Immigrant Release Could Ease CA Jail Overcrowding

Jan. 11, 2013

By Dave Roberts

California generally remains more open to immigration than other states. But it still faces a problem of what to do with immigrants who are suspects in serious crimes.

This has been made more complicated by California’s 2011 budget realignment process, which has been transferring inmates from state prisons to county jails. Many of these inmates are immigrants who have been arrested and held without bail. Their large numbers have placed pressure on local law enforcement officials to find ways to make room for the influx.

One of the options is to rebuff U.S. Immigration and Customs Enforcement requests automatically to deny bail to suspected illegal aliens. Some Democrats officials and the American Civil Liberties Union want released tens of thousands of those arrested and held without bail while awaiting trial.

Last year, AB 1081 by Assemblyman Tom Ammiano, D-San Francisco, would have prohibited county law enforcement officials from detaining anyone based on an ICE hold request if the defendant would otherwise be eligible for release and was not charged with or previously convicted of a serious or violent felony. It passed the Legislature last session, but was vetoed by Gov. Jerry Brown.

“Unfortunately, the list of offenses codified in the bill is fatally flawed because it omits many serious crimes,” wrote Brown in his veto message. Those crimes include child abuse, drug trafficking, selling weapons, using children to sell drugs and gang-related crime. “I believe it’s unwise to interfere with a sheriff’s discretion to comply with a detainer issued for people with those kinds of troubling criminal records.”

Brown added that he would work in 2013 with the Legislature to fix the bill’s “significant flaws.” As a result, the bill that was dubbed the “Trust Act” will be back this year.

Assemblyman Tim Donnelly, R-Twin Peaks, last year slammed it as the “Anti-Trust Act.” But in 2013 he’s part of the minority Republicans in a Legislature now dominated by Democratic supermajorities.

ACLU lawsuit

In the meantime, the ACLU has filed a lawsuit against the Los Angeles County Sheriff’s Department, seeking an end to compliance with ICE immigration hold requests. Nearly 20,000 arrestees, who otherwise would have been eligible for release on bail from LASD custody, were instead detained on immigration holds in 2011, according to the ACLU.

“Unlike warrants, [immigration holds] are issued without any judicial determination of probable cause, and are frequently issued in error,” said the ACLU in a press statement. “About 2,100 inmates each day — or 14 percent of the daily jail population — have ICE holds lodged against them in the L.A. County jails. On average, they spend nearly three weeks longer in jail than inmates without immigration holds, despite being better candidates for release or other diversion programs.”

The ACLU argues that ICE hold requests are unconstitutional.

“Our Constitution guarantees that law enforcement cannot jail residents without probable cause to believe they’ve broken the law,” said Jennie Pasquarella, staff attorney at the ACLU of Southern California. “But LASD holds thousands of people each year beyond their release dates, simply because ICE says they would like to investigate whether they may be removable. In this country, the government can’t lock someone in jail at the start of the investigation, it can only do so if it investigates and finds good cause to do so.”

The lead plaintiff in the class action suit is Duncan Roy, a British filmmaker who spent 89 days in Men’s Central Jail on an ICE hold. He was denied medical care for prostate and colon cancer, according to the ACLU. ICE finally lifted his immigration detainer on humanitarian grounds, allowing him to post bail.

“It’s important that people realize that this could happen to anyone,” Roy said. “It’s not just undocumented immigrants. I’m lucky that I can get out and be heard — many of the people I met in there can’t.”

Secure communities

An immigration hold request is the main tool of ICE’s Secure Communities program. It targets those suspected of being in the U.S. illegally and who have been arrested for violation of local, state or federal law. More than 90 percent of the 19,725 ICE holds provided by LASD in 2011 were Hispanic males, according to a JFA Institute study.

“The highest priority of any law enforcement agency is to protect the communities it serves,” states ICE on its website. “When it comes to enforcing our nation’s immigration laws, [ICE] focuses its limited resources on those who have been arrested for breaking criminal laws. ICE prioritizes the removal of criminal aliens, those who pose a threat to public safety, and repeat immigration violators.”

ICE’s goal of keeping communities safe from suspected criminal aliens is also under assault from California Attorney General Kamala Harris. She recently told local law enforcement agencies that compliance with ICE immigration hold requests is voluntary, according to the Los Angeles Times. More than a fourth of defendants with ICE holds from March through June 2012 were not convicted of crimes. The LASD welcomes the flexibility of making compliance with ICE hold requests voluntary, said a department spokesman.

There was also not a lot of love for immigration holds at a recent hearing on bail reform by the state watchdog agency, the Little Hoover Commission.

“This is an abuse of process that we have here in California where the federal government can put immigration holds on anyone that they suspect of being here without documentation,” said Albert Ramirez, a Fresno bail bondsman attorney. “These people who are subject to these immigration holds … are stuck in custody.”

Immigration-hold inmates contribute to jail overcrowding, observed Commissioner Jonathan Shapiro, who is a former federal prosecutor. That’s particularly problematic in the more than a dozen counties whose jails are under a federal consent decree to reduce overcrowding, resulting in “catch and release” of criminal suspects.

“Those of us who care about local control, the federal government is denying local control to those counties by determining who’s going to be in those beds through the use of these immigration holds,” said Shapiro.

Commissioner Jack Flanigan said the cost of immigration holds should be borne by the federal government.

“Why wouldn’t a solution be to offer those individuals the opportunity for bail and then say to the feds, ‘Here he is — if you want to hold him you have the opportunity to do that. Put him in a federal facility, so that it makes room in a California facility.’ And if they don’t take it seriously enough, then [let them] go out on California bail.”

Inmate explosion

Realignment has resulted in California’s jails filling at a greater rate than expected, said Nevada County Sheriff Keith Royal in an interview.

“As I look statewide at what’s happening in counties in the state, routinely I see two to three times the numbers of individuals being sentenced locally than had been projected by the CDCR [California Department of Corrections and Rehabilitation] than when we began down this road,” said Royal, who is also president of the California State Sheriffs’ Association. “You’re further exacerbating available space. What it ends up doing is to become creative on how you deal with those sentenced to your facility. We are increasing the number of people that can be monitored by GPS ankle bracelets in home detention.”

Available space is also impacted by the longer sentences now being served in jail. A prisoner in Santa Barbara is serving 23 years; one in Yolo County is doing 19 years, according to Royal. He warned that failure to deal with the crowding problem can lead to lawsuits.

“Many prisoner rights organization are always looking for the deep pockets and looking at taking on local jurisdictions over rights issues, one being crowding,” said the sheriff. “Another being can we provide adequate medical care for those in our custody.”

But Royal is confident there are benefits from transferring less violent/serious criminals to local control. “We all believe we can do a better job than the state has done,” he said. “And, hopefully, have a greater success regarding recidivism rates.”

Another reform discussed at the commission hearing was providing statewide uniformity in bail amounts. Currently, each county sets its own bail. For example, the bail for grand theft is $10,000 in Kern County and $50,000 in neighboring San Bernardino County. Bail for drug possession in Alameda County is $10,000, but just $5,000 in Sacramento County.

“Isn’t it discriminatory to have a system in which each county gets to determine whether or not somebody gets their Eighth Amendment right to bail?” asked Shapiro. Fresno County Sheriff Margaret Mimms and others countered that each county should be able to set its own bail schedule based on its public safety priorities.

Other possible reforms discussed: reducing bail amounts, providing a statewide bail schedule guideline, holding public hearings on bail schedule updates, eliminating bail stacking (additional bail for each offense rather than taking the highest bail for one offense), and publishing bail schedules on the Internet.