By César Cuauhtémoc García Hernández and Christopher N. Lasch
After suffering a party-line defeat in a state House committee last month, Republican state legislators in Colorado are once more attempting to coerce cities, counties, school districts, and law enforcement agencies to entangle themselves in immigration enforcement. The “Colorado Citizen Protection Against Sanctuary Policies Act” (Senate Bill 281), like the Republicans’ earlier failed bill, is a wrong-headed effort to solve a largely nonexistent problem.
Perpetuating the myth of immigrant criminality
Following the Trump administration’s lead, Senate Bill 281 claims that “sanctuary” policies endanger the “safety and welfare of the people of Colorado.” The President, and now Attorney General Sessions, regularly trot out anecdotal evidence in an attempt to support this claim, suggesting (without proof) that “countless” U.S. citizens “would be alive today” but for sanctuary policies.
Similarly here, testimony supporting S.B. 281 is likely to consist largely, if not exclusively, of stories from witnesses impacted by the crimes of noncitizens. (That was how the failed bill in the House was presented.) Such stories are of course available because, like members of every socially identifiable group, immigrants do sometimes commit crimes.
The reality, however, is that immigrants commit less crime than people born in the United States. Study after study has come to this conclusion. In his analysis of violent crime in Alexandra, Virginia, Houston, and Miami, Jacob Stowell concluded, “when a significant direct relationship between immigration and violence was observed, the effect was in a negative direction.” Focusing on Chicago, Jeffrey Morenhoff and Avraham Astor came to a similar conclusion. So did Matthew Lee and Ramiro Martinez, Jr.’s study of homicide in Asian communities in and near San Diego. Introducing the 1,000-page Oxford Handbook of Ethnicity, Crime, and Immigration, Michael Tonry noted, “One consequence of high levels of legal and illegal Hispanic immigration is that their presence is credited with contributing significantly to the decline in American crime rates since 1991.”
Ignoring the consistent conclusions of numerous studies, S.B. 281 offers a solution in search of a problem.
While S.B. 281 claims it would benefit public safety, by virtue of its connection to the illusory problem of immigrant criminality, in fact it threatens to endanger the very Coloradans it claims to protect. The likely result of S.B. 281 would be to push immigrants further into the margins of our communities. And when that happens, everyone suffers. Like United States citizens, immigrants occasionally fall victim to crime. Sometimes they witness crimes. Police officers and prosecutors everywhere rely on crime victims and witnesses to bring the perpetrators to justice. But proposals like S.B. 281 instill fear in immigrant communities that drives them further away from police and prosecutors. In Denver, city prosecutors were forced to drop domestic violence charges in four cases because witnesses stopped cooperating out of fear that they would end up in the hands of immigration agents. Reports from Los Angeles and Houston show that domestic abuse and sexual assaults complaints have plummeted in Latino communities since President Trump took office.
Local policies that disentangle local government from immigration enforcement provide noncitizen residents a measure of confidence and trust, which is essential if they are to come forward as witnesses and crime victims. Coloradans won’t benefit from policies that push immigrants into the shadows.
Surrendering Colorado local decision-making to the federal agenda
S.B. 281, in a most un-Republican way, pushes policy and fiscal decisions up to the federal level, away from local decision makers.
The bill adopts President Trump’s policy on sanctuary jurisdictions as state policy, reciting verbatim the President’s objective of “ensur[ing], to the fullest extent of the law,” compliance with a long obscure federal statute: 8 U.S.C. § 1373 (“Section 1373”).
President Trump and Attorney General Sessions have made much of Section 1373 in recent months, but they have been barking much louder than the law bites. Adopted by Congress and signed into law by President Clinton in 1996, Section 1373 is very narrow, restricting only local limits on sharing immigration and citizenship status with federal immigration officials. Most so-called “sanctuary” policies do not conflict with Section 1373; it is a red herring that has been offered by the administration to bolster its claim that sanctuary jurisdictions somehow flout federal law.
More importantly, Section 1373 is subject to serious constitutional criticism, on the ground that it arrogates to the federal government powers reserved to local government. Ilya Somin argues convincingly that Section 1373 violates the Tenth Amendment because it is an attempt by the federal government “to prevent states from controlling their employees’ use of information that ‘is available to them only in their official capacity.’” Bernard W. Bell likewise concludes that “Section 1373 probably violates the anti-commandeering doctrine and related federalism principles.”
Rather than standing up for Colorado localism, the Republicans, with S.B. 281, suggest that they prefer to serve up local government to federal control.
Also left in the hands of federal decision makers is the determination of what constitutes a “sanctuary” jurisdiction under the bill. An official notification from the Department of Justice or the Department of Homeland Security has conclusive weight in defining a locality as a “sanctuary jurisdiction” under S.B. 281. These federal departments would have unreviewable authority to make decisions that punish Colorado localities, by cutting off state funding altogether and waiving sovereign immunity. These punishments, of course, would be in addition to the federal de-funding promised by President Trump’s executive order (and currently the subject of litigation in five separate federal lawsuits).
* * *
Ultimately, S.B. 281 puts the Trump administration’s agenda ahead of the interests of Coloradans. The bill puts Colorado taxpayers at the mercy of federal decision makers, and threatens public safety, all in the service of pursuing an anti-immigrant agenda based on a myth.
César Cuauhtémoc García Hernández is an assistant professor of law at the University of Denver Sturm College of Law and publisher of crimmigration.com. Christopher N. Lasch is an associate professor of law at the University of Denver Sturm College of Law and co-director of the school’s Criminal Defense Clinic.