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North Carolina Sheriff Restricts Ties with ICE, but Colorado Sheriff Strengthens Them

Also today: Houston prosecutor’s bid to hire more prosecutors falls short

In This Edition of the Political Report

February 14, 2019:

  • Colorado: Teller County cooperates with ICE, but state legislation could forestall this

  • North Carolina: As ICE raids state, Forsyth County sheriff restricts cooperation with agency

  • Texas: Houston prosecutor’s bid to hire more prosecutors falls short

  • Legislative round-up: California, Michigan, and North Dakota debate the age of youth justice

You can visit the Appeal: Political Report website to read our latest analyses of the local politics of criminal justice reform and mass incarceration. You can also read the latest installments of the new series “The Contenders 2020: Criminal Justice in the Race for President,” written by my Daily Appeal colleagues. 

Colorado: Teller County cooperates with ICE, but state legislation could forestall this

Sheriff Jason Mikesell has put Teller County at the vanguard of ICE cooperation.

By the end of 2018, Teller was the only Colorado county to honor ICE detainers; these are warrantless requests that law enforcement continue detaining people past their release date, even if they have posted bail.

Mikesell then began 2019 by signing a 287(g) contract with ICE. Teller is now the only Colorado county that is participating in that program, which deputizes local law enforcement to research the status of people held at a county jail and to detain them over suspected immigration violations. Membership in 287(g) is unusual. Seventy-six jurisdictions nationwide have 287(g) contracts as of this week, and three of the program’s most populous member counties (North Carolina’s Wake and Mecklenburg, and Maryland’s Anne Arundel) quit as a result of the 2018 elections.

Critics of 287(g) say that local authorities should not be involved in enforcing immigration laws. “We should not be paying people or using our state to call and find something about somebody that we have no reason to know,” state Representative Adrienne Benavidez, a Democrat, told me.

Brendan Greene, the campaigns director of the Colorado Immigrants Rights Coalition, warned of the program’s impact on public safety. “When people know that contact with the sheriff will result in them being put in immigration proceedings, they will be afraid of calling the police and reporting crime,” he said. “This impacts women and survivors of domestic violence the most.” State Representative Leslie Herod agrees that 287(g) fosters mistrust toward law enforcement. “Communities shouldn’t be fearful of their local law enforcement agents and I think this will make them more fearful,” she said. When you talk about what keeps local communities safe, it’s partnerships with local law enforcement not fear of local law enforcement.”

In addition, the ACLU of Colorado is questioning the legality of Mikesell’s 287(g) contract. “We believe that state law gives sheriffs no powers to enforce immigration law,” said Mark Silverstein, legal director of the ACLU of Colorado. He argued specifically that “Colorado sheriffs don’t have the authority to execute or serve federal immigration warrants,” which 287(g) asks them to do. “When someone is a pretrial detainee and posts bond, then the 287(g) deputy will purport to serve an ICE administrative warrant on that person and keep that person in jail even though they’ve posted bond,” he said. “State officers have no authority to execute those warrants.”

The Teller County sheriff’s office referred me to its public information officer, who did not respond to multiple requests for comment about why the sheriff entered the program and what he would respond to the questions about its legality.

When he applied to join, Mikesell wrote that it would help him fight “organized criminal activity by out of state cartels and illegal aliens who are taking advantage of Colorado’s recreational marijuana laws.” Mikesell has used a similar argument to justify his decision to honor ICE detainers. “These are not people that you want as your neighbors,” he said in July in response to an ACLU lawsuit against the continued detention of a man named Leonardo Canseco Salinas. “These detainees have committed crimes in my community and throughout the United States, such as sexual assault, drug manufacturing and attempted homicide, and many other crimes that cause our citizens to live in fear.” But an article in Westword pointed to the mismatch between this language and the circumstances of Canseco’s case since he was arrested for stealing $8 at a casino.

Greene told me that if Mikesell’s “true intent is to fight crime, then he should have a true bond with everyone in community. If people in your community are afraid to speak to you, there’s no way you can have the trust you need in your community to fight crime in the first place.” Benavidez also disputed this idea that identifying civil immigration violations helps fight crime since there already are avenues (ones that demand a judicial warrant) to detain people for criminal activity. “I don’t think our law enforcement should be entering in 287(g) agreements to turn over people that ICE thinks are a threat,” she said. “If they think they’re a real threat, we have laws to arrest them based on criminal violations.” Benavidez made the same point about detainers, namely that ICE is claiming an exceptional power to arrest “on civil grounds or non-substantiated criminal grounds, based on administrative requests.” She called this “an anomaly that has been carved out by ICE that there is no good reason for.”

