Miami-Dade and Broward county jails have stopped detaining immigrants for the federal government at taxpayers’ expense. Florida’s other jails and prisons should do the same.
Every year, more than 130 of Florida’s jails and prisons detain tens of thousands of immigrants for the federal government on what are called “ICE detainers” or “immigration holds.” Foreign nationals arrested on charges as minor as driving with a suspended license are often held long after posting bond and even after their criminal charges are resolved.
In fact, a number of U.S. citizens have been mistakenly held by jails on ICE detainers solely because of their appearance or accent. This detention costs Florida taxpayers millions of dollars annually in unreimbursed costs.
Detaining immigrants for the federal government imperils the safety of our neighborhoods by discouraging immigrants from cooperating with the police. When police are viewed as enforcers of immigration law, immigrant crime victims and witnesses are reluctant to come forward. The Major Cities Chiefs Police Association has cautioned that commingling crime control and civil immigration enforcement “would result in increased crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes.”
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Florida counties are under no obligation to honor immigration detention requests. The feds have acknowledged that their “detainers” are no more than requests, and a federal appeals court held earlier this year that our Constitution prevents the federal government from forcing states and localities to lock people up.
In fact, our jails can be sued for holding immigrants for federal immigration authorities. The Constitution prohibits any person from being deprived of liberty without probable cause determined by a neutral arbiter, usually a magistrate judge. Because ICE detainer requests are not supported by a judicial warrant, jails act illegally when they detain people based on them.
The liability faced by our jails and prisons is not theoretical. One county in Pennsylvania recently paid $95,000 in damages for illegally detaining Ernesto Galarza, a U.S. citizen, for three days. The county’s director of corrections told reporters that he “contacted federal officials ‘in the closing hours of [the] case’ to see if they would help pay, considering ‘our trouble we went through over the past three years of litigation. The answer was a resounding no. They don’t pony up for the liability we face when they make an error.’ ” In Oregon, a county paid $30,000 to Maria Miranda-Olivares, who was held in detention 19 hours after her criminal case concluded.
In the wake of these court decisions, more than 150 jurisdictions have stopped acceding to ICE detainer requests. Miami-Dade and Broward counties have wisely decided to join this growing group. Now is the time for all of our county jails and state prisons to follow suit and to decline to detain immigrants in the absence of a warrant issued by a U.S. magistrate.
Rebecca Sharpless is a board member of the American Immigration Lawyers Association, South Florida Chapter, and a faculty member of the University of Miami School of Law.