Sheriff Oversight Commission, Bonner Report: Rejects Sheriff Commission Recommendations, Maintain ICE

This is an excellent report. Thank you, Commissioner Bonner.

Robert C. Bonner, Commissioner

Los Angeles County Sheriff Civilian Oversight Commission

333 South Grand Avenue

Los Angeles, CA 90071

 February 13, 2019

Patti Giggans, Chair

Los Angeles County Sheriff Civilian Oversight Commission

350 South Figueroa Street, Suite 288

Los Angeles, CA 90071

Re: Objections to Recommendations 1, 9 and 10 of the Immigration Ad Hoc Committee

Dear Chair Giggans,

As you know, the Immigration Ad Hoc Committee has presented a report dated November 15,

2018 containing 12 proposed recommendations,1

 which I am understand will be on the agenda

for our February 26 meeting. For reasons stated below, I oppose Recommendations 1, 9, and 10

and hope these will be deleted from the recommendations adopted by the full Commission.

While I address my concerns about each of the three recommendations below, the effect of these

recommendations, individually and in combination, is to preclude transfer of custody from the

Los Angeles County Sheriff’s Department to federal immigration authorities of persons

convicted of serious and violent crimes who are not lawfully in the United States. The job of the

Sheriff, first and foremost, is public safety, and preventing such transfers will negatively impact

public safety in Los Angeles County.

Recommendations 1, 9 and 10 are unwise, adversely affect public safety, and go well beyond

what is required by state law. These recommendations have the effect of protecting convicted

aliens not legally in the U.S. Indeed, the effect of the recommendations is to shield aliens who

have been convicted of serious criminal activity from being deported. Adopting these

recommendations will make our community less safe.

I. Background

Some have argued that SB 54 (also known as the “Values Act”) has made California a

“sanctuary” state. This overstates the case. To be sure, SB 54 significantly limits the ability of

local law enforcement to cooperate with federal immigration authorities. But the three

recommendations of the Ad Hoc committee go much further. They go well beyond the carefully

crafted compromise of SB 54.

SB 54, as enacted, made a policy judgment that certain enumerated crimes were sufficiently

serious that California’s sheriffs are permitted to transfer persons, who are in the U.S. illegally

and convicted of these crimes, to federal immigration authorities. These enumerated crimes

include: 2

(1) Sexual abuse and exploitation of children,

(2) Crimes resulting in death or involving infliction of great bodily injury,

(3) Crimes requiring a sex offender to register under the California Penal Code,

(4) Torture and mayhem,

(5) Hate crimes,

(6) Rape,

(7) Kidnapping,

(8) Burglary and Robbery, and

(9) Felony Drug Offenses involving the selling, distribution and trafficking in hard drugs,

such as heroin, fentanyl and meth.

In other words, these crimes involve serious and/or violent criminal acts by persons who are not

lawfully in our country. Moreover, these are all crimes punishable under state law as felonies.

II. Ad Hoc Committee’s Report does not analyze the public safety impact of

the Recommendations.

The effect of Recommendations 1, 9 and 10 is to prohibit the LASD from transferring an alien

not legally in the U.S., but convicted of one of these enumerated crimes, to federal immigration

authorities. As a result, aliens unlawfully in the U.S. who have committed serious crimes will be

allowed to walk right out of the jail and back into our community.

Although there are clear public safety implications in adopting these recommendations, the Ad

Hoc Committee’s report contains no analysis of the public safety impact of its proposed

recommendations.

 For this reason alone, the three recommendations should be rejected by the

full Commission. Absent an evaluation of impact on public safety, we are not in a position to

weigh the merits of the recommendations.

 To move forward without such an analysis would be irresponsible.

III. There will likely be a significant adverse impact on public safety if the

Recommendations are adopted.

                                                     

According to a 2016 Office of Justice Programs study of recidivism:

“Research has demonstrated that repeat offenders [person convicted who repeat crime

after release] account for a disproportionate amount of crime and that convicted offenders

are re-arrested at a rate 30 to 45 times higher than the general population. As a result,

there is a widespread recognition that recidivism has a direct impact on public safety.”7

(Emphasis added.)

