The Center's Director of Policy Studies, Jessica Vaughan, has written a couple of posts lately touching on the subject of criminal alien sanctuaries and federal grant funding to state and local law enforcement agencies. The first noted that Rep. John Culberson (R-Texas), the chairman of the House subcommittee controlling Department of Justice (DOJ) appropriations, sent a pointed letter to the attorney general (AG) asking how such sanctuaries could legitimately claim in their grant applications that they were in compliance with all federal laws given their refusal to honor immigration detainers or fully communicate with agents of Immigration and Customs Enforcement (ICE).
The second observed that DOJ's response, via testimony of the AG as well as an accompanying letter from one of her assistant AGs, was heartening in that, for the first time, the administration was acknowledging its obligation to monitor grant recipients and take appropriate criminal or civil action against jurisdictions that claim to be in compliance when in fact they are not.
A copy of the AAG's response letter can be seen here, and the AG's testimonial remarks were carried by several media outlets (see, e.g. here, here, and here). Rep. Culberson was enthused: "We all owe a debt of gratitude to Loretta Lynch for doing the right thing. This is a big step in the right direction.''
While it is indeed a step in the right direction, ultimately the proof will only be in the pudding — if in fact that pudding is ever baked. To date, we only have a vague promise from DOJ to investigate, and only upon a "credible allegation" that an agency receiving funds has "violated a specific, applicable federal law." We have no idea what those words and phrases mean because the Bureau of Justice Assistance (BJA, the organization in DOJ that gives out the money) doesn't seem to have any procedures in place that speak to the issue; I could find none on their website and a similar search of DOJ's Office of Inspector General (OIG) website resulted only in discovery of a page stating that the OIG found no evidence of non-compliance on the part of BJA and ICE in relation to State Criminal Alien Assistance Program funding (one of the grant programs in question). This is ironic. Did it never occur to the OIG that the entities that should be audited were those receiving the money?
I am also bothered by the announcement that henceforward DOJ's Bureau of Prisons (BOP) will give ICE first crack at alien inmates who are also wanted by state and local jurisdictions — either for new criminal offenses or for violations of the conditions of their state parole or probation. Per this new policy, ICE can choose to take custody and initiate deportation proceedings, or defer to the state or local agency to pursue its proceedings first. I see several flies in that ointment.
First, in my view, it's a deflection tactic, the equivalent of the AG pointing her finger at the sky and shouting "Look up there!" to Congress, while wiggling the fingers of her other hand behind her back to signal her sanctuary-minded state and local cohorts to make themselves scarce. That's because what BOP does or doesn't do alters nothing with regard to state or local jurisdictions choosing to let ICE take custody of alien criminals or, conversely, letting them return to the streets. As Vaughan noted in her second blog, "[M]ost of the criminal aliens who are getting released around the country are not coming out of federal prison, but are in local custody."
So we come full circle to ask whether there will be any meaningful change in the behavior of sanctuary jurisdictions. The answer to that depends entirely on whether DOJ is serious when it says it will begin considering criminal or civil charges against those who misrepresent their rules and policies when seeking grant funds. Equally important will be whether BJA initiates a process that requires those jurisdictions to pay back funds already provided, and debars them from future applications on a finding that they have a policy of refusing to cooperate, and do not reveal that on their grant application.
The other fly in the ointment of this BOP policy of giving ICE "the right of first refusal" is that it isn't really in the public interest to deport aliens who are wanted by state or local enforcement agencies for serious crimes. The better public policy is to ensure that they are prosecuted and, if convicted, serve their sentences, after which they should be turned over to ICE for removal. ICE itself is cognizant of this and (as did its predecessor, the Immigration and Naturalization Service) has a general policy of notifying wanting agencies to give them the option of executing their outstanding criminal or parole/probation violation warrants.
Thus, the only thing this new policy does is shift the onus to ICE to make what can become a Hobson's choice. That's because, unfortunately, some state and local officials are so willfully stupid that, even when they are given custody of individuals by ICE, they still refuse to tender them back again when finished with their process. This is what happened in the infamous Kate Steinle murder case in San Francisco. While I'm told that ICE has become more astute in demanding written assurances from the wanting agency, in advance, that they will receive the criminal alien back again after the criminal or parole/probation violation process is over (and any sentence served), the very fact that they are obliged to go to such convoluted lengths reflects how sadly out of kilter the status quo has become.
And who is to blame for that? Why, the Obama administration, which for years has encouraged the open borders movement with a wink and nod, has tolerated a proliferation of state and local sanctuary laws, ordinances, and policies, and has left its partners — the ones who want to cooperate — dangling in the wind at the first sign of lawsuits over having honored immigration detainers: the self-same administration that now asks us to trust them to change their minds and do the right thing.
As I said, I'm encouraged by these first steps and pronouncements. On the other hand, as President Reagan famously said, quoting a Russian proverb: "Trust, but verify."