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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.”

In This Edition of the Political Report

This newsletter highlights the stakes of under-the-radar elections, but one obstacle to championing criminal justice reform in the electoral arena is the large share of local elections that go uncontested. Today, I’ll take a deeper dive into the scope of that phenomenon, and you will also see how frequently prosecutors facing challenges now have evaded competition in the past.

  • Sparse competition in prosecutorial elections: A look at California, Minnesota, Oklahoma, and Utah
  • June 26 primaries: Reviewing results, and looking ahead 
  • Colorado: Attorney general race takes shape, featuring George Brauchler
  • Massachusetts: Berkshire County District Attorney orchestrates his own succession
  • Pennsylvania: Stephen Zappala draws first challenger since 1999
  • Rhode Island: Lawmakers who opposed tougher sentencing targeted by Democratic Party

Sparse competition in prosecutorial elections: a look at California, Minnesota, Oklahoma, and Utah

Promoting prosecutorial accountability and criminal justice reform in the electoral arena depends on vigorous competition, but that’s far from the norm. One candidate stands unopposed in most prosecutorial elections, as studies like this 2009 article by Robert Wright have found. That’s holding true in 2018, as I found when I examined county-level district attorney contests in four states. Take a look at Utah and Oklahoma, which held their primaries on June 26; Minnesota, where early voting began on June 29; and California, which held its primary on June 5:

Oklahoma is hosting 27 races for district attorney this year, but 19 of them drew just one candidate. Similarly, Utah is hosting 28 races for county attorney, 19 of which feature no competition on the ballot. Besides the 16 Utah incumbents who are unopposed in both the primary and the general election (one did face challengers at the county convention), there are three small counties with no candidate at all. Only six of Utah’s 28 races featured competition in the June 26 primary; only five will feature multiple candidates on November’s ballot.

The landscape is even more uncompetitive in Minnesota, which is electing 87 county attorneys this year: 74 of these races (85 percent) feature only one candidate.

The share of contested races remains very low in Minnesota’s most populous counties: Just three of the 19 counties with more than 50,000 residents (Hennepin, Ramsey, and Olmsted) feature more than one candidate. Even then, only one of Ramsey County’s two contenders is running an active enough campaign to have a website at the moment. In Hennepin and Olmsted, longtime incumbents Michael Freeman and Mark Ostrem face challenges on the November ballot, but neither has faced a challenger since 2006; both ran for re-election unopposed in 2010 and 2014.

California posts a higher rate of contested DA elections. But here, too, a majority of this year’s elections—30 of 56, about the same ratio as four years ago—feature only one candidate.

The pattern looks different in California’s largest counties: 10 of the 15 elections in counties with more than 500,000 residents drew multiple candidates. Most of these ended in June’s all-party primary because a candidate got a majority of the vote; only two elections remain contested in November, where turnout will be considerably higher. This is unfortunate in that most of California’s contested district attorney elections are decided by a smaller electorate than could be the case. (In 2014, participation in the primary was 59 percent of November’s.) California could look toward Minnesota for a way to alleviate this: Minnesota waits until November to hold a vote for county attorney if only two people have filed, rather than resolve it in a lower-turnout summer election.

Reviewing the June 26 results, and looking ahead

Of the seven elections relevant to criminal justice reform profiled in my first newsletter, six produced a conclusive result. (The seventh, the GOP primary for district attorney of Tulsa County, is heading to an August runoff between Steve Kunzweiler and Ben Fu.)

Aisha Braveboy, Michael Dougherty, and Marilyn Mosby won the Democratic primaries for State’s Attorney of Prince George’s County, Maryland, for District Attorney of Boulder County, Colorado, and for State’s Attorney of Baltimore City, Maryland, respectively. None will face a GOP opponent in November. They made varying degrees of reform commitments during their campaigns, the details of which you can read about in my analysis from the inaugural newsletter two weeks ago.

