Back in April 2017, the process was pretty smooth.
When the Pima County jail was about to release somebody whom Immigration and Customs Enforcement wanted to detain, the jail would call the federal agency. ICE would send contractors to pick up the detainee, then take them to Eloy or another immigration detention center.
That month, I witnessed one such transfer, of a man living in Tucson who had been deported four times and was rearrested after being stopped for having a cracked windshield, then giving a false name.
But that system was only about 90 percent effective, Sheriff Mark Napier said. Sometimes, ICE didn’t send anyone in the couple of hours they had before the inmate was released.
So since then, Napier and the jail’s commander, Deputy Chief Byron Gwaltney, have given ICE a desk in the jail to help facilitate handovers from the county to the feds. Now the effectiveness rate is about 100 percent, Napier told me.
“We were working pretty well, but that 10 percent bothered me because I didn’t want to put public safety at risk,” Napier said.
With ICE under massive political criticism, though, the decision is not sitting well with Pima County Supervisor Richard Elías, the chairman of that board. It brings up an almost unresolvable dilemma — how to protect the public from accused undocumented criminals while also standing up to an agency increasingly violating American values like due process.
Elías has been hearing regular complaints about having immigration agents in the jail from those who want to abolish ICE. He noted that while in jail, inmates are like “chattels,” the complete responsibility of the county, not any other agency. And he doesn’t like that ICE has been invited into the jail without a formal agreement that would have to be approved by the board.
He’s right to question the arrangement. These days, we can’t really trust ICE to make the decisions as American society would prefer. The Los Angeles Times reported in April that since 2012, ICE has been forced to release about 1,500 people in its custody after discovering the people were actually citizens or legal residents. One citizen was held for 3½ years.
Every day seems to bring a fresh ICE outrage. There was an undocumented deliveryman in New York City, married to an American citizen, and a father of American citizens, who was arrested when delivering pizza to an Army fort. A judge rejected ICE arguments and ordered him released on Tuesday.
The agency has repeatedly arrested people who show up at court, sometimes in Tucson, even if they are victims of crimes. The Department of Homeland Security said that is a policy of ICE, even though it may deter people from reporting crimes or otherwise seeking justice, which could give de facto impunity to wrongdoers who target undocumented people.
Overall, under President Trump, ICE has become an agency willing to flout common decency in its zeal to fulfill the president’s wishes. Its role in separating undocumented parents from children will be condemned by history.
However, those whom Pima County hands over to ICE tend not to be the more sympathetic cases. On July 12, Gwaltney took a statistical snapshot of those who had an ICE detainer in the jail, meaning they would be handed over to immigration authorities when their sentence was complete or when they were set for pretrial release.
The 70 detainees wanted by ICE represented 3.7 percent of the jail population. Of the 70, 69 were in jail on felony charges, and just one on a misdemeanor. Four, for example, are charged with first-degree murder, five with possession of narcotic drugs for sale, four with child molestation.
It’s understandable that Napier, an elected official, doesn’t want someone charged with a serious crime to get out of jail due to an oversight and then victimize local residents.
But even Napier acknowledges that the detainers issued by ICE don’t have the legal validity of an arrest warrant. That’s why he has refused to hold inmates with ICE detainers beyond their legal release times.
Under the previous arrangement, if ICE didn’t show up when inmates were ready for release, they were let go. Now, ICE is there and ready pretty much all the time.
Napier’s position on releasing inmates is a variation from the practice of some neighboring sheriffs and from ICE policy. ICE asks that sheriffs give the agency up to 48 hours to pick up an inmate, beyond the moment they are ready to be released. In general, in the borderlands, there are enough immigration agents around to make the handoff pretty quickly, but Cochise County Sheriff Mark Dannels said his office sometimes makes use of those 48 hours, billing the agency for any time his jail holds the inmate beyond his expected release date.
Napier’s problem is with using the ICE detainer as a valid reason to hold somebody. In fact, as ACLU attorney Billy Peard explained, ICE warrants are simply administrative demands made without a judge’s involvement. That, he thinks, is what makes ICE detainers invalid.
“They refer to it as an administrative warrant. Constitutionally, a warrant has a specific definition. The basic hallmark of any type of warrant is that it be issued by a ‘neutral and detached magistrate,’” he said. “It doesn’t have to be a judge, but it means someone who is neutral and someone who is detached. You can’t have a cop issue a warrant. You can’t have a cop’s supervisor issue a warrant.”
But functionally, that is how the system works. An executive branch agency’s demands stand in for a judicial warrant and, across the country, are largely obeyed.
I asked Napier if he would give extra consideration to the relatively few inmates with detainers who are not charged with serious or violent crimes, like the man whose handover I watched last year. An argument could be made, for example, for automatically handing over anyone accused of a felony but for judging those accused of misdemeanors on a case-by-case basis.
Napier told me he would not judge the list of people whom ICE has asked him to hand over. He wouldn’t, for example, ask that Gwaltney and the jail staff agree to hand over someone accused of sexual abuse but refuse to hand over an undocumented father of American citizens who is accused of driving without a license.
“They undergo an internal scrutiny process,” Napier said of ICE’s decision-making. “For me to second-guess that process, I would never do that, and I think it would be out of bounds.”
That, in essence, is what many of ICE’s critics would like Napier to do. They would like him to use his discretion to ensure that ICE doesn’t pull any of the excessive shenanigans that it has been indulging in under Trump.
I see the temptation of that demand — we want our local officials to protect us from over-aggressive feds, the same way we want the FBI, for example, to protect us from corrupt or abusive local government officials. But the principle is a dangerous one. What if gun-rights activists demand that a sheriff intervene between the citizenry and ATF agents enforcing gun laws?
The complications of the issue demand a broader hearing than it has so far been given. The sheriff ought to bring the issue of ICE’s presence in the jail to the board for an open discussion of what we as a citizenry are willing to engage in.
It’s a tough issue of politics and public safety that deserves an open airing and the involvement of more than just one county elected official, the sheriff, and his staff.