Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

Trump’s ‘Zero Tolerance’ Immigration Policy Has an Antidote

New bail funds aren’t just getting immigrants out of detention—they’re helping them stay in the country permanently.

U.S. Border Patrol agents take a group of Central American asylum seekers into custody on June 12, 2018 near McAllen, Texas.
(Photo by John Moore/Getty Images)

Trump’s ‘Zero Tolerance’ Immigration Policy Has an Antidote

New bail funds aren’t just getting immigrants out of detention—they’re helping them stay in the country permanently.

Under the Trump administration, the number of people being held in ICE custody has reached record highs, with over 40,000 people now in detention centers across the country. With no end in sight for the Department of Justice’s “zero tolerance” immigration policy, under which even first-time border crossers are charged with federal misdemeanors, activists and immigrant advocates have been looking for ways to stem this rising tide and get people out of detention as quickly as possible.

“There’s been this push among community groups, lawyers, organizations and also just random groups of people who have been thinking about what they can do that’s practical to actually get people out, and then, to be able to amplify the effect of legal services,” said Benita Jain, an Oakland, California-based supervising attorney at the Immigrant Defense Project. In the days following President Trump’s election, Jain began working with other parents in California public schools to create the Immigrant Family Defense Fund, a bond fund for parents facing deportation.

Since Trump’s election, more than a dozen new bond funds that focus on people in immigration detention have emerged—with most of those already bailing people out of detention, and others still in the process of forming.

These bond funds not only free people currently detained by ICE, Jain explains, but give them a much better chance at eventually winning their immigration cases and being allowed to stay in the country permanently. Once out of detention, immigrants can situate themselves closer to legal assistance and social supports.

Immigrant bond funds have never been more needed: Arrests by ICE are up sharply in the past 18 months, and the backlog of cases in immigration courts has increased by almost a third under Trump. That means if immigrants want to fight their cases and try to stay in the country legally, they will typically wait months and possibly years for their days in court. Many are held in crowded private detention facilities that often lack substantive oversight, are home to incidents of sexual abuse, are devoid of quality healthcare, and, for the most part, are many miles from any legal assistance. Getting stuck in detention puts pressure on immigrants to give up their cases and agree to removal—unless, of course, they get bailed out.

But only 14 percent of immigrants in detention have legal representation, which is not guaranteed to them under the Constitution. “Having legal representation is associated with significantly higher odds of being granted bond,” said Emily Ryo, an associate professor of law and sociology at the University of Southern California Gould School of Law, who has extensively studied the impacts of bail in immigration proceedings. Yet those who are in detention facilities far from big cities often don’t have ready access to the lawyers they need. Ryo notes that there’s “a significant and robust association between being confined in a facility that is close to a dense population of immigration lawyers and shorter detention length.”

Prolonged detention can make it hard to build a case, Jain explained, another reason bail is so important. “If you’re detained, it’s much harder to get an attorney in many parts of the country, and even if you do have an attorney once you’re out, there’s so many things that make it easier for you to fight your case: You can collect documentation and evidence, a pay stub, get letters from families, friends, and community members,” Jain said, adding that each opportunity an immigrant has to prove the need for asylum or ties to a community makes a removal case that much more winnable.

Getting out on bail also allows immigrants to move to parts of the country where courts are less likely to deport them. For instance, over the past 18 years in Queens County, New York, almost half of immigrants facing removal have been granted some form of relief, such as asylum or cancellation of their removal proceedings. That’s in stark contrast to Cameron County, Texas, which had almost an identical amount of cases to Queens during that time, but where less than 5 percent of immigrants facing removal were granted relief.

Immigrant communities in the United States are often situated in cities with robust legal defense organizations, as well as protections for immigrants from targeting by law enforcement. Immigrants who are bonded out are able to search out these cities, and they stand a better chance at a favorable outcome. (It’s no coincidence that Queens has a foreign-born population of just under 50 percent.)

While lawyers greatly increase the chances of an immigrant being offered bond, actually paying that bond is a significant hurdle for immigrants. It is often set far above the reach of many immigrant families and can be as high as $20,000. Unlike other arrestees who can borrow a percentage of their bond from the corporate bail bond industry, immigrants often can’t because their bonds must be paid in full to secure release. (They get the money back only at the resolution of their cases, which can often take years.)

Unlike bond funds in the criminal justice system, which can refill their coffers after a client returns to court and bond is returned, immigrant bond funds often wait years until a case is resolved for that loan to be repaid. This raises the cost of running an immigrant bond fund tremendously, a problem compounded by the fact that bonds have begun to be set much higher under the Trump administration than previous amounts under Obama.

