Finding a Sanctuary for Common Sense

Perhaps more than with any other issue, the Trump Administration’s actions on immigration have inspired a righteous condemnation from many — though not all — parts of the political spectrum. Many Americans regard the atrocious treatment of children of detained families with moral revulsion, to say nothing of the deplorable conditions of border detention facilities even as reported by the federal government’s own Inspector General. Where not cruel, the Administration’s policy seems simply nonsensical; consider the many experts who believe that a larger or longer border wall will do little to deter drug smuggling and even less to deter undocumented immigrants who overstay their visas — more than twice as many as are apprehended at the border each year.

Our character as a nation and our values are tested by our response. We should advocate for change, but how we advocate matters. I have spent many hours on Capitol Hill lobbying for comprehensive immigration reform over the past half-dozen years, undoubtedly joined by thousands of others. Where we lack votes in Congress, we challenge through the courts, as we did to protect San Jose’s 20,000 “Dreamers” in 2016.

Our Response

But any of us who seek to demonstrate a better approach to immigration policy are obligated to offer a response superior to merely an “equal and opposite reaction” to the Administration’s actions. Proposals from some quarters to eliminate Immigration and Customs Enforcement (ICE), for example, had better clearly identify some other way to address a range of criminal activity that includes a crisis of labor and sex trafficking at the border that brutalizes thousands of victims enslaved by predatory smugglers. Amid the dizzying flurry of actions and reactions over immigration, responsible policymakers must heed Kipling’s admonition to “keep your head when all about you are losing theirs.”

Sadly, our national divisiveness over immigration only intensifies where the issue intersects with public safety. Here, each side clings to its corner, with few venturing out into the neutral ground that can facilitate productive dialogue. Each side has valid claims — one emphasizes the importance of the rule of law and the perils of lawlessness, while the other points to ample evidence that undocumented immigrants commit crime at substantially lower rates than the rest of us.

When the topic of sanctuary policies arises, the venue for our nation’s intense feud over immigration moves to our local communities. So it did, in San Jose, last February.

Bambi Larson’s Horrible Death, and the Aftermath

According to police reports, on February 28, 2019, a 24-year old undocumented, mentally disturbed man with a lengthy criminal record broke into the home of San Jose resident Bambi Larson, and brutally murdered her.

I’ll decline referring again to the name of the victim, because as Santa Clara County District Attorney Jeff Rosen eloquently put it, “[She] was a mother, not a metaphor.” She was a person, loved by family and friends who likely shudder seeing her name and her tragic death repeatedly dragged through media accounts, or injected into political debates.

Yet we must learn from history or be condemned to repeat it. Particularly here, there remains a high probability of a repeating pattern of violence — as there has been in the past, as will be discussed below — until different policy choices are made.

The County Jail’s Release Policy

On six occasions prior to that February murder, the suspect was held by Santa Clara County and Los Angeles County jail officials on other charges, and Immigration and Customs Enforcement (ICE) agents sought a detainer for his arrest each time — including only a few weeks before the murder. Each time, County authorities released the suspect back into the community, without notifying ICE of his release.

In 2017, Governor Jerry Brown signed SB54, known as the California Values Act, Senator Kevin de Leon’s legislation that established the parameters for California’s current sanctuary policy. The Values Act allows (but does not require) local law enforcement to cooperate with ICE in cases that involve criminal offenders who committed specified crimes of a requisite seriousness.

In this instance, the murder suspect was convicted previously of several prior offenses, including false imprisonment and second-degree burglary, which would have constituted offenses that would provide a permissible basis for ICE cooperation by a local law enforcement agency.[1] In other words, under state law, the County could have notified ICE of the suspect’s release on a drug charge in January, weeks prior to the commission of the February murder.

Santa Clara County’s policy regarding the release of undocumented inmates has evolved. In 2011, the County announced that it would honor ICE detainer requests only with “prior written agreement with the federal government by which all costs incurred by the County in complying with the ICE detainer shall be reimbursed.”[2] No such agreement was struck, but the County at least created a mechanism by which it could detain violent criminals sought by ICE pursuant to the receipt of a detainer. I sent a letter in 2015 requesting that the County uniformly accommodate ICE detainers in the limited circumstances in which violent criminals are to be released into the community — as other County officials, including the District Attorney, Sheriff, and Supervisors Joe Simitian and Mike Wasserman, had previously sought. Since that time, however, the Ninth Circuit Court of Appeals deemed unconstitutional any jailhouse detention of undocumented inmates beyond the duration authorized by the local criminal proceeding.

The County appropriately modified its policy after the 9th Circuit decision to clarify that it wouldn’t hold inmates on an ICE detainer under any circumstances. Yet that decision doesn’t eliminate all of the County’s options where it considers the release of an undocumented individual with a violent criminal record. Most importantly, the court has never limited a county’s ability to simply notify ICE of the time, location, and date of the imminent release of an undocumented violent offender, so as to enable ICE’s timely response and likely arrest. Santa Clara County’s refusal to do even this much — unlike similarly immigrant-friendly Bay Area counties such as Alameda, Marin, Monterrey, and San Mateo[3] — constituted the basis for many local law enforcement leaders to urge the County Board to revisit this issue on June 4, 2019.

