On Saturday, October 5, California Governor Jerry Brown signed the Transparency and Responsibility Using State Tools (TRUST) Act. The TRUST Act will limit California’s cooperation with the federal government’s “Secure Communities” program, which has led to an increase in the incarceration of immigrants.
Secure Communities, begun in 2008 as a pilot program and expanded under President Obama, requires local and state police to submit fingerprints of anyone arrested to a federal database to check the person’s immigration status. If the Department of Homeland Security (DHS) deems a person potentially deportable, it issues a “detainer request ,” requesting local police to detain him or her for up to forty-eight hours for Immigration and Customs Enforcement (ICE) agents to take custody. Secure Communities has been part of a larger effort by ICE, since its creation in 2003, to remove all "deportable" residents. ICE contracts with state and county prisons throughout the United States to detain immigrants for potential deportation. This has caused a surge in the population of incarcerated immigrants, as the total number of immigrant detainees held per year rose from about 204,000 in 2001 to a record 429,000 in 2011.
This systematic incarceration can impose an unnecessary deprivation of liberty and raises due process concerns. Federal courts have ruled repeatedly that immigrant detainees have constitutionally protected due process rights, most recently in the Supreme Court’s ruling in Moncrieffe v. Holder and the Ninth Circuit Court of Appeals ruling in Rodriguez v. Robbins, both issued in April 2013. There are a series of incentives for ICE to imprison individuals even if they do not pose a risk to public safety. DHS appropriations bills set a “bed mandate” that requires ICE to maintain 34,000 detainees on daily basis, encouraging imprisonment rather than legitimate threat assessment. Even former DHS Assistant Secretary for ICE Julie Myers Wood opposes such a mandate, stating, “It doesn’t making sense to have a numerical requirement.” Another incentive is provided by minimum-occupancy requirements in ICE’s contracts with private prison companies, such as GEO Group and Corrections Corporation of America. These require ICE to pay privately operated prisons compensation if occupancy falls below the contracted level, thus encouraging a policy of imprisonment.
These incentives result in ICE failing to meet its stated goal of targeting the most serious criminal offenders. An October 1, 2013 brief by the Transactional Records Access Clearninghouse (TRAC) notes that even though ICE released new guidelines for detainer requests in December 2012, a minority of detainer requests, between ten and fourteen percent, are for those with prior convictions of “Level 1” offenses, such as homicide or sexual assault. In a September 2013 brief, TRAC stated that forty-eight percent of detainer requests were for immigrants with no prior convictions. If preliminary data TRAC obtained holds up, that figure may have increased to a majority of detainer requests for the first half of 2013.
Governor Brown’s signing of the TRUST Act is one part of growing resistance to immigration enforcement as imprisonment. Connecticut passed its own version of the TRUST Act this past June and the Council of King County, Washington, which includes Seattle, was scheduled to continue discussion of a similar local ordinance this Monday, October 14. This past September, Salt Lake City Police Chief Chris Burbank stated his opposition to the involvement of local authorities in immigration enforcement, stating, "Any time you put local people in the position of doing border control, it makes us illegitimate."
There is also resistance on the grassroots level, such as at the Suffolk County House of Corrections in Boston, Massachusetts, where at least two hundred immigrant detainees began a hunger strike this past October 3 to protest conditions there. Peter Lowber of the Boston New Sanctuary Movement (BNSM), an interfaith religious coalition focused on immigrant issues in Massachusetts, said the detainees’ chief complaints were regarding the lack of access to the prison law library, a lack of visitation rights, and unsanitary food. Access to a law library is especially burdensome, as immigration courts do not guarantee a right to an attorney. BNSM sent a letter to Suffolk County Sherriff Steven Tompkins outlining these concerns.
It is possible that Massachusetts will follow in the footsteps of California and pass its own version of the TRUST Act. A hearing on a similar bill was held by the Massachusetts State Legislature on October 3, with further committee action perhaps not until March 2014. Lowber emphasized that states have the legal ability to opt out of Secure Communities, stating that “Secure Communities is not a law, but a bureaucratic program.”