Criminal Alien Assistance Funds: Wanting Your Cake and Eating It Too

By Dan Cadman on February 12, 2016

The Washington Post has published an article noting that the budget recently submitted by the president would zero out the State Criminal Alien Assistance Program (SCAAP), which provides funding not only to states, but also to localities for the cost of jailing deportable alien criminals.

The funding has never fully reimbursed states and localities for the costs, given the number of aliens in jails and prisons and the length of their sentences for any number of serious crimes, but it's still a pretty good chunk of change for at least some states, as well as high-volume jurisdictions like the Los Angeles County Jail, New York City Corrections, and Cook County, Ill., among others.

The idea behind the program at statutory inception was that since immigration is a federal matter, and that the aliens, at least in theory, would not be in the country to commit crimes but for our porous borders (and, increasingly in recent years, a failed visa overstay control system). There are, of course, some flaws with that logic, not least of which has been the notorious inconstancy of Congress in providing the resources to adequately enforce immigration laws at the border or in the interior of the United States in the first place. In 1986, when the program first came into being, there were fewer than 1,200 investigators on duty nationally to police all of the country's interior.

But one can understand congressional interest in creating favor with politically savvy and powerful law enforcement officials throughout the country, such as county sheriffs and major city police chiefs, by establishing an atmosphere of good will and cooperation between law enforcement agencies nationwide and federal immigration agents charged with finding and removing alien criminals.

The problem is that recalcitrant state legislatures and city and county councils have erected barriers to such cooperation. Likewise, many sheriffs and police chiefs have adopted rules that render the jobs of federal agents much more difficult by refusing to honor immigration detainers and declining to notify agents of arrests or the release dates of aliens. This "sanctuary city" movement (which includes counties and states along with cities), having gone unchecked by the administration, has experienced mushroom-like growth — especially since the administration itself has unilaterally created policy barriers by narrowly defining when agents may even file such detainers. Not to mention the litigiousness of open-borders groups that have sued state and local law enforcement organizations for honoring the detainers (suits which, as often as not, the federal government has run from, leaving their enforcement "partners" to fend for themselves).

Still, there is something unconscionable about holding out one hand for federal money and using the other to stiff-arm federal immigration agents trying to do their job. Such is the case with California, which even as it receives tens of millions of dollars in SCAAP money, has enacted into law the "Trust Act", a statute prohibiting both state and local California agencies from fully cooperating with immigration agents or honoring detainers. This has on more than one occasion led to unnecessary deaths (see here, here, and here). Yet, amusingly, a California spokesman is quoted as lamenting the potential loss of money because of the serious impact it will have on his state, and talking about the number of alien inmates with detainers filed against them. One wonders how many would, in the end, actually be honored, and how many were rejected out of hand in the first place.

These willful and unnecessary state and local obstacles to cooperation also bring into sharp focus whether there now exists any legitimate basis for providing the funds. Needless to say, those whose ox would be gored are already gearing up their objections and reaching out to their members of Congress to oppose the zeroing-out of the fund, which most recently totaled $210 million. And to the many sheriffs and states that do offer full cooperation to immigration authorities, eliminating SCAAP is unfair and unnecessary.

It may also result in even more enforcement agencies declining to work with the federal government in removing alien criminals, as the Center for Immigration Studies Director of Policy Studies Jessica Vaughan is quoted as observing in the Post article. Being of a soundly cynical disposition where the administration is concerned, I can't help but wonder if this budget proposal wasn't put forward as a bit of lame-duck mischief; the White House's antipathy for immigration enforcement of any kind is well known.

The irony is that the fix to the problem is already available: the Department of Justice (DOJ, which administers the fund) could easily work with the Department of Homeland Security (DHS, which is obliged to "certify" aliens on the lists provided by state and local enforcement applicants for funding) to establish rules precluding uncooperative jurisdictions from being eligible. That DOJ and DHS have chosen not to do so is significant.

Of course, our Republican-majority Congress has done nothing legislatively to amend the law governing SCAAP, in order to step into the vacuum left by the administration's predictable inaction, thus leaving the matter to fester. No one's hands are clean.

It will be interesting to watch this all play out, especially in a hotly contested presidential election year in which the subject of illegal immigration is playing such a significant role. One gets the sense that we have not yet heard the fat lady sing.