Deporting Criminal Suspects

By Jon Feere and Jon Feere on March 24, 2010

The criminal justice system and the immigration enforcement system often operate independently, like two trains on parallel tracks. Although communication between law enforcement and federal immigration officials has improved dramatically over the past decade, there remain some loopholes and inconsistencies. When communication is strong, a criminal illegal alien picked up by local authorities is reported to ICE as soon as he is taken into custody and then turned over to ICE for deportation at the end of any jail term. When communication is lacking, ICE may deport a criminal alien suspect without any notification to local prosecutors, who may be in the process of trying to build a case. At worst, local authorities may release an illegal alien without ever reporting him to ICE or determining the individual's status at all.

One part of this problem – the deportation of suspected criminal illegal aliens before a trial can be held – was the focus of a recent TV news interview in which I participated. The problem is something that has been experienced in a number of jurisdictions: see here, here, and here. It arises when local law enforcement agencies do not ascertain the immigration status of criminal suspects, and an illegal alien is granted bail by the criminal justice system and is released with an understanding that he will return for trial at a later date. While out on bail, federal immigration authorities may detain and deport the illegal alien based solely on his immigration status, without notice to the local or state prosecutors. In many cases, ICE may not even know that the alien is a suspect in a criminal trial.

In some sense, this is the result of ICE doing a better job of removing illegal aliens, and most Americans would say this is a good thing. But the concern is whether state and local interests are being met. Victims, and the public at large, have an interest in seeing perpetrators punished for their crimes. Only through a trial can society determine whether the suspect is, in fact, the perpetrator or whether the real suspect remains at large and the investigation should continue in the interest of public safety. A criminal trial is also useful for the purpose of having an accurate criminal record so that if law enforcement ever encounters the alien again, they will know they're dealing with someone who is more dangerous than the average illegal alien. Most importantly, the trial may be useful in getting the illegal alien removed in the first place.

It's important to remember that deportation is not punishment, as the Supreme Court has made clear. It is simply an administrative procedure whereby an alien is returned to his or her homeland. Consequently, criminal aliens who do not serve jail sentences for crimes they committed are in some sense getting U.S. taxpayer-funded flights home to vacation with relatives. While this may mean that a violent criminal has been taken off the streets, justice is simply not being served to the extent that it could be.

This is largely an issue of communication and standardization processes, both of which are improving as state and local authorities play a larger role in our immigration system. The biggest fix would be a requirement that state and local law enforcement determine a suspect's immigration status upon arrest and set high bails for illegal aliens, thus ensuring criminal alien suspects remain in jail. Some states, like Virginia, have put into law a presumption against bail for illegal aliens. It is a matter of striking the right balance between criminal law and immigration enforcement.

Dallas/Fort Worth News 8 (WFAA) has produced an award-winning series on this issue. I was interviewed for the latest video which is available online.