On the heels of the Supreme Court’s landmark immigration ruling in Arizona v. U.S., the California State Senate has approved the Transparency and Responsibility Using State Tools Act, or TRUST Act—an “anti-Arizona” immigration bill.
Instead of copying Arizona’s misguided attempts to transform its own immigration policy—which the Supreme Court struck down as an unconstitutional intrusion into the federal domain—the TRUST Act focuses on issues uniquely appropriate to state and local regulation: enhancing community safety by devoting state and local police resources to public safety and criminal enforcement functions. Specifically, the TRUST Act establishes a bright line rule for localities not to honor requests by federal immigration authorities to detain an individual beyond the time authorized by the criminal justice system unless the individual has been convicted of a serious felony.
A bit of background: The Department of Homeland Security, or DHS, has aggressively deployed a controversial immigration enforcement program called Secure Communities. The program was designed to identify immigrants who are in police custody for a criminal offense and who may be subject to deportation. Under the program, state and local police send the fingerprints of people booked in their jails to DHS. If the individual is potentially subject to deportation and meets one of DHS’s broad priority categories, DHS will request the local police to detain the individual until they can take custody. That additional detention is limited to a 48-hour period, excluding weekends and holidays, although some jurisdictions that either misunderstand the law or simply disregard it detain the individual even longer.
This prolonged detention, however, places costly burdens on states and community members:
- The state and taxpayers bear the costs of keeping people in jail.
- Detention of workers leads to decreased economic productivity.
- Community safety suffers when local police are viewed as immigration agents.
- Family unity begins to crumble when members are locked up and unable to fulfill their responsibilities.
The Secure Communities program was adopted to identify immigrants who have committed serious crimes, but 7 out of 10 deported immigrants in California had no criminal convictions or committed only minor offenses, such as petty misdemeanors and traffic violations. This non-targeted enforcement strategy has led to the deportations of parents of U.S.-citizen children, has deprived families of their primary breadwinners, and has eroded immigrant communities’ trust in law enforcement. In a state with 2.6 million undocumented immigrants and 10.2 million foreign-born residents, losing the trust and cooperation of immigrant communities in California is a loss for public safety and effective law enforcement.
Here is where the TRUST Act comes in. Under the bill, unless an individual has been convicted of a serious crime, he or she cannot be detained beyond the time authorized by state law—either the conclusion of a sentence served or the period authorized to detain someone during the arrest and booking process. As a legal matter, immigration detainers are requests issued by DHS to local law enforcement to continue to keep someone in custody after the time that they are to be released under state law. California can legitimately condition its participation in the Secure Communities program by rejecting these requests because detainers are not legally binding demands or arrest warrants—they are simply requests for assistance from one governmental entity to another.
The TRUST Act thus does not attempt to modify federal immigration policy in any way. Instead, it focuses on implementing policies within California’s purview as a state, without overstepping its boundaries by meddling in immigration policy. It should not, therefore, be seen as an obstacle to federal immigration enforcement and should not trigger preemption litigation.
Indeed, rather than frustrate the goals of the Secure Communities program, the TRUST Act helps advance the program’s central goal of improving community safety by restoring confidence in immigrant communities to report crimes to police.
The TRUST Act’s authors have recognized that the costs to the state of voluntarily detaining those who have not been convicted of serious crimes outweigh the social and economic benefits of allowing them to return to their communities and families where they can continue to be productive. The TRUST Act will benefit California because individuals will be contributing to the state economy rather than being detained for weeks after being convicted of, for example, a traffic violation. Communities will be more stable because police resources will be focused on protecting the community from serious crimes rather than on immigration enforcement. Further, the act will promote family unity in immigrant communities as mothers and fathers will be able to drive their kids to school and afterschool activities instead of sitting in jail while their communities and other taxpayers foot the bill.
The TRUST Act reflects a practical state-based approach to dealing with the byproduct of our broken immigration system. To be sure, measures like the TRUST Act would not be necessary if we had a fair and functional immigration system because measures like Secure Communities would truly focus on identifying and removing community threats. But Congress’s failure to pass comprehensive immigration reform while continuing to pour more money into the DHS’s massive enforcement apparatus has wreaked havoc on immigrant communities. That, in turn, has made it necessary for California and other states to balance their priorities and consider limiting their voluntary cooperation with federal authorities.
The California Assembly is set to vote on the TRUST Act next month after summer recess. We strongly encourage California lawmakers and Gov. Jerry Brown (D-CA) to enact this measure as a partial step toward restoring trust in the state’s immigrant communities. Further, we renew our call on Congress to come together to provide a realistic, humane, and equitable solution for the millions of hard-working undocumented people in this country.
Andrea Alajbegovic is an intern with the Immigration team at the Center for American Progress. Marshall Fitz is the Director of Immigration Policy at the Center.
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