In addition to being serious and heinous crimes, many of the enumerated crimes in SB 54 are

well known to be “recidivistic.” In other words, a significant percentage of people convicted of

these crimes, e.g., rape, robbery, and burglary, repeat these offenses, most often in the

communities from which they came. According to the 2014 Bureau of Justice Statistics study,

82% of property offenders (e.g., burglary) recidivate within five years. For violent offenders, the

recidivism rate is 71%. It is recidivism, for example, that has led California and other states to

require registration of sex offenders, acknowledging that these criminals may pose an ongoing

threat to the public.

The Sheriff’s job, first and foremost, is public safety. He is charged with taking steps to increase

public safety, not steps that leave our community more vulnerable to crimes, especially those as

serious as the enumerated crimes. It is highly likely that adopting Recommendations 1, 9 and 10

will negatively impact public safety in Los Angeles County. For this reason alone, we should

vote against these recommendations.8

IV. There are adverse, unintended consequences if the Recommendations are

implemented.

Besides additional crimes committed by convicted aliens who should not be in our country in the

first place, there is another public safety risk if Recommendations 1, 9 and 10 are adopted. If

persons have been convicted, for example, of robbery, rape or an assault involving “great bodily

                                                      

5

 U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of State Prisoners (Apr. 2014),

https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.

6 The limited information available regarding the recidivism rate for aliens residing unlawfully in the U.S. who have

been convicted of crimes tends to indicate that it is not significantly different from the rest of the population

convicted criminals. See, e.g., Sacchetti, Maria. “Criminal Aliens Reoffend at Higher Rates than ICE has

Suggested,” The Boston Globe (June 4, 2016).

7 Office of Justice Programs, Chapter 5: Adult Sex Offender Recidivism (2016),

https://www.smart.gov/SOMAPI/sec1/ch5_recidivism.html.

8 Even if they did not engage in further crime, the fact remains that these individuals have been convicted of violent

or otherwise serious crimes and, as they are here illegally, they have no right to remain in the U.S.

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injury,” and are not transferred to federal immigration authorities at or near the IRC (the intake

and release area of the L.A. County Jail), we should ask ourselves:

Do we really want armed ICE Agents going out into the community and arresting them?

This is what we will be forcing ICE to do if these recommendations are adopted, and there is

every reason to believe that ICE will do so. When armed law enforcement officers go out to the

field to make arrests--as all law enforcement officers know well--it potentially endangers other

persons at the residence and in the nearby community as well as law enforcement officers.

Is this what our Commission wants to happen?

In addition to the danger this creates, other persons in the vicinity who are unlawfully in the U.S.

will also be arrested by ICE for deportation. These “collateral” arrests can be avoided by

transferring custody of convicted aliens, who are a primary focus of ICE, in the secure

environment of the Los Angeles County jail.

In addition to the potential for recidivism, greater ICE presence in Los Angeles County

communities and more arrests of noncriminal aliens are among the likely unintended

consequences of the unwise policy that underlies Recommendations 1, 9, and 10. The only

population that stands to benefit are convicted criminals unlawfully in the U.S.

V. Comments on the Recommendations

A. Recommendation No. 1

The adoption of this recommendation precludes the LASD from giving information to ICE

regarding the release date of a person: (1) convicted of one of the crimes enumerated in SB 54,

(2) who is illegally in the U.S. and subject to deportation, (3) “unless required by federal or state

law.”9

 There is no federal or state law requiring release dates be made available to ICE, even

when ICE has provided the LASD with a detainer. Suffice it to say, if ICE is not given notice of

the release date of persons convicted of a SB 54 crime in advance, the effect is likely to prevent

transfer of custody by the LASD to ICE, and these convicted aliens will return to the community.

B. Recommendation No. 9

By denying ICE access to Inmate Reception Center (IRC) of the LA County Jail, the effect of

this recommendation is to prohibit the Sheriff from transferring custody within the IRC of a

person convicted of a SB 54 crime who is illegally in the U.S. According to Recommendation 9,

such access must be denied to ICE “unless required by federal or state law.” What the Ad Hoc

committee’s report fails to mention is that there is no law, state or federal, that requires ICE be

given access to the IRC. If the Sheriff does not give ICE access to the jail, as it does every other

federal and out of state law enforcement agency, a safe transfer of custody cannot take place.

                                                     

9 Over the history of our country, this information has been provided routinely as a matter of comity, that is, as part

of the cooperation needed between federal and local law enforcement in order for our federal system to function. See Section VI, below.

