Sanctuary Cities: Past, Present and Future

As tragic as the death of Kate Steinle in San Francisco is, her murder at the hands of an illegal immigrant does not stand alone in this country this year.  Although not all of them are attributable to the sanctuary status of the jurisdiction, such status is a lure for illegal immigrants.  Unfortunately, many have moved on to other stories.

There is no legal definition of a sanctuary city.  Open any law book and you will not find it.  Theoretically, they are themselves unlawful under the 1996 immigration law.  Yet, some 276-300 jurisdictions exist.  The practice started in 1979 in Los Angeles when the city issued a directive to the police that they were not to inquire of the immigration status of any detainee or person arrested.  It was the 1996 immigration reform efforts that allegedly put an end to the practice.  However, there were enough loopholes in the law that on a practical and operational level, they continued and grew in number.  In 2006, in response to high profile deaths at the hands of illegal immigrants, the US Congress, led by Tom Tancredo, introduced legislation to crack down on these cities and counties, but the legislation went nowhere.  To be fair, although many rightfully point the finger at Obama, the practice of the federal government turning a blind eye began in the Clinton administration.  The fact remains that the federal government under Clinton, Bush and Obama have never punished sanctuary jurisdictions nor have they held back federal law enforcement assistance funds.  In fact, some jurisdictions receive specific funds through the Justice Department to assist ICE in holding suspected illegal immigrants despite being a sanctuary city.  Obama has only taken the practice to new heights through his executive orders.  Another perfect example is Washington state’s Family Unity Act which specifically prohibits ICE officials from interviewing illegal immigrants in state custody while receiving over $2 million in grants from DHS to assist in this area.

The main feature, besides not asking about immigration status, is to simply ignore ICE detainers.  By not asking about their status, no information can be obtained.  If they have no information, they can pass on no information to federal authorities.  Regarding the detainers, there was one in the Steinle case but San Francisco got around that loophole by asserting that no accompanying arrest warrant was issued.  Under their ordinance, the perpetrator was released on the streets.  He was deported four times previous and reentered the country.

Therefore, it behooves this writer to understand why an arrest warrant must accompany the detainer in the Steinle case.  Did ICE officials fall asleep at the bureaucratic wheel, or was this just business as usual under the Obama administration?  Take the example of Philadelphia mayor Michael Nutter who recently issued this directive: ICE detainers would not be honored UNLESS the detainee was convicted, of a felony, involving violence, and accompanied by a warrant.  That is a lot of criteria to meet in order to honor that detainer that renders it simply a piece of paper.

To illustrate how the situation has gotten out of hand, in 2013 over 212,000 detainers were issued.  In 2014, that number dropped to 160,000.  Since Obama’s executive order and DHS’ directives, the number has dropped even further.  In just seven months of 2015, over 8,500 illegal immigrants were set free despite detainers.  Of that 8,500, over 7,500 new charges have been filed against these illegal immigrants.  That is an extremely high recidivism rate.

The immigration proponents will give varying reasons for sanctuary cities.  The first involves immigrant rights.  Generally speaking, immigrants should be afforded the same rights enjoyed by Americans with one very important exception: they should be legal immigrants.  Yes, those that enter this country illegally and without proper authorization or documentation are breaking the law by virtue of crossing that border and they leave any “immigrant rights” at the border.  The most common excuse is public safety and that inquiring about immigration status somehow interferes with community policing.  The theory goes that those here illegally will be less than cooperative in reporting crimes they witness.  But these are usually the same proponents who claim that crime in immigrant communities is not statistically different than crime figures in the broader community.  Also, the rate of reporting crime within the Hispanic community- legal or illegal- is no different than that of the general population.

The third argument is that immigration enforcement is not a local or state function.  True enough, but nothing whatsoever prevents local and state governments from assisting the federal government.  While hiding behind this fact to avoid enforcement, they then create their own immigration laws through ordinances.  An ICE detainer asks them to hold the person for up to 48 hours until they can take custody of the person and start deportation action.  While the federal government cannot commandeer local or state jails, they can compensate them for holding these people for up to 48 hours thus getting around the commandeering problem.  One of the silliest arguments I have heard is that illegal immigrants bring business to communities which justifies their existence in sanctuary cities.  If that is he case, why even have immigration laws?  The final reason is that enforcement will necessarily lead to constitutional violations and racial profiling.  This again is ludicrous.  If here legally and law-abiding, they have nothing to worry about.

To illustrate how the Obama administration has exacerbated the problem, they now intervene on behalf of the illegal immigrant, by NOT enforcing alleged prohibitions on sanctuary status.  ICE itself, after his executive order, defines detainers as “voluntary.”  In the vast majority of cases, they do not or fail to issue an accompanying arrest warrant.  The government has even refused to support ICE when they are sued by illegal immigrants or advocacy groups over detainers.  This is not prosecutorial discretion; this is flouting the actual law.  Some governors have become slick in this area by pardoning illegal immigrants for the crimes committed within their borders.  Before leaving office, New York Governor David Paterson actually created a special commission dedicated to pardoning illegal immigrants so that they can avoid deportation upon release.

Unlike Donald Trump and others, this writer does not believe that there are hordes of rapists and murderers crossing the border in a concerted effort.  By the same token, one cannot deny that rapists and murderers are entering the country with impunity while the federal government stands with their hands in their back pockets.  The whole idea behind immigration laws is to provide order and to screen out the actual or potential bad eggs.  Under Obama, we have more disorder and chaos and more bad eggs.  Federal law, especially immigration law, falls under the Supremacy Clause.  States and local governments cannot take action to thwart those laws.

The solution starts by holding back federal law enforcement funds to sanctuary cities, but it must go further.  More importantly, any jurisdiction should not receive funds of any kind (including HUD, HHS, etc. funds) unless and until they conform with federal laws and honor detainers issued by ICE that should not be “voluntary.”  Detainers should automatically be accompanied by an arrest warrant if that is the problem.  The federal government should compensate state and local governments for that 48 hours of incarceration.  Deportation hearings must be swift and objective.

If you are here illegally, it is the task and duty of the federal government to act.  If you are here illegally and commit a crime, it is the duty of the state to cooperate with the federal government and the duty of the federal government to act and not act selectively.  Before any immigration reform effort is discussed or any wall/fence built or any National Guard troops deployed to the border, Congress should and must close this loophole.  Let us see how welcoming these jurisdictions really are when they lose federal aid across the board.

Kate Steinle is only the latest example of a problem gone seriously awry.  There will be more Kate Steinle’s in the future and there will be outrage and people politically scoring points until sanctuary cities are a thing of the past.  Jeh Johnson and Barack Obama partially have the blood of victims on their hands.  An ounce of prevention is worth a pound of cure and less dead bodies.

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