Why Police Non-Engagement With ICE Makes Us Safer

My objection isn’t with all sanctuary-related policies; it’s with Santa Clara County’s. For a dozen years, I have consistently and emphatically supported San Jose’s determination to keep the San Jose Police Department out of federal immigration enforcement, for a simple reason: doing so makes all of us safer. Throughout my career as a criminal prosecutor, I relied on undocumented immigrant residents to call 911 about nearby gang activity, to identify methamphetamine dealers in their apartment building, or to testify in court about a sexual assault. They will fear cooperating with local law enforcement if doing so could subject them — or their family members — to deportation, a very real concern for the 40% of San Joseans born abroad.

Big-city police chiefs across America, including San Jose’s and most members of the U.S. Major Cities Chiefs Association, agree. They want their officers focused upon protecting residents from crime, not chasing undocumented immigrants who commit predatory crime at lower rates than native-born citizens. They believe that federal agencies, not local police officers, should enforce federal laws — whether they’re federal securities, tax, environmental, or immigration laws — so patrol officers can focus on neighborhood crime. With the most thinly-staffed police department of any major U.S. city, San Jose Police Chief Eddie Garcia has consistently affirmed that he needs to focus SJPD’s scarce resources on predatory crime, rather than on enforcing federal laws.

Why Jails — and Violent Criminals — Are Different

A very different calculus applies, however, when county jails house dangerous felons who are undocumented, like the suspect of the February killing. A simple phone call or email from the jail to federal authorities — notifying them of the time, date, and location of a felon’s release — could enable ICE to keep a dangerous criminal off the streets. California’s new, progressive sanctuary law, the Trust Act, allows for such notification for serious offenders.

Moreover, the rationale for non-engagement with ICE — engendering fear within the immigrant community in working with police — seems far less compelling; if 99+% of undocumented immigrants are not violent criminals, the notification policy would not apply to them. Most undocumented immigrants in San Jose never see the inside of a County jail, and have no reason to fear how the policy would affect them.

Indeed, February’s tragic killing hardly amounted to the first time that the release of a violent felon resulted in more violence. District Attorney Rosen’s letter to the County Board of Supervisors recounted two of the more egregious examples. One man was convicted in 2012 for felony assault and battery — causing the death of the victim — was released without notification to federal authorities, despite ICE’s request, pursuant to the County policy. The following year, he was convicted of strangling his girlfriend, and two years later he endured another conviction for beating a woman repeatedly in the head with a 4x6 wooden post.[4] A second man, an undocumented gang member, was released without notification of ICE by after his conviction for illegally possessing a loaded gun, again despite the issuance of a detainer. In 2018, the DA’s office convicted him of three drive-by shootings that included a homicide.[5]

This wasn’t the first time that the District Attorney cited such examples to the Board. In a 2012 report, he recounted three undocumented assailants who were previously released by the County without notification to ICE, despite the agency’s detainer: one who assaulted his ex-girlfriend, another who inflicted a 25-stitch laceration on a victim’s head, and a third who struck a two year-old child. Last February’s horrific homicide was foreseeable — tragically so.

The County Board’s Decision — and Its Rationale

Yet at their June 4th hearing, the Santa Clara County Board of Supervisors faced spirited public comment opposing any change in their policy, overwhelmingly coming from immigrant advocates invoking the need to “protect” the immigrant community. Despite pleas from the County’s District Attorney, the County Police Chief’s Association, and the San Jose Chief of Police, the Board declined to allow their jail to notify ICE of a violent criminal’s release.

In an extensive report to the Board, the County Executive asserted that ICE should be required to have a judicial warrant prior to any notification. The Board clung to this suggested warrant requirement despite the fact that federal law apparently does not even provide a means for ICE to obtain criminal warrants for civil immigration violations.[6] It also did so despite the fact that no Court has ever required a warrant for one law enforcement agency to merely notify another regarding a pending release.

Some County Board members publicly asserted that any semblance of local cooperation with ICE will undermine the trust of all immigrants in their local law enforcement — even though less than 1/10 of 1% them would be directly impacted by the policy.

Others claimed ICE could obtain the release date of most — but not all — inmates through a publicly accessible computer database anyway, so ICE had no need for the County’s affirmative communication. Yet the database doesn’t contain information about every detainee, as the County District Attorney pointed out to the Board, and even as to those inmates within the database, ICE agents would not know when or where in the County to pick up the detainee that day, and would have no secure location to do so.[7]

Ironically, the same County allowed ICE to have direct access to its own Criminal Justice Information Control (CJIC) database as recently as 2018,[8] apparently finding some principled distinction between communication through that database versus via telephone or email. Nonetheless, even CJIC lacked specificity about the timing and location of an inmate’s release.

