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January 24, 2017

The High Local Cost of Forced Immigrant Detention

If some lawmakers have their way, sheriffs and regional jail officials could be forced to choose between violating a confusingly written state law and spending scarce taxpayer dollars to hold people past the day they would otherwise be released without a court order signed by a judge. That’s the tough choice that could be presented if  HB1468 or a similar “detainer” bill ever became state law.

This bill is designed to require additional compliance by Virginia’s sheriffs and regional jail officials with federal immigration authorities–Immigration and Customs Enforcement (ICE)–who wish to detain someone, above and beyond what is already happening. Virginia’s sheriffs and jail officials turn individuals over to federal immigration authorities if those officials show up on the individual’s release date from jail. In fact, they can transfer people into federal custody up to five days before their regular release date, making it easier for federal officials to schedule pickups.

The language of HB1468 is somewhat circular and confusing. If it is interpreted by sheriffs and regional jail officials as preventing pretrial release of certain individuals, disallowing post-trial release to alternatives such as drug treatment, and/or requiring individuals to be held after their normal release date, it could impose significant new costs on Virginia’s localities by increasing the number of people being held in local and regional jails. It could also expose Virginia and its localities to the risk of additional costs related to lawsuits for violating constitutional rights.

This bill appears likely to prevent pretrial release of individuals against whom federal immigration authorities have placed detainer requests. There is already a presumption against bail for defendants who ICE has determined to be illegally present, but this would remove all discretion from judges even when a person poses no flight risk. That means local facilities would be forced to hold the individuals in jail until their trial date. This is a cost that the federal government will not reimburse and of which the state only pays a small fraction. That means localities pick up the rest. In addition, HB1468 appears likely to prevent the use of post-trial programs such as home incarceration/electronic monitoring, work release, and substance abuse treatment placements, further increasing jail crowding and operating costs.

Federal immigration authorities issued about 1,512 detainer requests to local facilities in Virginia between November 2014 and October 2015. Using facility-specific operating costs of Virginia’s local and regional jails, if an estimated 1,500 detainer requests were sent to local and regional jails per year, and assuming that these individuals would be held on average an additional two days, then detention costs for Virginia’s jails would increase by about $350,000 per year, most of which would fall on the localities.

A broad interpretation of HB1468 could require sheriffs, regional jail superintendents, and other facility heads to hold individuals against whom federal immigration authorities have placed detainer hold requests for up to 48 hours after the individual would have otherwise been released. This could be at odds with a 2015 Attorney’s General opinion that “A person has a constitutional liberty interest in not being imprisoned longer than he was sentenced by the sentencing court,” and would place yet more costs on localities. Due to the Attorney’s General opinion and statements by several Virginia sheriffs that they will not hold individuals on an ICE detainer unless accompanied by a court order, it appears that many or most Virginia localities are not currently holding individuals past their normal release date. Using the same assumptions, the increase in operating costs from holding about 1,500 individuals in local or regional jails for an additional 48 hours would be about $350,000 as well.

In addition, by possibly forcing sheriffs and regional jail superintendents to choose between obeying a judge’s order and following Virginia law, HB1468 could put sheriffs and regional jail superintendents at risk of lawsuits. This could cost Virginia in the form of increased insurance rates and/or direct liability costs.

The immigration system in the United States is broken, and too many Virginians are caught up in it because of minor problems with their immigration status and minor criminal charges. Virginia should not add to this by requiring local and regional jails to treat detainer requests as mandatory without a court order. And the state should not force sheriffs and regional jail officials to choose between a confusing state law and the constitutional rights of individuals, not to mention the possible costs to their local taxpayers.


Laura Goren

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