Bill Elder won the GOP primary for a new term as Sheriff of El Paso County, Colorado. The ACLU has sued Elder for unlawful immigration detentions and reports have documented alarming conditions in the county jail, but his opponent attacked him for being too lax and promised to cooperate with ICE more closely. In this traditionally Republican-voting county, Elder next faces Democrat Grace Sweeney-Maurer.

Alexandria Ocasio-Cortez had a victory heard around the country, becoming the Democratic nominee in New York’s 14th Congressional District, which encompasses parts of the Bronx and Queens. Ocasio-Cortez, who is heavily favored to win the general election, has highlighted her proposals to abolish ICE and scale back mass incarceration. She published an essay on the “urgency of criminal justice reform,” tying it to her Catholic faith and forgiveness, on the day after her primary win.

In New York’s 11th Congressional District, U.S. Representative Dan Donovan won the GOP primary with unexpected ease. Donovan is the former district attorney who in 2014 triggered widespread protests when he wrapped up his investigation into Eric Garner’s death without bringing any indictment against the police officer accused of killing him.

Donovan now faces a potentially competitive general election against Democrat Max Rose, a former employee of the Brooklyn district attorney’s office whose candidacy was recently profiled in the New York Times. Rose coauthored an op-ed in Forbes last year tying his experiences in the military to his interest in criminal justice reform; the op-ed denounces the “staggering” scope of mass incarceration and obstacles to re-entry and lays out some policy proposals.

Colorado: Attorney general race takes shape, featuring George Brauchler

The Democratic primary for attorney general of Colorado put state Representative Joe Salazar against Phil Weiser, a law professor at the University of Colorado. Both articulated a series of reform-oriented positions: support for the state’s marijuana legalization and bail reform, opposition to the death penalty, and a commitment to offering legal support to sanctuary cities. While he is opposed to capital punishment, Weiser (unlike Salazar) said that he would defend the state’s existing death penalty laws—which provide for it—in court. In addition, Salazar ran on pursuing more aggressively reform actions, such as suing localities that cooperate with ICE and suing cities for violating the rights of homeless people.

The better-funded Weiser secured the nomination in the June 26 primary, beating Salazar by less than one percentage point. In a general election that is likely to be competitive, Weiser will face Republican George Brauchler, the district attorney of Colorado’s Arapahoe, Douglass, Elbert, and Lincoln counties.

In a statement in March, the ACLU of Colorado highlighted Brauchler’s “devotion” to capital punishment. “Brauchler and his office reside at the extreme fringe of the issue in Colorado,” it said, noting that “Colorado’s death row is occupied exclusively by black men from Brauchler’s district.” The ACLU’s statement was occasioned by the jailing for contempt of Greta Lindecrantz, a woman who was refusing to testify in a death penalty case on religious grounds.

In another confrontation, Brauchler has mounted a legal battle with the Colorado Independent, a publication that sought to unseal records about prosecutorial misconduct in the case of a person on death row. Brauchler is also blocking efforts to revisit juvenile sentences in the wake of the U.S. Supreme Court decision that struck down mandatory sentences of life without parole for juveniles. In April, he filed a petition that challenged the constitutionality of a new state law that provided for reconsideration of such sentences, which has since led to legal confrontations with the attorneys of Curtis Brooks, one of the individuals looking for such reconsideration in Brauchler’s district.

Brauchler provides a good illustration of the impact of uncontested district attorney elections. In 2012, he won his first general election by four percentage points, helped by his party’s performance in the presidential election; by my calculation, Mitt Romney won this judicial district by six percentage points. Four years later, Democrats improved in this judicial district, with Hillary Clinton narrowly edging out Donald Trump—but this time Brauchler faced no opponent.

Massachusetts: Berkshire County District Attorney orchestrates his own succession

After running unopposed in his past two re-election bids, Berkshire County District Attorney David Capeless maneuvered this year to give a leg up to his preferred successor. Eoin Higgins reports in The Appeal on the coordination between Capeless and the office of Governor Charlie Baker: After Capeless resigned in March, Baker appointed First Assistant District Attorney Paul Caccaviello as the new district attorney. As a result, Caccaviello is able to run as the incumbent this fall, an enviable advantage. In the Democratic primary, he faces defense attorneys Andrea Harrington and Judith Knight. Harrington talked to The Appeal about her interest in restorative justice and in the policies implemented by Philadelphia District Attorney Larry Krasner. You can read The Appeal’s full article here; you can also read here about some of its fallout.