Are Immigrant Communities Really Safer With the County’s Release Policy for Violent Criminals?

Although several immigrants’ rights groups ardently opposed any notification of ICE pending the release of violent criminals, it appears far from obvious why such a position protects the immigrant communities we all serve. First, as the County Chiefs’ of Police argued — and as the County Public Defender admitted — the release of an undocumented violent offender into the community merely prods ICE to seek to arrest him in the community, sending ICE agency’s into residential neighborhoods and workplaces.[9] Such activity imposes risk of apprehension upon other, noncriminal undocumented residents in the vicinity, and elevates fear levels throughout the community — precisely the outcome we should seek to avoid.

Second, inmates released to a community will not resettle in tony Rose Garden or Palo Alto. Overwhelmingly, they’ll live in heavily immigrant, working class and low-income neighborhoods. If they re-offend — and 50% of convicted felons in California do so — then their victims are far more likely to be other immigrants. Many members of our immigrant community understand that fact too well, prompting several Spanish-speaking neighbors to approach me at church and in my neighborhood, east of Downtown, to express the view that “I don’t want those violent guys getting dumped here.” Simply, immigrants expect and deserve the same right to live free of violence as every San Jose resident.

Finally, violent episodes like the February homicide crystallize venom of the haters, encouraging them to scapegoat all immigrants. Among the more reasonable non-combatants in the immigration debates, homicides like last February’s engender suspicion of and opposition to sanctuary policies more generally. Indeed, my own outspoken advocacy for immigrants and for SJPD’s non-engagement with ICE elicited a well-publicized banner on Almaden Expressway urging that the murder victim’s “blood” was “on [my] hands.” Though poorly informed, it reflected the views of many others who emailed and called my office, all with the misguided belief that the SJPD’s own pro-immigrant policies had something to do with the victim’s death in February. For sanctuary policies to gain widespread acceptance, they must credibly demonstrate a realistic acknowledgment of the need for public safety.

The Irony of the Extremes: Treating All Undocumented Immigrants the Same

Ironically, the same error infects the logic of those on both extremes of this debate: treating all immigrants the same. Most Americans readily distinguish between the overwhelming majority of hard-working immigrants who live harmoniously in neighborhoods like mine, and the very small number who commit serious crimes. The County estimates that roughly 100 inmates each year would fall within the “serious or violent” offender category as they’ve defined it, out of the perhaps 150,000 undocumented immigrants Countywide — a small fraction of 1% of the total.[10] Simply, we shouldn’t treat different groups of people the same. The criminal justice system treats them differently, as does our common sense — and our political squabbles over local sanctuary policies shouldn’t cloud our common sense.

Nonetheless, less-than-enlightened debate continues over the airwaves and in social media. Those of us urging reform of the County policy have been accused by some on the Left of “anti-immigrant demagoguery” and “racism,” while our opponents on the Right accuse any sanctuary supporters of being “accomplices to murder.” The cacophony of divisiveness drowns out sober discussion of constructive solutions.

The public need not face a false choice between protecting public safety and welcoming our immigrant neighbors. We have better options. If we all take a breath from the yelling, we might have the space to discuss those pragmatic solutions. While Congress may lack the courage to implement what we all urgently need most — comprehensive immigration reform — the rest of us, particularly in local government, still have choices. If we can’t agree to much else, perhaps we can simply allow for an occasional triumph of common sense.

[1] Cal. Govt. Code Section 7282.5 (listing offenses).

[2] June 4, 2019 Report to Santa Clara County Board of Supervisors from County Executive Jeffrey Smith and County Counsel James Williams, p. 305.

[3] April 26, 2019 response of Santa Clara County District Attorney Jeffrey F. Rosen to inquiry of County Executive, p. 356.

[4] Santa Clara County District Attorney Jeffrey Rosen, “A Balanced Approach for Community Safety,” submitted within the June 4, 2019 Santa Clara County Board of Supervisors’agenda packet, p. 413

[5] Ibid.

[6] April 26, 2019 Letter from ICE Acting Field Office Director Erik Bonnar to County Executive Jeff Smith and County Counsel James R. Williams (pp. 396 in the agenda materials for Santa Clara County Board of Supervisors June 4, 2019 meeting)

[7] April 26, 2019 response of Santa Clara County District Attorney Jeffrey F. Rosen to inquiry of County Executive, p. 361.

[8] April 26, 2019 response of Santa Clara County District Attorney Jeffrey F. Rosen to inquiry of County Executive, p. 361.

[9] April 26, 2019 response of Mountain View Police Chief Max Bosel, representing the Santa Clara County Police Chiefs’ Association, to County Executive’s inquiry, in agenda packet for June 4, 2019 Santa Clara County Board of Supervisors’ meeting, p. 374

[10] June 4, 2019 Report to Santa Clara County Board of Supervisors from County Executive Jeffrey Smith and County Counsel James Williams, , in agenda packet for June 4, 2019 Santa Clara County Board of Supervisors’ meeting, p. 303.