Benavidez has filed House Bill 1124 to end such anomalies and to restrict local cooperation with ICE. HB 1124 would bar local law enforcement from spending public funds to help enforce civil immigration laws, from signing contracts that mandate deputies to provide assistance, and from honoring an immigration detainer that is not backed by a judicial warrant. “I’m hopeful it will pass,” Benavidez said. “Many people at least in my party have run on some of the tenets.” Colorado Democrats now control the governorship and both chambers of the state legislature.

Benavidez said HB 1124 would bar counties from joining 287(g) or renewing their contracts, but that it would not terminate existing agreements. But Silverstein of the ACLU told me that a bill can be crafted in such a way as to bar sheriff’s deputies from following through on a contract even if it technically remains in effect. He explained that “a state statute could forbid them to carry out identified functions” like “serving ICE administrative warrants” and “carrying out arrests for civil violations of federal immigration law,” and this “despite the existence of such an agreement.” Silverstein believes that these functions are already illegal, but that legislation could clarify the matter.

HB 1124 would also clarify whether sheriffs can legally honor detainers.

You can read the rest of this article in its full version here.

North Carolina: As ICE conducts raids, Forsyth County sheriff restricts cooperation with agency

Yet another North Carolina county is disentangling its ties to ICE. In December, the incoming sheriffs of Durham County, Mecklenburg County (Charlotte), and Wake County (Raleigh) all announced policies that restricted cooperation with the federal agency.

Bobby Kimbrough, the sheriff of Forsyth County (Winston-Salem), followed suit last week. He announced that he would no longer allow ICE to use space in the county jail to house people it arrests for being undocumented. ICE is currently authorized to do so as part of the county’s intergovernmental agreement with the U.S. Marshals Service. “What that means is the sheriff’s office will no longer house immigration violators,” he said at a press conference.

Kimbrough also said he would no longer honor ICE requests that he detain people beyond their scheduled release date to give the agency time to pick them up. These detainers come with no judicial warrant, and Kimbrough said honoring them violates constitutional rights: “Basically, I’m detaining somebody’s Fourth Amendment right without due process.” Kimbrough is following on the footsteps of Durham County Sheriff Clarence Birkhead, Mecklenburg County Sheriff Gary McFadden, and Wake County Sheriff Gerald Baker, who all announced in December that they would stop honoring ICE detainers. All four of these sheriffs are African-American Democrats who won their first term in 2018 by defeating a white incumbent,

Last week, ICE reacted to the reforms that have occurred in North Carolina with raids that led to the arrest of about 200 people. ICE explicitly connected these raids to the sheriffs’ decisions. “This is a direct correlation between the sheriffs’ dangerous policies of not cooperating with ICE and the fact that we have to continue executing our important law enforcement mission,” Atlanta field office director Sean Gallagher said at a press conference.

Ilana Dubester, founder and executive director of The Hispanic Liaison, told me that ICE was acting in “retaliation” and was “trying to say voters don’t have a choice here. You elected sheriffs that promised to eliminate 287(g), we don’t like that decision, so here’s what you got… If you don’t cooperate with us, we will hit the streets.” The 287(g) program deputizes local officers to act like federal immigration agents; McFadden and Baker terminated Mecklenburg and Wake counties’ participation in December. “They amassed all their forces in North Carolina to do a show of force and to scare the community and sheriffs,” Dubester said.

ICE has said that if sheriffs don’t assist the agency in arresting and detaining people processed at county jails, it needs to conduct more raids and checkpoints in community settings. In response, Dubester noted that the vast majority of counties nationwide lack 287(g) agreements. “Most sheriffs are not participating in 287(g), so what are they going to do? This is an intimidation tactic to scare us into not fighting back, and not fighting these absurd policies.”

Dubester said The Hispanic Liaison was in contact with other state advocacy groups like El Centro Hispano and El Refugio to assist the individuals arrested last week and their families, to identify where people are even being detained, and to raise legal defense funds.

Local activism may have played a role in Kimbrough’s decisions to change county policies. He announced these changes in the aftermath of a local rally held on Feb. 5 in support of Eduardo Fuentes, a man arrested in Winston-Salem for misdemeanor offenses and then detained because local law enforcement honored an ICE request.

A standalone version of this article is available here.

Texas: Houston DA’s bid to hire more prosecutors falls short

Harris County District Attorney Kim Ogg asked county officials to increase her office’s budget by $20 million so she could hire 102 new prosecutors, as reported in The Appeal last week. This drew heavy criticism from reform-oriented groups, and it sparked calls for Ogg to change her office’s practices by reducing the number of cases—and the types of cases—it prosecutes.

On Tuesday, the five-member County Commissioners Court rejected Ogg’s request. The court’s Democratic members, who seized a majority in the November elections, opposed her proposal while also voting to significantly increase the budget of the public defender’s office.

