Maryland's largest jails are wrestling with a new Obama administration program to deport undocumented immigrants with criminal records, embracing some provisions but rejecting a central component that has drawn ire from immigration advocates.
Corrections officials in Baltimore, Anne Arundel County and elsewhere have agreed to notify federal agents before releasing certain immigrants, but have opposed requests to hold them in jail beyond their scheduled release so Immigration and Customs Enforcement can pick them up.
Local officials are hoping to strike a balance over what to do when undocumented immigrants wind up in jail, particularly in cases involving minor infractions. The July 1 killing of Kathryn Steinle in San Francisco — allegedly by an immigrant who was in the U.S. illegally and was released from jail — has brought new scrutiny to the effort.
The Obama administration rolled out an initiative last month to address concerns raised about a 7-year-old program called Secure Communities. That program was the focus of renewed attention in Maryland after a Baltimore Sun analysis last year found that more than 40 percent of the immigrants deported from the state under the system had no prior criminal record—a result that appeared to conflict with the Obama administration's focus on repeat or violent offenders.
Under the recent initiative, Priority Enforcement Program, federal agents rely less frequently on requests to hold immigrants — known as detainers — and more on information sharing, including notification before immigrants with criminal backgrounds are set free. Detainers are now targeted at immigrants who have a more serious criminal background, the administration says.
Anne Arundel and Montgomery counties and the state-run jail in Baltimore have agreed to provide notification to the federal agency. Prince George's County is not currently honoring those requests, a spokeswoman said. Baltimore County is still deciding whether to implement the program.
But several of the state's largest counties and the Baltimore jail are declining to hold immigrants beyond their scheduled release.
"Letting them know is the responsible thing," Terry Kokolis, superintendent of the Anne Arundel County Department of Detention Facilities, said of the notification provisions of the new federal program. "But we will not detain them on the basis of just having a detainer. I'm not going to put Anne Arundel in the bull's eye" for potential litigation.
The Maryland attorney general's office wrote last year that holding immigrants beyond the date when they would normally be released is akin to a new arrest, and requires probable cause of a crime. Because many immigration violations are civil and not criminal matters, jails should not hold immigrants because they are in the country illegally, the office wrote.
Following the attorney general's letter — which was based on an increasing body of federal court precedent raising constitutional concerns with the practice — Gov. Martin O'Malley and several county executives developed new policies. Local leaders agreed to hold immigrants only if federal agents presented a warrant signed by a judge.
Officials with the Maryland Department Public Safety and Correctional Services, which runs the Baltimore jail, told The Baltimore Sun that they will continue to require a warrant under the Priority Enforcement Program. It is not clear how that policy will be implemented alongside Gov. Larry Hogan's separate plan to close the male detention center.
The department "will only maintain custody of a suspected violent offender if [federal] officials have provided to the department a detainer supported by a judicial warrant establishing probable cause that the individual has committed a serious crime," spokesman Gerard Shields said in a statement.
"At no time will DPSCS hold an individual without probable cause."
Montgomery County Police Chief J. Thomas Manger praised federal officials for listening to local police on the issue and said the new program is a significant improvement over Secure Communities. Manger said the county will notify federal agents when asked about the status of immigrants — a policy in place before the new program — but that it will still require a warrant to hold them.
"Secure Communities, when it was first rolled out, sounded good in a lot of ways, but then in practice wasn't very consistent," said Manger, who is also the president of the Major Cities Chiefs Association. "We want safe neighborhoods. If we have an individual who is a bad actor … nobody wants that person in their neighborhood."
CASA, the region's largest advocate for immigrant rights, and the Maryland ACLU have pressed local governments and the Obama administration on the issue for years. Though CASA has applauded the higher standards set by many local governments for holding immigrants, the group opposes the new notification provisions.
"Physically holding someone for ICE pickup versus notifying ICE of the exact moment you will release them results in the same deportation," said Gustavo Torres, CASA's executive director. "Dedicating precious staff time to making calls to ICE will separate Baltimore's immigrant families and undermine community policing."
A spokeswoman said Prince George's County is not currently honoring the notification requests but did not offer additional details about its reasoning.
So-called sanctuary cities, or jurisdictions that do not honor the federal requests, have come under intense pressure since Steinle's death. The GOP-led House approved legislation last month to strip funding from local governments that decline to honor the notification requests.
"Politely asking for cooperation from sanctuary cities is a fool's errand," Republican Rep. Bob Goodlatte of Virginia, the chairman of the House Judiciary Committee, said in a hearing last month. "The clear answer to this problem is for [the Department of Homeland Security] to mandate compliance with detainers and for this administration to defend the mandatory nature of detainers in federal court."
Homeland Security Secretary Jeh Johnson told the committee that 33 of the 49 largest jurisdictions the department has reached out to indicated a "willingness to work" with the federal government.
He rejected calls to make the detainers mandatory.
"The Secure Communities program was hugely problematic in the courts," Johnson said. "I want to see us work cooperatively with state and local law enforcement, and I believe they are poised to do that."