Travis County, Texas, home to the state capital Austin, has been in a long-running battle against Republican state elected officials who have claimed the liberal haven has adopted policies that endanger the public. Governor Greg Abbott claims that Travis County’s refusal to abide by all immigration detainers “is not a pronouncement of sound public policy; it is a dangerous game of political Russian roulette — with the lives of Texans at stake.” In response, the governor directed the state’s criminal justice division to cut off approximately $1.5 million in state funding that was slated to go to the county, including funding for rehabilitation services and a court specifically for veterans.
The Travis County policy regarding immigration detainers that has irked Governor Abbott so thoroughly is a new development. As a key campaign promise, newly-elected Sheriff Sally Hernandez instituted the policy on January 20, the day President Trump took office. This isn’t the first time Governor Abbott has taken issue with local law enforcement decisions about immigration detainers. In October 2015, he focused his anger on a decision by the sheriff of Dallas County to limit detainer compliance. Last week a committee of the Texas Senate heard sixteen hours of testimony about a bill that would require law enforcement agencies to comply with immigration detainer requests. The bill, Senate Bill 4, was approved by the State Affairs committee after a party-line split. It is currently pending before the full Texas Senate.
Many law enforcement agencies throughout the United States refuse to comply with all immigration detainers or limit cooperation to a subset of detainers targeting people charged with serious crimes because multiple federal courts have found that immigration detainers violate the Fourth Amendment to the U.S. Constitution. So far, Travis County has adamantly refused to violate the Fourth Amendment for the sake of state funding.
This week the plot thickened as federal prosecutors became involved, according to news reports. Last Friday, the U.S. Attorney’s Office in Austin obtained warrants from a federal judge authoring arrest of 42 people being held by the Travis County Sheriff. The arrest warrants claim that federal prosecutors have probable cause to believe that these individuals entered the United States without the federal government’s permission, a crime known as “illegal entry” or “unauthorized entry.” A first-time offense for illegal entry, INA § 275, carries a maximum prison term of two years, but the median in recent years has been closer to 18 months. Between 1994 and 2013, far more people were taken into the custody of the U.S. Marshals Service, the federal entity responsible for holding everyone charged with a federal crime, due to an immigration offense than any other type of federal crime: 890,517 immigration suspects compared to 609,923 drug offense suspects, the next highest category.
A news report indicates that the Travis County Sheriffs Office did not alert federal prosecutors to the presence of these 42 people. Instead, federal prosecutors reportedly learned of that these people had been booked into the Travis County Jail “by mining a federal law enforcement fingerprint database, which is routinely updated by the county jail staff.” Presumably this is the FBI’s “Next Generation Identification” system which is replacing its older IAFIS database of fingerprints.
Sidestepping local law enforcement officials by obtaining a judicial warrant strikes me as legally permissible, but troubling nonetheless. Unlike many European countries, the federal government and state governments are legally empowered to run independent criminal justice systems. In fact, the federal criminal justice system is tiny in comparison to the states’ collectively. Most crimes are state crimes and therefore most investigations, arrests, prosecutions, and convictions are performed by state officials.
That appears to be exactly how things were working here until federal prosecutors informed the Travis County Sheriff that they had obtained arrest warrants for 42 people booked into the county jail. The federal government, it seems, wants to stop Travis County prosecutors from moving forward with their criminal cases. As a spokesman for the U.S. Attorney’s Office reportedly said, “In the past we might review them after state proceedings concluded….We are now reviewing them before the state has completed their proceedings.” Without a doubt, federal prosecutors hope to shortchange the state criminal process in favor of federal prerogatives. This resonates with President Trump’s interior enforcement executive order prioritizing “the prosecution of criminal immigration offenses” (§ 11). Despite immigration crimes having comprised the largest category or two of all federal crimes prosecuted in recent years, we can expect to see an increase in these prosecutions if the federal government sends additional resources for these crimes to local U.S. Attorney’s Offices.
Despite Governor Abbott’s promise to “hammer Travis County” because, in his view, the sheriff isn’t doing enough to protect Austin residents, Sheriff Hernandez doesn’t claim to have no interest in working with ICE. All the policy that she instituted does is reduce instances in which the sheriff’s office is willing to violate the Fourth Amendment to those in which people are booked into the county jail because they are suspected of having committed serious crimes. In all other instances, Sheriff Hernandez merely wants ICE to do what law enforcement officers in the United States have done for hundreds of years—get a warrant signed by a judge.
Where does this leave local officials trying to use their limited law enforcement resources to best promote public safety? One route currently available to elected officials is to limit the number of people who are booked into their custody. Booking involves gathering key biographical information that is submitted to the FBI’s criminal history databases and sifted through the Department of Homeland Security’s databases. Normally this happens at the time someone is taken into the law enforcement entity’s custody—i.e., as soon as an arrestee in processed into the local jail.
To avoid flagging the existence of a particular person for ICE, local law enforcement agencies could avoid booking people into their custody where possible. One option is already available in Texas. State law currently gives law enforcement officers the discretion to not arrest a person charged with certain minor crimes. Instead, the officer can issue a citation and release the individual with an order to appear before a judge at a later date. Texas Code of Crim. Proc. § 14.06. The University of Texas Police Department, for example, uses this discretion to cite and release students caught with up to two ounces of marijuana. The Austin Police Department uses the cite-and-release power for low-level offenders as well. More expansive use of the cite-and-release authority would limit the number of people taken into police custody and thus introduced to the immigration detention and deportation pipeline.
Even cite-and-release, however, can’t keep everyone suspected of a minor crime from being arrested, booked into jail, and popping up on ICE’s radar. So long as there are police officers ever-present in communities, some people will be arrested and hauled to jail. I’m frequently surprised that advocates interested in cutting off entryways to the immigration detention and deportation pipeline don’t spend more time talking about the number of police officers in the United States. To be fair, it’s surprisingly difficult to know how many police officers are employed in the United States. There are roughly 18,000 law enforcement entities throughout the country. The Justice Department’s Bureau of Justice Statistics reported that, in 2008, these agencies collectively employed 1.1 million full-time officers. The FBI’s Uniform Crime Reporting Program counted 1.1 million in 2012. The Census Bureau tallied a slightly lower number for 2012: 891,000. Each counts a slightly different range of entities so some variation is to be expected. Whatever the actual number, it’s clear that there are a lot of law enforcement officers available for deployment in communities throughout the country daily. Every one of these can initiate an encounter that can lead to booking and, eventually, flagging for ICE.