Ogg had justified her request by pointing to the backlog of cases her office is dealing with. Commissioner Jack Cagle, who supported it, told Houston Public Media, “It’s not compassionate to make an innocent individual languish in jail while waiting to get their justice because there’s not enough prosecutors to manage the file.”

But one criticism of Ogg’s proposal was that her office is filing too many charges to start with –and hiring more prosecutors would only balloon that number – and that she should instead look for ways to shrink the criminal justice system by altogether declining to prosecute certain cases.

Ogg argued that she takes concerns about mass incarceration seriously, and that she is already pursuing ambitious efforts to steer defendants arrested for low-level offenses toward pretrial diversion programs that promote rehabilitation and circumvent incarceration. Critics responded that some of these behaviors should not be criminalized in the first place, and they pressed Ogg to not file charges for certain categories of cases even when arrests are made. “The district attorney’s office claims it needs more staff to review these cases for diversion,” Jay Jenkins of the Texas Criminal Justice Coalition, said in a testimony in front of the Harris County Commissioners Court. “But in actuality the office is accepting far too many cases, overwhelming the system with low-level prosecutions.”

“All diversions are not created equal,” Jenkins explained. “Instead of diverting folks from the criminal justice system, many of these existing diversion programs instead ensnare individuals in the criminal justice system for long periods of time when the best result would be to refuse to prosecute certain low level charges.” Jenkins’s testimony echoed questions that county Judge Lina Hidalgo asked Ogg at an earlier hearing: “Shouldn’t we be trying to redirect people from being arrested in the first place rather than diverting after arrest? … It seems to me that we’re burdening our attorneys with people that shouldn’t be making it to the prosecution anyway. Why are we diverting marijuana arrestees … instead of dropping the charge, period?”

Ogg is not up for re-election until 2020, but this week former assistant DA Audia Jones launched a challenge to Ogg and criticized her budget request. “Rather than spending our resources on more prosecutors, we need to invest in education, healthcare, and housing,” she said in a statement that called for “a district attorney who understands that our social and economic problems will not be solved with prosecution and incarceration.”

When I asked Jones how she would respond to Hidalgo’s suggestion that a DA should decline to prosecute rather than divert more cases, she replied in a written message that she agreed “that more should be done to drop and divert pre-arrest rather than pretrial.” She added: “As District Attorney, I will implement cite-and-release and create a list of charges to be declined for certain nonviolent offenses. Harris County is one of the few counties that can control who is arrested through our intake system. All it takes is the political courage.”

A standalone version of the article is available here.

Legislative round-up: California, Michigan, and North Dakota debate the age of youth justice

California: A new California law (Senate Bill 1391) bars anyone under 16 from being tried as an adult. But many DAs have challenged it in court. In an interview, Santa Clara County District Attorney Jeff Rosen says SB 1391 made California law insufficiently punitive. He also argues that it is invalid because it overturns Proposition 57, a 2016 ballot initiative that shifted the power to transfer minors into adult court from prosecutors to judges; Rosen’s point is that SB 1391 stripped judges of an authority voters gave them. Erwin Chemerinsky, dean of Berkeley Law School, answered such arguments in a Sacramento Bee op-ed: “The point of judicial discretion under Prop. 57 is to safeguard against unchecked prosecutorial power, not ensure that some kids are still tried as adults. … Taking to heart Prop. 57’s commitment to youth rehabilitation underscores the need to implement SB 1391.”

Michigan: Michigan is one of four states where the age of juvenile jurisdiction is below 18. In 2018, efforts to increase the age at which one is automatically tried as an adult from 17 to 18 failed in part because of disagreements over how much of the cost of the juvenile justice system counties should bear as opposed to the state. Lawmakers have now introduced a slate of new bills for the 2019 legislative session. The Raise the Age Coalition devotes a web page to listing the 28 bills that have been filed in both legislative chambers to increase the age of juvenile jurisdiction and to make corresponding changes to the state’s funding and detention system.

North Dakota: North Dakota’s legislature is close to adopting House Bill 1039, which would raise to 10 from 7 the age at which children can be referred to the juvenile justice system. “Just the types of services an 8-year-old needs is so different than the juvenile court system,” said Kelly Armstrong, a Republican in the U.S. House who was a state senator when similar legislation was debated last year. While that 2018 legislation did not pass, things have moved quickly so far in the current legislative session: The House approved the bill by an overwhelming vote of 88 to 5 in January, and the Senate Judiciary Committee moved the bill forward last week.

You can visit the Political Report’s legislative round-up page for more on legislative debates in states.

Thanks for reading. We’ll see you next week!