“When we pay a bond, we assume it’s paid and it’s not coming back. Some of the bonds have come back, but not all of them. We just put it out and assume, okay, we paid that and it sometimes takes like five or six years for the processes to play out regarding the bond, so we’re constantly just trying to replenish the fund,” said Jimmy Wells, an organizer with the Protection Network Action Fund (Pronet), an organization that provides financial support to immigrant rights groups in Tucson, Arizona, including in the form of bail bonds. Since its formation in 2012, the organization has paid out at least 11 bonds for immigrants in the area, according to Wells.  

“When we’re able to bond someone out, we can fight the battle on our terms,” Wells told The Appeal. “We can stretch the case out in order to give the person more time, we can get the community involved. I think it makes all the difference in terms of getting people reunited with their families.”

Donors have been responding to the call for help. Refugee and Immigrant Center for Education and Legal Services, or RAICES, a Texas-based advocacy group, raised more than $20 million in under a week for legal representation and bail for immigrants. But some advocates fear that once the attention being paid to family separation dies down, fundraising will slow down as well. Meanwhile, the costs of bailing out everyone arrested could rise substantially.

Jain hopes the bail funds will be able to meet the demand. “It’s really just over the past year and a half [that] bond funds for immigrants have been popping up around the country, and it’s only been the past couple of weeks that there’s been this actual national conversation about individuals giving their dollars specifically to get people out,” Jain said. “We need as much money as the government spends on deporting people—$10 billion dollars to do all of this, I’m sure could be put to good use.”

Prosecutors and Judges in Pennsylvania County Hammer Defendants in Low-Level Drug Cases

In overdose-wracked Franklin County, Pennsylvania, a small-time dealer is denied bail, while the number of drug induced homicide cases has skyrocketed.

A heroin camp in Pennsylvania is visited by police
Bastiaan Slabbers/Getty

Prosecutors and Judges in Pennsylvania County Hammer Defendants in Low-Level Drug Cases

In overdose-wracked Franklin County, Pennsylvania, a small-time dealer is denied bail, while the number of drug induced homicide cases has skyrocketed.

Angel Fortich was at worst a small-time drug dealer, but he faced consequences befitting a major trafficker or even a murderer: denial of bail and pretrial detention for six months. In 2017, Fortich, a 21-year-old resident of Chambersburg, Pennsylvania, was charged by prosecutors with selling roughly three stamp bags of heroin and possessing an eighth of a pound of marijuana in Franklin County, a small county of approximately 150,000 residents along the Mason-Dixon Line in central Pennsylvania.

The judge’s sole rationale for the bail denial was that Fortich faced “multiple drug charges,” according to court records. But bail is not supposed to be used as punishment. “We do not want to administer punishment before the defendant has been adjudicated guilty,” wrote Harris County District Attorney Kim Ogg in a brief supporting a lawsuit over the county’s cash bail system.

Cherise Fanno Burdeen of the Pretrial Justice Institute in Rockville, Maryland, says judges often do just that, reasoning, “‘I don’t know what’s going to happen to cases down the road, but I can get punishment now by setting a bond amount that someone can’t meet.’”

Fortich was arrested by Pennsylvania State Trooper Antwjuan Cox. A review by The Appeal  of Cox’s affidavits documenting three alleged heroin sales by Fortich between January and March 2017 reveals that the trooper wrote nearly identical affidavits in each case.  Fortich was contacted by an unnamed individual, either by phone or on Facebook, requesting the purchase of a “sum of heroin,” and then Fortich allegedly delivered drugs to the individual in view of the police. Cox did not quantify the “sum” of heroin sold by Fortich. However, in a sentencing report for the one case in which Fortich negotiated a guilty plea, it appears that the amount of heroin he dealt was 0.01 gram, the equivalent of one stamp bag.

In April 2017, Cox filed criminal charges against Fortich and requested a warrant for all three drug sales, and Chambersburg Police arrested him. Roughly an hour later, Officer Cole Baker—who noted in an affidavit of probable cause that Fortich smelled of marijuana—said his patrol vehicle still smelled of the drug. When he searched the vehicle, Baker said he found 18 baggies of marijuana in his patrol vehicle where Fortich had been seated. Baker concluded that that the drugs belonged to Fortich and charged him with felony possession with intent to deliver. Based on these charges, Magisterial District Judge Kelly Rock denied bail.

Pennsylvania law allows bail denial only in the most serious cases, like murder, or when “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.” But Burdeen says that far too often “we use the criminal justice process as punishment.”  

