County of Santa Clara Office of the District Attorney 65137 A DATE: November 7, 2012 TO: FROM: SUBJECT: Board of Supervisors Jeffrey F. Rosen, District Attorney Civil Detainer Policy Review RECOMMENDED ACTION Accept report from the Office of the District Attorney relating to Board Policy No. 3.54 on civil immigration detainer requests. FISCAL IMPLICATIONS The recommended action is expected to produce an undetermined amount of cost savings by reducing probation costs as detailed further in the Background section of this transmittal. REASONS FOR RECOMMENDATION This report is presented in order to begin a dialogue about amending Board Policy 3.54 in order to protect public safety, taxpayers dollars, and victims rights. I recommend that the Policy be amended to: Remove the requirement for a prior written agreement with the federal government for reimbursement of costs related to civil immigration detainers; and to Change the conditions for honoring detainer requests to include those convicted of all felonies except drug use or drug possession, those with multiple driving under the influence convictions, those who are validated gang members, and those who have previously committed a dangerous felony. Public safety would be protected by stopping the premature release of felons and others who have committed crimes that endanger the safety of our residents. Taxpayer dollars would be protected by saving significant costs for probation supervision of criminals who would otherwise move into federal custody to await a hearing. These costs are significantly greater than the cost of housing inmates for an additional one or two days in County custody. Victims rights would be protected by ensuring that the County complies with all the provisions of Marsy s Law requiring victims to be informed of the status of defendants. CHILD IMPACT The recommended action will have no/neutral impact on children and youth. SENIOR IMPACT The recommended action will have no/neutral impact on seniors. SUSTAINABILITY IMPLICATIONS The recommended action will have no/neutral sustainability implications. BACKGROUND Page 1 of 5
On October 18, 2011, the Board of Supervisors approved Board Policy 3.54, Civil Immigration Detainer Requests. The Policy says that civil detainer requests from United States Immigration and Customs Enforcement (ICE) will be honored for an additional 24 hours after defendants would otherwise be released, so long as there is a prior written agreement with the federal government by which all costs incurred by the County in complying with the ICE detainer shall be reimbursed. The policy further directs that holds will be enforced only for those convicted of serious or violent felonies. ICE Enforcement Activities ICE is the principal investigative arm of the U. S. Department of Homeland Security and the second largest investigative agency in the federal government. One of its tasks is to enforce immigration law violations. The other primary task is customs enforcement. While federal immigration law is complex, particularly for state prosecutors and local law enforcement officers, it can be broken down into two categories described below: Civil violations include illegal presence and failure to depart after expiration of a visa. Criminal violations include illegal entry, re-entry after deportation, and willful failure to leave after a removal order (a person who was not aware of a removal order is only charged with a civil violation). If ICE places a civil detainer on someone, that person will not necessarily be deported: s/he will appear at a civil removal proceeding before an Immigration Judge, who will determine whether s/he will be removed from the United States. Under all circumstances, the person has appeal rights. ICE s Secure Communities program was the primary driver of the Board s action last October. Under the program, fingerprints of individuals booked into a jail that have been shared with the Federal Bureau of Investigation (FBI) in order to check criminal histories (a protocol that has been followed for decades) are automatically sent to ICE to check against its immigration databases. If the fingerprint check indicates that ICE should consider an enforcement action based on the individual being unlawfully present in the United States or otherwise removable due to a criminal conviction, ICE issues an immigration detainer. In 2010, the Board voted to opt out of the program, but ICE has indicated that state and local jurisdictions cannot opt out, as it imposes no new or additional requirements, but instead uses an already-existing federal informationsharing partnership. The immigration detainer, which is not approved by a judge in the manner of a local arrest warrant, is issued under ICE s authority in the Code of Federal Regulations. The detainer requests that an inmate be held for 48 hours (excluding weekends and holidays) to allow ICE to interview the person to determine whether to seek the person s removal. If ICE does decide to seek removal, ICE assumes custody. If not, the hold is lifted. The key element of ICE s decision whether or not to seek removal is an assessment of the person s level of threat to public safety, as determined by the severity of the crime, the person s criminal history, and whether the person has repeatedly violated immigration laws. Policies in Other Counties The City and County of San Francisco has a sanctuary ordinance prohibiting local officials from assisting ICE unless a felony is involved. San Francisco began a policy in June 2011 under which the jail (operated by the Sheriff) honors ICE detainers for felons only, while lower level offenders are released after they post bail or complete their sentences. Other Bay Area counties honor all ICE detainer requests. The Los Angeles County Sheriff supports the Secure Communities program and honors ICE detainers for both felons and misdemeanants. Los Angeles County jail provides notices in various languages to inmates who are subject to an ICE detainer. The notice includes a toll-free ICE phone number for detainees to call if they believe they are victims of crime or actually are U. S. citizens. San Diego County has ICE agents located in each county jail facility, and honors all ICE detainer requests. Page 2 of 5
