facilities for their exclusive use; and perform the activities of immigration detention officers and patrol the border.
To ensure full compliance with SB 54 and to build on the law’s existing protections by further disentangling LEAs from immigration detentions and deportations, this report recommends that the California legislature, Governor, and Attorney General take the following actions.
1. Discontinue information sharing with ICE
Although SB 54 places limits on LEAs sharing release date information, this report finds that a number of LEAs are exploiting exceptions in the law. To prevent the exception from becoming the rule, California should remove SB 54’s exceptions for sharing release information based on criminal charges and convictions history or when the information is made public. The state should also prohibit ICE and CBP from accessing information in local and state criminal databases.
2. End LEA custody transfers to immigration authorities and prohibit LEAs from allowing ICE to enter non-public areas of jail facilities
Our review of public records obtained from LEAs has found that LEAs have transferred individuals to ICE in violation of the limits placed by SB 54 by providing ICE access to non-public, secure areas of the jail to effectuate immigration arrests of individuals when they are supposed to be released. We have also found that LEAs have transferred individuals to ICE even if they do not have qualifying criminal histories. We recommend drawing a clear line by prohibiting all LEA transfers to ICE.
3. Prohibit LEA involvement in joint law enforcement task forces that involve immigration enforcement as a purpose, activity, threat, or consequence
SB 54’s existing language pertaining to joint task forces with federal immigration authorities allows LEA officers to participate in joint task forces where the “primary purpose of the joint law enforcement task force is not enforcing immigration law.” However, there is no clear qualification for what makes a task force primarily focused on immigration enforcement. Recent publications that examine LEA joint task forces with ICE demonstrate that ICE strategically includes threats of immigration enforcement as a central component of their operations.
4. Prohibit LEAs from providing any jail facility space for use by ICE or CBP
In a number of cases, LEAs have been exploiting or violating a provision in SB 54 that prohibits
LEAs from providing ICE with "exclusive" office space. Some LEAs have continued to station ICE officers in dedicated offices close to or in release areas of their jails to facilitate their access to released individuals.
5. Prohibit all forms of LEA border policing
LEAs in California have continued to patrol borders with the guidance of CBP under the auspices of enforcing federal criminal law at the border. However, such border policing has served immigration enforcement efforts by turning LEA officers on patrol into de facto border guards.
6. Prohibit LEAs from providing backup services to immigration authorities during federal immigration enforcement operations
This report finds that LEAs continue to participate in immigration enforcement operations with ICE and to support immigration detention facilities by providing them emergency backup support and routine police services such as traffic control. These services ultimately aid in the enforcement of immigration laws and should be considered as part of LEA immigration enforcement activities.
7. Extend all SB 54 protections to state prisons
SB 54 broadly governs local and state law enforcement cooperation in immigration enforcement efforts, however, it only minimally intervenes in the practices of state prisons. SB 54 requires the California Department of Corrections and Rehabilitation (CDCR), which operates state prisons, to provide individuals in their custody with written consent forms prior to providing ICE access to interview these individuals. However, there are no limits placed on CDCR transfers to ICE custody and communication of release dates to ICE. This is especially concerning as individuals who are released from state prison have either served their prison sentence or earned parole through a rigorous review process by the Board of Parole Hearings and the Governor’s Office. For these individuals to be released by CDCR directly into ICE custody subjects these individuals to double punishment and does not allow them an opportunity to be reunified with their communities and families.
8. Ensure compliance with SB 54 through investigating violations and imposing financial penalties.
The California Attorney General plays a crucial role in ensuring that LEAs comply with the intent and the letter of SB 54. The California Attorney General should use this report to reach out to specific LEAs to notify them of their need to modify their policies or to adopt new policies to bring them into compliance with SB 54. The Attorney General should also should establish a process for receiving and reviewing complaints of violations of SB 54 from the public. Finally,
SB 54 should be amended to allow the Attorney General to levy fines against LEAs that violate the law’s provisions. A complete list of legislative, executive, and oversight actions to implement this report’s recommendations is included at the end of this report.
To read the full report, you can download it here.