Indeed, as Pennsylvania confronts an overdose crisis which has seen the annual number of deaths surge from 10 in 2013 to 40 in 2016 in Franklin County, magisterial district judges appear to be using bail as a means to punish defendants charged with drug dealing. The Appeal reviewed all criminal cases filed in Franklin County between 2012 and 2017 and found that the median bail for people charged with possession with intent to deliver has quadrupled from $25,000 to $100,000. Reliance on cash bail has also increased in Franklin County. In 2012, cash bail was imposed in roughly half of all drug delivery cases; in 2016 and 2017, cash bail was imposed in 70 percent of such cases, The Appeal found. In Franklin County, median cash bail for possession with intent to deliver cases is now higher than bail for violent crimes such as felony aggravated assault, according to The Appeal’s review.

Drug-induced homicide cases—where people are charged with homicides if they share or sell drugs to someone who later overdoses and dies—have also risen sharply in Franklin County, from two in 2016 to 17 in 2017, according to the Administrative Office of Pennsylvania Courts.

After Fortich spent nearly six months incarcerated pretrial, charges in two of his heroin delivery cases were dropped. Fortich pleaded guilty to possession with intent to deliver in the third heroin case; in the marijuana case and he was sentenced to five years’ “intermediate punishment” which involves an initial jail sentence followed by community supervision. He was also ordered to serve two additional years of probation and pay roughly $5,000 in fines and fees. Franklin County is “probably trying hard to figure out how to manage some of these social issues” says Burdeen, but “the problem is the tools we’re using, like jail, backfire. Whatever risk label you want to give Angel, nothing about his life situation gets better by being incarcerated.”


More in Explainers

This Red State Governor Is Giving Hope To People Sentenced To Die In Prison

But after a spree of commutations, the governor recently put down his clemency pen amid tough-on-crime fear mongering.

Louisiana Governor John Bel Edwards
Joshua Lott/Getty Images

This Red State Governor Is Giving Hope To People Sentenced To Die In Prison

But after a spree of commutations, the governor recently put down his clemency pen amid tough-on-crime fear mongering.

In 2016, after serving nearly 27 years in prison, 61-year-old Kerry Myers experienced something he didn’t know would ever happen: Christmas at home with his family.

At the time of his sentencing for second-degree murder in 1990, Louisiana was enforcing decades-old “life means life” laws that meant that unless Myers could prove his innocence, he would die in prison. Louisiana is one of two states that mandates life without parole for second-degree murder, and almost 5,000 people are currently serving sentences with no chance of parole or probation.

But Myers wasn’t ready to accept his life sentence. He kept fighting to prove his innocence and applied for clemency from the governor. For a long time, the chances of either proving successful were low. Then Governor John Bel Edwards, a Democrat, took office in 2016.

After campaigning in the deep red state on a promise to reduce its prison population, Edwards set his sights on changing Louisiana’s reputation as the incarceration capital of the nation. One of his first actions was to give relief to people like Myers serving long sentences for violent crimes. In his first six months in office, Edwards commuted 22 sentences out of 56 sent to him with positive recommendation from the state’s Board of Pardons. Sixteen of the offenders whose applications he granted were serving life without parole.

Just a few days days before Christmas, the warden told Myers that Edwards had signed his application and had granted him immediate release. Four days later, he was home near Baton Rouge, celebrating Christmas with his mother, brother, daughter, grandchildren, and extended family.

“It was amazing,” he said. “It was a fantastic reunion.”

Edwards’s commutation spree stood in stark contrast to how his predecessors used their power. Neither Governor Mike Foster, a Republican, nor Kathleen Blanco, a Democrat, signed any commutations in their first year. (Foster waited almost three years to start signing pardons and commutations, but focused on nonviolent offenders.) Blanco commuted 129 sentences in four years, and Foster commuted 52 in eight years, but the majority came during their last few years in office.

Governor Bobby Jindal, who served most recently, approved one clemency application in his first year but only three during his eight years in office. While the Pardon Board sent many applications with positive recommendations to his desk, Jindal, a Republican, ignored the vast majority. That included Myers’s, which the Pardon Board recommended in 2013.

How often Democratic governors grant commutations appears to have more to do with the governor than the political makeup of their state. In solidly Democratic New York, Governor Andrew Cuomo granted only seven commutations in December 2016 and just two since then. But in California, Governor Jerry Brown, a Democrat, commuted 49 sentences in the final two years of most recent his term.

Criminal justice reform advocates credit Edwards for bringing long-needed change to Louisiana’s justice system—not just through his clemency push but also by spearheading a legislation package that lowered mandatory minimum sentences, expanded alternatives to prison, and made it easier for nonviolent offenders to get out of prison early. Thousands of people have since been released, and last year Louisiana lost its title as the state with the highest incarceration rate in the nation. Edwards’s renewed use of the clemency power made many of the lifers at the Louisiana State Penitentiary at Angola, the largest maximum-security prison in the United States, hopeful for the first time in decades.