Pennsylvania: Stephen Zappala draws first challenger since 1999

The district attorney of Allegheny County (which includes Pittsburgh) has faced no challenger since his first election in 1999. Stephen Zappala has coasted unopposed in both the Democratic primary and the general election in four consecutive re-election bids.

That will soon change: The county’s chief deputy public defender, Turahn Jenkins, announced in early July that he will challenge Zappala in the 2019 Democratic primary.

Jenkins’s announcement came less than a month after the shooting of Antwon Rose II by Officer Michael Rosfeld, which sparked local protests. Zappala charged Rosfeld with criminal homicide in late June. Local activists have long protested Zappala’s handling of cases involving police officers, for instance these cases of abused Black students in a Pittsburgh high school. In a detailed analysis published in June, the Pittsburgh Post-Gazette found that Zappala brought no charge in 18 of 22 police homicide cases over his two-decade tenure. 

Jenkins’s bid also comes at a time of potential upheaval in Pittsburgh’s Democratic politics. Two prominent local lawmakers were ousted in May by Sara Innamorato and Summer Lee, who were backed by the Democratic Socialists of America. Innamorato and Lee were among the hosts of Jenkins’s campaign-launching event, as were members of Pittsburgh-based organizations like the Alliance for Police Accountability.

Jenkins is running as an advocate for reforming the criminal justice system, which he says “destroys people’s lives, then doesn’t give them the tools or support they need to put them back together.” In his first candidate interview with the Pittsburgh Post-Gazette, he talked of the need for changes that curb incarceration. “In essence, the rich and guilty go free, and the poor and innocent go to jail,” he said in reference to the use of cash bail, which keeps people incarcerated before trial if they are unable to pay. Jenkins also faulted the practice of overcharging defendants as a bargaining tool. The election takes place in May 2019.

Rhode Island: Lawmakers who opposed tougher sentencing targeted by Democratic Party

Last week, Rhode Island’s Democratic Party endorsed primary challengers to three Democratic lawmakers: state Senator Jeanine Calkin (Warwick), state Representative Marcia Ranglin-Vassell (Providence), and state Representative Moira Walsh (Providence). The story gained national attention because the candidate that the Democratic Party originally endorsed against Walsh supported President Trump and has a history of anti-immigrant comments. Facing a furor, the state party later rescinded its endorsement of Walsh’s challenger, though not its endorsements of Ranglin-Vassell and Calkin. All three face primaries on September 12.

Walsh attributed the party’s hostility toward her to her progressive stances. As an example, she evoked her opposition to Kristen’s Law, which Democratic Governor Gina Raimondo signed into law on June 29. A response to the opioid epidemic, this measure creates a new penalty of up to life in prison for people who sell a controlled substance that leads to a fatal overdose.

Walsh helped organize a protest against the bill, describing it as “vengeful [and] mean-spirited” and calling for redemption over revenge. “Earlier this week I was at a press conference with Governor Raimondo,” Walsh said at the protest. “While she lamented the children being taken away from their parents at the border, she saw no irony in the fact that she would be signing a law to take other people’s children away today.” (I recommend this interview in The Atlantic about Walsh’s organizing background.)

Like Walsh, the two other targeted incumbents also voted against Kristen’s Law when it overwhelmingly passed the General Assembly in June.

Raimondo also faces a challenge in the Democratic primary. Her opponent Matt Brown, a former secretary of state, opposes Kristen’s Law.  “Doubling down on mass incarceration is wrong and will not solve the problem,” he said in June. “Beyond that, this law may deter people witnessing a drug overdose from calling for help.”

Thanks for reading. We’ll see you in two weeks!

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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.”


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