On Monday, Pima County Sheriff Mark Napier issued the following statement regarding Immigration and Custom Enforcement (ICE) agents’ access to the Pima County Jail:
Sheriffs across our country are faced with the difficult and thorny issue of how to handle ICE Detainers. This is not something unique to our county. An ICE Detainer is an administrative warrant, which does not (in the opinion of most) have sufficient standing to allow a Sheriff to extend the detention of a person. Sheriffs who rely on a detainer to extend detention risk being the subject of civil litigation for a violation of the 4th amendment. However, an ICE Detainer is in fact an official communication to a Sheriff by a federal law enforcement agency that there is a prevailing public safety interest in the continued detention of a person. This is not something that should be summarily ignored by the person elected to ensure public safety in his or her respective county. A Sheriff ignoring the existence of a detainer could put their community at risk by releasing a person who would or could pose a danger to the public.
There are many potential solutions to the challenges posed by ICE Detainers. Some Sheriffs have elected to have their personnel cross-certified as immigration enforcement officers through a 287G or similar program. This is, in my opinion, a bad solution. Local law enforcement should not be proactively involved in federal immigration enforcement. Doing so can drive a wedge between segments of the community and law enforcement. Federal immigration is not our role or responsibility. Period.
Some Sheriffs have assumed the risk of continuing the detention of a person for up to 48 hours to allow transfer to ICE. While potentially protecting the public, this puts the county and Sheriff at risk of litigation due to the possible 4th amendment violation. Additionally, the county could be faced with additional incarceration costs. I am not willing to give that standing to detainers and risk expensive litigation and costs to our county. Some Sheriffs ignore ICE Detainers. While in some areas this might be a politically safe move for a Sheriff, it could put public safety in jeopardy. By virtue of the detainer the Sheriff is on official notice that a federal law enforcement agency believes there exists a sufficient criminal justice basis to extend detention of a person. In my opinion, a Sheriff abdicates his or her responsibility for public safety by ignoring a detainer.
Persons in the Pima County Detention Center with ICE Detainers have broken a law in the State of Arizona, hence they are incarcerated. The person is believed to be in this country without proper documentation and federal law enforcement has established cause for extension of the detention of the person, hence the presence of the detainer. As you can see from the attachment, there are a relatively small number of persons in our Detention Center who have ICE Detainers, about 4% of the total population at any given time. You can also see from this snapshot that the overwhelming majority of these persons (98%) have been arrested for felony violations occurring in our State. It is important to separate emotion, politics, rhetoric and ideology from the true nature of the issue with respect to detainers. Persons on both sides of this issue will always attempt to use the exception to prove the rule driven by their respective ideology.
As your Sheriff, I am faced with the same difficult issue of how to address ICE Detainers. Previously, we contacted ICE when we became aware a person subject to a detainer would be released. Approximately 90% of the time, ICE would be able to respond to the Detention Center and take custody of the person prior to completion of the release process. The 10% failure rate of this process was troubling to me. We did not want a person who fell into that 10% to potentially pose a risk to public safety.
I have tried to find an apolitical, reasonable and appropriate solution. Clearly, attempting to balance community sentiment, the charged political environment and public safety with respect to detainers is a tremendous challenge. I am a member of the National Sheriffs’ Association (NSA) and Major County Sheriffs of America (MCSA). Both organizations recommend, as a best-practice approach for addressing detainers when possible, to place an ICE representative in your jail. This allows for a direct handoff of a person with a detainer when the person is released on local charges. A 100% success rate. This ensures public safety and does not involve any of the bad solutions previously discussed. We avoid becoming proactively involved in federal immigration, reduce liability exposure and costs, and ensure the public is not placed in jeopardy due to the release of a person who could pose a public safety danger that federal law enforcement has provided notice should be detained. This is why we have ICE representatives in our Detention Center. Our county incurs no costs due to ICE presence, as they inhabit a small desk and chair in an otherwise unused cubicle.
I understand this is a very charged issue. I have addressed this issue in a thoughtful, reasonable, and appropriate manner and used a best practices approach guided by national organizations. Finally, as your Sheriff I am committed to not being guided by politics, emotion, ideology or political pressure, but rather to be dedicated to the charge of my elected office: public safety in our county. ICE representatives are in our detention facility because it is currently the best solution to a very difficult and challenging problem.