Results of County Practices Under the Policy As mentioned above, the Policy requires a written agreement for reimbursement of the County s costs in complying with the ICE detainer. ICE has refused to execute such an agreement. According to a local ICE official, this refusal is based on the fact that the County receives a reimbursement through the State Criminal Alien Assistance Program (SCAAP). The SCAAP program, according to the federal Bureau of Justice Assistance (which administers the SCAAP program in conjunction with ICE and Homeland Security), provides federal payments to states and localities that incurred correctional officer salary costs for incarcerating undocumented criminal aliens with at least one felony or two misdemeanor convictions for violations of state or local law, and incarcerated for at least four consecutive days. The Department of Corrections has received SCAAP payments for eight years, typically of more than $1 million. The FY 2012 award amount is $914,006. As a result of the absence of a written agreement for reimbursement, none of the 788 detainer requests placed during a 4 ½ month period between October 2011 and February 2012 were honored (nor have they been honored since this study period). These inmates were released either pre-trial, by making bail and still being obligated to make subsequent court appearances, or post-conviction, after completing their court-ordered sentence that includes formal probation or realignment community supervision. Of the 788 defendants subject to a detainer request, 369 were released rather than held for an ICE interview. The remainder stayed in custody for one of three reasons: 1) awaiting trial or serving sentences in Santa Clara County, 2) sent to state prison, or 3) transferred to other jurisdictions for pending cases. For the purposes of analysis, only those who would qualify under the proposed amended policy (those convicted of felony offenses other than drug use or drug possession, convicted of multiple driving under the influence charges, validated as a gang member, or previously convicted of a dangerous felony) were examined: this group numbered 110. That is the group used for each element of analysis shown below. Protection of Public Safety This group of 110 inmates that were released into our community rather than being held for an interview and possible immigration enforcement represented a serious threat to public safety in our county. The chart below lists various elements of their criminal histories: Offense Description Number Percentage Bench Warrant The defendant is a fugitive from justice as a result 30 27% of failure to appear in court or failure to abide by probation terms. Stay Away Orders A judge orders specific instructions to the 24 22% defendant regarding the protection of a victim. Dangerous Felonies Felony driving under the influence (involves 12 11% either injuring a victim or repeat offenses) Inmates with documented gang affiliations 10 9% Residential burglary 8 7% Felony sex offenders or child molesters with a responsibility to register as sex offenders 6 5% Protection of Taxpayers Dollars At least 65 of these inmates were placed on formal 3- or 5-year probation. Under the proposed amendment to the policy, these inmates would have been held for up to 48 hours pending an ICE interview. For an Page 3 of 5
inmate that was considered a significant threat to public safety, ICE would have taken custody of the person and pursued enforcement action. If the result of the subsequent immigration hearing was deportation, the County would have incurred the cost of custody of the person for two days, but would have avoided the cost of formal probation supervision. Based on cost rates provided by the Sheriff s Office and the Probation Department, the total cost comparison is shown below, using the maximum ICE detainer time of 48 hours compared with the lowest probation period in the sample of three years: Cost per Person Category Current Policy Proposed Amended Policy Cost of Service $186.27 per month (probation $203.79 per day (jail supervision) custody) Period of Service 36 months 2 days TOTAL COST TO COUNTY $6,705.72 $407.58 Even if only 32, less than half, of the 65 inmates placed on probation were ultimately deported, the County s cost savings would total more than $200,000 for the 4 ½ month study period, which would be projected to exceed $530,000 for a full year. Protection of Victims Rights The California Constitution, Article I, Section 28(b) incorporates the Victims Bill of Rights Act of 2008, known as Marsy s Law. This provision affords crime victims the following two pertinent rights: To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody. To have the safety of the victim, the victim s family, and the general public considered before any parole or post-judgment release decision is made. Under the policy, victims are not notified when ICE holds are not honored, which fails to uphold both of these rights. These considerations have an impact on the victims of crime. An example is one victim who sought and received a Stay Away Order (see above) against a defendant convicted of assault with a deadly weapon. The victim said to the Court, I did not suffer monetary loss in this incident. However, my emotional and mental stress was devastating. Until now I suffer mentally; worrying that this person might get out soon and might harm me or some other person.... The current policy fails such victims. Conclusion We urge changes to the County s current policy, which causes us to ignore all ICE detainer requests. We propose removal of the language regarding a written agreement for reimbursement, and a change in the types of crimes covered to include all felonies except drug use or drug possession, multiple driving under the influence convictions, defendants who are validated gang members, and those who have previously been convicted of a dangerous felony. By making these changes, the County will protect public safety by removing dangerous offenders from our county, protect taxpayers dollars by reducing costs being spent to supervise these offenders on probation, and protect victims rights by ensuring that they can learn of the status of defendants and ensuring that public safety is considered prior to their release. CONSEQUENCES OF NEGATIVE ACTION Page 4 of 5
If this recommendation is not approved, the County will continue to compromise the safety of our residents, continue to expend funds that could be saved, and continue to fall short of its responsibility to the victims of crime. STEPS FOLLOWING APPROVAL If the recommendation is approved, specific language changes will be presented to amend Board Policy 3.54. ATTACHMENTS: Attachment A - 2011 Board Transmittals regarding Civil Detainer Policy (PDF) Attachment B - Detailed History on 110 Inmates with Non-Narcotic Felony Charges for whom ICE Hold Requests were not Honored (PDF) Page 5 of 5