Gov. Jerry Brown’s veto of the Trust Act late Sunday raised some interesting questions. Brown said he supported the goal of the bill, which would have set some limits on a controversial federal immigration enforcement program. But the governor said he could not support the Trust Act because of a fatal flaw that would have required police to release some immigrants who may be involved in serious crimes, such as child abuse or drug sales, before they were taken into custody by the Department of Homeland Security.
Whether Brown’s concern is valid is up for debate. Some advocates say those immigrants with serious criminal histories or facing serious charges would not be protected by the Trust Act and would remain in custody. Under the now-vetoed bill, police would have detained only those immigrants for federal officials who were convicted or accused of serious offenses; it required that all others be released.
But Brown’s veto message actually highlights everything that is wrong with the controversial federal enforcement initiative. Known as Secure Communities, the program fails to distinguish between those immigrants who pose a threat to public safety and those who are arrested for minor infractions such as street vending.
In theory, Secure Communities should weed out serious and violent criminals from low-level offenders. But it doesn’t. Instead, local law enforcement agencies share the fingerprints of anyone booked into local jails with federal immigration authorities. Federal authorities then ask local law enforcement to hold anyone it believes to be deportable, not just those with prior convictions. As a result, street vendors who have no prior criminal history are often held along with drug dealers and violent gang members.
That’s not exactly a targeted approach, nor is it the program that the Obama administration advertised when it invited local and state officials to sign up for Secure Communities in 2009.
So I’ve often thought that the real trouble with Secure Communities is that it casts law enforcement in the role of immigration agent. Brown’s decision to veto the Trust Act reflected his concern that police would be required to weigh in on an immigration matter: to determine who might be charged with a serious crime. Police shouldn’t be forced to play the role of immigration jailer or to decide whether a past conviction or future charge might result in deportation. That's not their job. Judges and courts should make that call.
That’s why it seems to make better sense for federal officials to wait until after an immigrant has appeared before a judge and is formally charged to make a request to detain a person. Judges could deny bail to those who are accused of serious offenses, or opt to require immigrants to wear electronic ankle monitors in those cases in which individuals are considered a flight risk. Moreover, it would satisfy the Obama administration’s stated goal of focusing enforcement resources on the worst of the worst, without causing damage to families or undercutting law enforcement’s ability to secure the cooperation of those in immigrant communities who fear that any contact with police could land them or a loved one in deportation proceedings.