“I can tell you most certainly there was renewed hope,” said Andrew Hundley, the executive director of the Louisiana Parole Project. “For so long, there wasn’t hope. … There’s about 6,000 people at Angola and about 5,000 of them have life sentences or sentences akin to life sentences, so the majority of people who go to Angola won’t leave Angola.”

Hundley was himself sentenced to life without parole as a juvenile, but was also released from Angola in 2016 thanks to Edwards’s bill that prohibited that sentence for young people. He said that Edwards’s use of his clemency power had positive effects across Angola. Many offenders who previously assumed they would die inside prison suddenly started trying to improve their behavior, as a favorable recommendation from the pardon board requires an applicant to be free from disciplinary reports for 24 months. Inmates also began applying for educational opportunities and prison organizations to boost their applications. “Edwards may not realize this but he’s the warden’s best friend,” Hundley said.

But then the commutations stopped.

In the last year and a half, since the end of 2016, Edwards has not signed a single commutation. The pardon board has issued at least 70 positive recommendations to people seeking commutations since December 2016, when Edwards signed his last commutation, according to an analysis by The Appeal. Representatives with his office did not respond to questions about why the commutations stopped.

Advocates like Norris Henderson, who leads the civil rights nonprofit Voice of the Experienced, say they understand why Edwards has put down his clemency pen. The governor is up for re-election next year, and they say it would be dangerous for him to do anything that could jeopardize his chances of serving another term.  

“I think he’s just being cautious,” Henderson said, pointing out that as the lone elected Democrat in Louisiana, Edwards has a long list of opponents who would capitalize on any misstep. “Some of these folks are trying to use any excuse possible to throw a brick at you.”

“He’s doing his due diligence,” Myers agreed. “The political fallout could wreck someone who has an opportunity to do good. … You have to be there to do good.”

While his efforts have garnered praise outside the state, Henderson said it’s common knowledge in Louisiana that supporting criminal justice reform can be a politically dangerous position. Edwards is already facing pushback from the state’s district attorneys, who have said they need more time to consider each application. (E. Pete Adams, the executive director of the Louisiana District Attorneys Association, said the DAs respect the governor’s commutation authority, as long as victims and their representatives are given notice and the opportunity to be heard.)

Two Republicans, U.S. Senator John Kennedy  and state Attorney General Jeff Landry—both considered potential opponents for Edwards in next year’s election—have already gone after the governor for being too lenient on crime, with Kennedy calling Edwards’s package of reforms an “unqualified disaster.”

If just one of individuals whose sentence Edwards commuted or who have been released were to violate their parole or get sent back to prison, Edwards’s ability to use his clemency power could be over.

“People are looking for a Willie Horton,” Henderson said, referring to the man who was convicted of a rape and other crimes committed while on a Massachusetts weekend furlough program and may have cost the state’s governor at the time, Michael Dukakis, the 1988 presidential election.

The pause in commutations is also easier for advocates and offenders in Louisiana prisons to understand because of the widespread belief that it’s just that—a pause and not an end. “I don’t think he’s going to shut down the process,” Henderson said. “I trust that once things start shaking themselves off around the budget and the governor’s office gets a handle of where we are fiscally, then I think we’ll go back to things as normal.”

Many believe they will have to wait to see if Edwards wins a second term in 2019. In the scheme of things, Henderson said another few years is nothing compared to the decades many have been waiting. “Folks will understand,” he said.

They also understand that if he wins re-election—which polls last winter showed would be difficult but possible—Edwards would not have to worry about the potential pushback that granting mass clemencies would bring. “The prison population wants to see him become a second-term governor because of pardons and the assumption that he would do more criminal justice reform in his second term,” Hundley, of the Louisiana Parole Project, said. “There’s an understanding—don’t expect any more pardons before the election.”

But advocates are also thinking about how to keep the commutations coming if Edwards were to lose. Voice of the Experienced is advocating a bill that would relieve a governor of some responsibility by making it possible for a recommendation that sits on the governor’s desk for 90 days to be considered signed. That change would also relieve some of the stress on the prisoners, Henderson said. “It’s very disheartening for a person who gets a recommendation and then is sitting there five years, six years, seven years,” he added.   

Myers, who said he feels lucky to have had his application considered in Edwards’s first group in 2016, said he will do his part to make him a second-term governor who can continue signing clemency applications.

“I talked to him and I said, ‘You know I do get to vote in the next election now,’” Myers said, remembering when he got to meet and thank Edwards last year. “I said, ‘You can probably count on my vote.’”

More in Podcasts