Some members of Congress and Republican presidential candidates want to cut off Justice Department grants to so-called sanctuary cities — places like Los Angeles and San Francisco, where, as a moral or practical matter, local law enforcement generally doesn't turn over undocumented immigrants to federal authorities.
"Enforcing the immigration laws of the United States is not a voluntary or trivial matter," said Sen. Charles E. Grassley as he opened a hearing on the topic this summer, after Katherine Steinle was killed in San Francisco, allegedly by Juan Francisco Lopez Sanchez, an undocumented immigrant.
Lopez Sanchez, a multiple deportee and convicted felon, was released by San Francisco sheriffs after a drug charge against him was dropped. Immigration and Customs Enforcement wanted Lopez Sanchez detained for deportation. The sheriffs say ICE should have gotten a warrant; Grassley and others outraged by the killing blame the city's sanctuary stance for Steinle's death.
That tragedy makes it easy to attack the sanctuary movement. But sanctuary's enemies seem unaware of its venerable role in human history. It has long been an escape valve for society when the law can't meet the deeper demands of justice.
The concept of sanctuary derives from the ancient imperative to provide hospitality to the stranger. In Greek cities, slaves and thieves took sanctuary at the shrines of the gods, which were asylos, inviolable. In biblical times, those found to have committed accidental murder could flee to sanctuary cities, where they were to remain, in safety, and then emerge upon the death of the high priest (Numbers 35:28). Biblical cities of refuge were places for wrongdoers who did not warrant the fullest sanction of the law but were assigned a period of separation from the community instead.
In the Middle Ages, seeking sanctuary in any church was a legal option for accused felons. They could stay in the church, fed by neighbors for up to 40 days. When they emerged, they could confess, give up all their belongings and go into exile. Sanctuary in any case delayed prosecution. In one case, it protected a man in flight from mistaken vengeance by giving him the chance to explain he had not been present at the scene of the original crime. In another, sanctuary protected a boy who accidentally killed his brother with a rock. When the boy was finally prosecuted, the jury concluded that the brother died of a seizure before the rock struck him. Sanctuary had provided time for the community to decide that, whatever the facts of the case, the boy did not deserve hanging or exile.
In biblical history and in the Middle Ages, sanctuary enabled communities to adjust the law to exceptional circumstances. In later centuries, the law took such circumstances into account when it established different degrees of murder.
That evolution ended the legal option of sanctuary in England in 1723; it never was on the books in America. Since Colonial times, however, U.S. law has taken the accused's circumstances into account in many other ways. For example, it relies on juries to hear and judge evidence, and allows for judicial discretion in imposing stricter or more lenient sentences. Judges and juries regularly respond to people's individual circumstances, within the broader structure of what is lawful and what is not.
Still, our legal system is never perfectly responsive to people's circumstances, and sanctuary, while not included in our statutes, has often been invoked in the United States. In particular, groups who have been the subject of prejudicial laws have sought and used sanctuary, sometimes to evade what they considered to be an unfair law and sometime to issue broad public challenges to injustices within the legal system.
Indeed, President Obama made reference to this tradition in his eulogy for the Rev. Clementa Pinckney, who was gunned down at Mother Emmanuel African Methodist Episcopal church in Charleston, S.C., in June: "Over the course of centuries," the president said, "black churches served as hush harbors … praise houses … rest stops for the weary along the Underground Railroad, bunkers for the foot soldiers of the civil rights movement."
In the 1980s, a new sanctuary movement offered safe harbor to hundreds of people fleeing from Central American violence. La Placita, the Roman Catholic church at Olvera Street in L.A., was a major participant. A lawsuit brought by sanctuary advocates, American Baptist Churches vs. Richard Thornburgh, made it more difficult for the U.S. to base asylum decisions on foreign policy concerns rather than individuals' circumstances.
The sanctuary cities of the 2000s are part of this American tradition. Some municipalities deliberately lay claim to the title explicitly to protect immigrants. Others simply wish to avoid potential legal problems that might stem from detaining people without full authority. Many, including Los Angeles, cite the difficulty of policing the city when the undocumented are afraid any contact with the authorities could end in deportation.
Instead of attacking sanctuary cities, Congress should be listening to their message. Sanctuary cities recognize that that in most cases, deportation is the wrong punishment for illegal immigration, which is a breach of civil, not criminal, law. They understand that our laws do not adequately protect the needs of the strangers who, for the most part, have crossed the border to take work that is eagerly offered them. The sanctuary movement considers a purely bureaucratic enforcement system, which can include long detainment and judgment without jury or even a judge, as an arbitrary arm of prejudicial policy instead of just law.
No legal system can perfectly implement justice in every circumstance. Sanctuary serves now as it has in the past as a corrective and a challenge to such imperfection. We should remember that it was once a part of the law, and it remains an effective way to reform and strengthen it.
Elizabeth Allen is an associate professor of English at UC Irvine. She is at work on a book on the idea of sanctuary in medieval literature.