Gov. Martin O'Malley has imposed strict new rules to limit when the state may hold immigrants in Baltimore's jail at the request of federal authorities, dealing a new blow to a national program intended to catch people who are in the country illegally.
The governor's policy, which was made public Friday by immigration advocates, comes in response to a recent opinion from the Maryland attorney general's office, which found that detaining immigrants in local jails beyond their scheduled release without probable cause is likely a violation of the Fourth Amendment.
Probable cause — the legal standard police use to obtain a warrant — is far more stringent than the standard that federal officials have used to request the state to hold immigrants.
The attorney general's opinion, along with the precedent set by O'Malley, significantly undercuts a federal program known as Secure Communities that was intended to focus deportation efforts on immigrants who broke laws after they entered the country. A Baltimore Sun analysis this year found that more than 40 percent of the immigrants deported in the state under the program had no prior criminal record — far higher than the national average.
The American Civil Liberties Union of Maryland, which has been advocating on the issue for years, praised O'Malley's decision to limit when the state would honor the federal requests known as detainers.
The governor's decision applies only to the state-run jail in Baltimore, but immigration groups said the attorney general's opinion should prompt local jurisdictions to adopt similar policies.
"We applaud this news from the governor recognizing the fundamental constitutional rights of all Marylanders," said Gustavo Torres, executive director of CASA de Maryland, the state's most prominent advocacy group for immigrants. "Under Governor O'Malley's leadership, Maryland has knit together a community and we look forward to counties across the state following suit."
O'Malley's latest policy is considerably more comprehensive than one he implemented four months ago. Under the earlier guidelines, the state allowed U.S. Immigration and Customs Enforcement to request a "hold" on immigrants in Baltimore if they had prior felony convictions or if they satisfied less-well-defined requirements, such as being "a significant risk to … border security."
Now, federal agents will have to show probable cause to get the state to hold an immigrant beyond his or her scheduled release in Baltimore's Central Booking facility.
Immigration violations, in many cases, are civil rather than criminal in nature.
"As a state, we stand ready and willing to cooperate with ICE detainers … when ICE provides sufficient information to ensure that Fourth Amendment requirements are satisfied," O'Malley wrote to the state Department of Public Safety and Correctional Services on Thursday.
A growing number of states and counties — 112 in all, according to the ACLU — limit the circumstances under which they will honor detainers.
It's not yet clear how the ICE will demonstrate probable cause. Currently, immigration agents check boxes on a one-page form to justify the request for a detainer. It's also not clear if Maryland will require judicial review of detainer requests.
Unlike warrants, immigration detainers are not signed by judges.
Michael Sanderson, executive director of the Maryland Association of Counties, said corrections officials and county attorneys throughout the state are reviewing the attorney general's opinion. The group has not taken a formal position on the issue.
Under Secure Communities, immigration officials access the fingerprints of everyone who is arrested, anywhere in the country, for murder or for driving without a license. The Department of Homeland Security checks those prints against a database of people known to be in the country illegally.
When the computers turn up a match, federal agents ask the local jail to hold the immigrant for up to 48 hours beyond the time he or she would otherwise be released so a pickup can be arranged.
Advocates say the system ensnares immigrants who have committed no crime other than traffic violations. Opponents say limiting the detainers could allow immigrants who have criminal backgrounds to be set free rather than being turned over to the ICE for further investigation. They note that the immigrants at issue entered the United States illegally in the first place.
The policy O'Malley announced in April allowed the ICE to secure a detainer if an immigrant had a prior felony conviction or charge.
The attorney general's opinion specifically states that a prior conviction "does not provide sufficient information to conclude that the subject has committed a new crime."
"If a local law enforcement officer does not have probable cause to extend custody over the subject of an ICE detainer, the continued detention likely constitutes a violation of the Fourth Amendment," wrote Adam D. Snyder, chief counsel of the division of opinions, advice and legislation.
O'Malley, a Democrat who is considering a run for president in 2016, has been applauded by immigration advocates for signing a law in 2011 to allow immigrants in this country without legal documents to attend state colleges and universities at in-state tuition rates, and for backing a measure last year to let them apply for driver's licenses.
The governor made national news in July when he questioned efforts by the Obama administration to speed up the deportation of the unaccompanied children who have been crossing the border in large numbers earlier this year.
"We are not a country that should turn children away and send them back to certain death," he said.
Washington County Sheriff Douglas W. Mullendore requested the legal opinion. Neither he nor officials in Baltimore could be reached for comment late Friday.
"We are delighted that the Baltimore jail will stop detaining most people for ICE and hope that all Maryland counties follow the governor's lead," Sirine Shebaya, an ACLU attorney who has studied the issue closely, said in a statement. "We will continue to work with the governor's office to ensure that the policy is implemented in a way that truly respects the constitutional rights of all of Maryland's residents."