Statement on H1228, The "Trust" Act

Prepared for the Massachusetts Legislature

By Jessica M. Vaughan on September 23, 2015
Summary. If enacted, the so-called "Trust Act," which is essentially a sanctuary policy for criminal non-citizens, would create needless public safety problems in our communities, while imposing unreasonable (and illegal) restrictions on Massachusetts law enforcement agencies. Sanctuary policies do nothing to build trust between immigrant communities and local law enforcement. They do not improve access to law enforcement services for immigrants; nor have they been shown to increase the likelihood that more immigrant crime victims will report crimes. On the contrary, they destroy the trust of the community at large that the laws will be faithfully enforced to preserve the quality of life for all.

This bill is designed to obstruct federal immigration law enforcement authorities (ICE) from taking custody of deportable non-citizen criminals by:
  1. Prohibiting state and local law enforcement agencies (LEAs) from holding criminal aliens who have been arrested that ICE is seeking to deport;
  2. Prohibiting state and local LEAs from allowing ICE officers into jails and prisons;
  3. Prohibiting state and local LEAs from notifying ICE when a criminal alien is scheduled for release; and
  4. Prohibiting state and local LEAs from transporting criminal aliens to ICE custody.

This is the very same sanctuary policy in place in San Francisco and other sanctuary jurisdictions; a policy that has resulted in needless victimization of innocent people by offenders who should have been deported but instead were protected by local "Trust Act" policies.

According to an ICE report, from January 1 to August 31, 2014, there were more than 8,100 deportable aliens who were released after arrest or incarceration in local sanctuary jurisdictions, even though ICE had issued a detainer seeking custody in advance of deporting them. Most of these were in California, which has adopted a state-wide "Trust Act." More than half of these offenders (62 percent) had a prior criminal history. Roughly 3,000 were felons.

Of the 8,100 aliens who were released to the streets instead of to ICE, approximately 1,900 were later arrested 4,300 more times, on 7,500 different charges — in just the eight-month period of the study.

Some of the released criminal aliens committed very serious crimes after their release. The most notorious examples are murders, including Kate Steinle in San Francisco, Marilyn Pharis in Santa Maria, Calif., and Brianna Valle, in Romeoville, Ill. Other crimes by offenders released under "Trust Act" policies have not made the headlines, but are also serious. For example, ICE tried to get custody of an alien arrested in April 2014 by a Los Angeles law enforcement agency for "felony continuous sexual abuse of a child," but the local LEA ignored the detainer, as per the "Trust Act" requirements. This offender was later arrested for "felony sodomy of a victim under 10 years old." In November 2013, ICE issued a detainer for a prior deportee arrested in Santa Clara County, Calif., who also had multiple prior drug and theft convictions. After his release by the locals, he was later arrested for theft, burglary, and "felony resisting an officer causing death or severe bodily injury."

Other specific examples of serious cases arising from "Trust Act" policies are included in this report and my testimony on the topic before the U.S. House Judiciary Committee.

Additional concerns:

H1228 is contrary to federal law. Federal law (8 USC 1373) states that no state or local government may in any way restrict communication between local officials and ICE. Paragraph (6) of the new Section 41 written in this bill, found in Lines 64-66, does precisely that. There is a meaningless disclaimer that follows the language, but that is unlikely to hold up in federal court, because the plain intent of the bill is to restrict communication between local LEAs and ICE.

ICE detainers and administrative warrants are not unconstitutional, as "Trust Act" proponents frequently claim. ICE's use of detainers and administrative warrants is strictly governed by federal law and regulation, and these legitimate tools of enforcement are not inherently a civil rights violation. The argument that ICE should obtain criminal or judicial warrants, frequently made by "Trust Act" proponents, to make administrative arrests is absurd, because such warrants do not exist and are not appropriate anyway.

Obstructing immigration enforcement will not address issues of community distrust of law enforcement. Ample research has shown that reluctance to report crimes can be a problem in immigrant communities — just as it is in communities that do not have many immigrants — but that the issue is not related to immigration enforcement, so much as language barriers and lack of understanding of how the American criminal justice system works. Rather than suppressing the legitimate enforcement of immigration laws against criminal offenders, a more constructive approach would be to do more aggressive outreach to immigrant communities to spread the message that victims of crime and witnesses, no matter what their immigration status, are NOT targets for ICE.

Many cities and towns in Massachusetts have very effective, award-winning community policing programs that address issues of access to police services and crime reporting. These include anonymous tip lines to report crimes, officers who speak the languages of the community, outreach programs that include immigrant community leaders, and other approaches that are much more effective and do not threaten public safety or involve obstructing immigration law enforcement.

If state and local LEAs are forced to block immigration enforcement, ICE will have to make arrests on the street, in work places, and in residential areas. This approach is costly, intrusive, disruptive, and can be more frightening to others in the community. Moreover, when ICE officers must confront and arrest criminal offenders on the street, it can be dangerous, both to the officers and potentially innocent bystanders. The vast majority (85 percent) of illegal aliens targeted by ICE have serious criminal convictions. Think about it — where would you rather arrest an illegal alien gang member, in a jail, or in his apartment?

The policies embodied in the "Trust Act" do not increase public trust of law enforcement or government; they protect only the criminals. Because of the public safety problems created by releasing deportable criminal offenders, many sanctuary jurisdictions are reconsidering these misguided policies. Immigration enforcement plays an important public safety, national security, and fiscal responsibility role in our communities. The legislature should not force state and local law enforcement agencies to obstruct it.