Guest post by Sumona Gupta. Sumona is a Socio-Legal Studies student at the University of Alabama in Tuscaloosa, Alabama. Her work and studies center on immigrant rights in the Southeastern U.S.

In early May, a bill created to ban sanctuary cities from the state of Florida passed the state’s Senate vote, bolstering the controversial and ineffective Secure Communities Program. It is expected to be signed into law by Governor Ron DeSantis, who made outlawing sanctuary cities in Florida one of his key campaign promises. The bill, called SB 168, would require local governments to use their ‘best efforts’ to support federal immigration enforcement authorities. This would include forced compliance with “detainers” - requests from Immigration and Customs Enforcement (ICE) authorities to temporarily hold arrestees suspected of entering the country illegally. Akin to Texas’ anti-sanctuary law, SB 4, Florida’s bill proposes to give the state power to suspend or remove from office local officials that do not comply with federal authorities.

The passage of SB 168 was highly contentious. Both sides combined emotional appeals with rational arguments in their push for or against the bill. Parents whose son was killed by a twice-deported undocumented man spoke before a committee, urging them to pass the bill. Then, two young girls spoke to the same committee about the struggles of their Honduran immigrant parents, asking the opposite. Over one-hundred business leaders signed a letter telling lawmakers that the bill could irreparably harm the state’s agricultural and construction industries. State Senator Joe Gruters said the bill was not meant to target law-abiding immigrants, but rather that it was only ‘about public safety.’ This statement was one further reiteration of the oft-repeated right-wing narrative that sanctuary city policies allow for criminal aliens to go undiscovered and unpunished by law enforcement.

This argument is not new, however. It has its roots in longstanding xenophobic assumptions of immigrants as criminals. Curbing immigration and controlling immigrant populations because of their perceived criminality has occurred with each successive wave of immigration to the U.S. - first, with the influx of Irish and Chinese immigrants in the 19th century, then later with Italians and Eastern Europeans, and today with Latin-Americans. However, research has consistently disproved the notions that immigrant populations are more criminal than native-born ones or that sanctuary cities enable crime by immigrants. But tying immigrants to crime has now reached past political rhetoric, as immigrants are not only considered more criminal, but are treated as such by immigration enforcement authorities through the adoption of criminal prosecution and detention methods.

Sanctuary policies are meant to counter the ‘crimmigration’ paradigm which includes the Secure Communities Program. U.S. law enforcement is somewhat unique in its decentralized nature – police and localities are usually given more latitude when it comes to setting their own procedures for participating in enforcement of federal immigration laws. Though immigration enforcement is meant to be carried out by federal authorities in the U.S., the Department of Homeland Security sought to convince states and local law enforcement agencies that they were required to fully participate in its new program Secure Communities beginning in 2008. When a person is arrested by state or local authorities for a criminal offense, their fingerprints are taken and submitted to the Federal Bureau of Investigation for a criminal record check. Under Secure Communities, the Department of Homeland Security (which oversees ICE) also receives those fingerprints automatically. ICE checks the prints with its databases and sends a request for local authorities to detain suspected aliens. These requests, called ‘detainers,’ remain for a period of 48 hours in which the suspect may be moved into federal immigration custody and deportation proceedings. The detainer can remain even if they have paid bail or would otherwise be deemed eligible for release.

When it was first implemented, the stated goals of Secure Communities were to ‘[p]rioritize enforcement actions to ensure apprehension and removal of aliens convicted of serious criminal offenses,’ and ‘[t]ransform criminal alien enforcement processes and systems to achieve lasting results.’ The latter goal was mostly met. By 2013, thousands of police jurisdictions, formerly varied in their procedures for reporting undocumented arrestees, had common procedures to follow. They responded to ICE detainers, allowed ICE to interview detainees, and routinely transferred target immigrants to ICE.

The former goal of Secure Communities, to target serious criminals for removal, was decisively not met. The majority of deported immigrants arrested through the program between 2008 and 2018 were either non-criminal offenders or had been accused of ‘low-priority’ crimes like gambling, bribery, or health and safety violations. The peak level of immigration detainers was reached in 2011, with over 20,000 issued monthly. A 2014 study found, however, that the program had no observable effect on the overall crime rate.

By 2012, the Secure Communities program and detainers issued by ICE had already been challenged. Citing a loss of trust from immigrant communities or the costs and illegality of detainers, jurisdictions attempted to limit their role in the program and adopted what would be considered sanctuary policies. Immigrant rights groups, working with some local and state legislatures, brought lawsuits against the practice of detainer requests in federal and state courts. They put forth that they are a violation of the U.S. Constitution’s Fourth Amendment, which affords protections against ‘unreasonable searches and seizures’ without a valid judicial warrant. In the wake of favorable court rulings to the advocates that reaffirmed the unconstitutionality of detainers, many cities throughout the country adopted anti-detainer policies – policies limiting to a minimum when local law enforcement could respond to detainer requests and release individuals to ICE. These cities were described as sanctuary cities like those that had in the 1980s and 1990s adopted policies more generally limiting city involvement in immigration enforcement. The extent to which these new anti-detainer policies limited cooperation with ICE varied. Some cities went further, adopting policies that required police to never question a person’s immigration status during an arrest or refused ICE agents access to interview suspects in jails without a warrant.

The political effectiveness of these lawsuits and anti-detainer policies was soon to be seen. Following pressure from immigrant rights groups and law enforcement agencies, then-President Obama announced that he would replace Secure Communities with the Priority Enforcement Program (PEP) in 2015. It limited the number of detainer requests ICE could issue for people not suspected of violent crime. Jurisdictions with sanctuary policies complied with PEP without much issue and the number of detainers issued sharply declined.

However, on January 25, 2017, President Trump issued an executive order reinstating the Secure Communities Program. Police organizations and researchers alike have found the program has a ‘chilling effect’ on immigrant cooperation with police, especially for already-vulnerable immigrant victims of domestic violence. Collateral effects of the heightened climate of fear of deportation also include fear of seeking medical care, or attending school. But the program is still in effect as of 2019 and the majority of deportees are still low-level offenders or have not committed a criminal offense at all.

Sanctuary cities do not have a single legal definition, but they are unified in the fact that they prevent overreach of the Secure Communities Program. More broadly, they can be a show of support from local authorities and a greater community. Disallowing them entirely, as Florida and eleven other states have, sends a clear message with the opposite intent.

But this does not signify an end to sanctuary policies. A roughly equal number of states (including Oregon, California, and Vermont) have limited cooperation with ICE to different extents within their borders. Oregon passed their first sanctuary law over thirty years ago and it has remained even after a 2018 ballot initiative to repeal it. Though California’s law has not been fully complied with throughout the state, total ICE arrests in local jails decreased by 41% just five months after it went into effect in 2018. This separation of criminal and immigration law enforcement reflects what sanctuary cities are intended to achieve, only on a larger scale – to reduce the ‘chilling effect’ and promote trust and cooperation.

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How to cite this blog post (Harvard style) 

Gupta, S. (2019) Florida’s Sanctuary City Ban and the Issue of Required Police-ICE Cooperation. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/07/floridas (Accessed [date])