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Even assuming ICE has notice of the release date in advance (see Recommendation 1, however),

this recommendation will have the effect of requiring a transfer of custody outside of the IRC,

potentially endangering others, including the convicted individual, family members, bystanders,

local law enforcement as well as the ICE officers effecting the arrest.

C. Recommendation No. 10

This recommendation will prohibit the LASD from honoring ICE detainers “unless required by

federal or state law.” A “detainer” is well understood by law enforcement and prison officials.

An immigration detainer is based on an administrative warrant issued by federal immigration

authorities. Indeed, administrative warrants and detainers are the only process available for

giving notice of a deportation hold on an illegal alien in state custody. They have been used and

honored for decades to ensure that convicted aliens not legally present in the U.S. are removed

from the country instead of being released back into the community where they were previously

arrested.

The Ad Hoc committee, however, wants to forbid the Sheriff from honoring administrative

warrants and detainers and only transfer custody to ICE if ICE presents a criminal, sometimes

called a “judicial,” warrant. However, a federal “judicial” warrant can be issued only when there

is to be a federal criminal prosecution. Most of ICE’s detainers are for administrative deportation

proceedings, which are not criminal cases.

On its face, this recommendation has a patina of reasonableness, but, in context, it requires ICE

to secure criminal charges, e.g., for illegally entering the U.S.,10 filed by the U.S. Department of

Justice. As the only action contemplated by ICE is administrative deportation proceedings, we

should not require the federal government to institute federal criminal charges in order to satisfy

the Ad Hoc Committee’s insistence on a federal criminal warrant. Moreover, as a former United

States Attorney, I can state categorically that it is not appropriate to criminally charge an alien in

federal court merely to secure his custody for administrative deportation. Indeed, most aliens

who are unlawfully present would probably prefer not to be prosecuted and convicted in federal

court after serving time on a state charge.

The bottom line is that there is no federal or state law requiring the Sheriff to honor an

administrative warrant and detainer. Thus, the effect of this recommendation is that a person

convicted of a SB 54 crime, not legally in the U.S., will be released back into our community.

VI. The Recommendations undermine our federal system.

Under the United States Constitution, the Congress and the federal government are charged with

creating and enforcing the laws relating to illegal immigration. And under the U.S. Constitution,

the federal law is supreme, overriding state laws that are in conflict with it.11 While a local or

state agency is not required to affirmatively assist federal authorities in enforcing federal law,

they are also not free to thwart such efforts. Indeed, basic principles of comity, essential to the

                                                     

10 See, e.g., 18 U.S.C. §§ 1325 and 1326.

11 See U.S. Const., Art. VI, Cl. 2.

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smooth functioning of our federal system, suggest that no local agency should be required to take

measures that obstruct or defeat federal law enforcement. The adoption of the three

recommendations tend to negate even that minimal level of comity and cooperation essential to

our federal union. As a Commission, we should not direct the Sheriff to take steps that

fundamentally undermine our federal system.12

VII. The adoption of the Recommendations will likely invite increased illegal

migration of criminals into the U.S. and Los Angeles County.

The number of aliens illegally residing in the U.S. is unknown, but it is estimated to be between

11 and 20 million people. Under our immigration laws, we currently welcome nearly one million

people annually as legal immigrants, including refugees, a number that far exceeds any other

country in the world. As a nation that values and has benefitted from immigration, we can and

should continue to admit a large numbers of legal immigrants. Because we are also a nation of

laws, with a belief in the rule of law, it is appropriate to take reasonable steps to discourage

further illegal migration--the most obvious and reasonable of which is allowing federal

immigration authorities to remove criminals, here illegally, who have committed serious crimes

in Los Angeles County.

The effect of adopting these recommendations would be to establish Los Angeles County as a

sanctuary for criminal aliens. Such a policy invites criminals who illegally enter the U.S. - - a

small percentage of illegal migrants - - to come to places where they will not be turned over to

ICE, no matter what crimes they commit. Because these recommendations go beyond California

state law by seeking to shield even serious criminals from immigration enforcement, we can

reasonably anticipate that adopting them will incentivize criminal aliens to seek shelter in Los

Angeles County.

VIII. The Ad Hoc Committee’s Recommendations are beyond the scope of its

mandate.

The Commission established the Ad Hoc committee for the limited purpose of evaluating the

LASD’s compliance with the Sheriff’s policies described in his letter dated January 10, 2017. Its

charter was and is coterminous with a request from the Board of Supervisors, as follows:

“Request the Civilian Oversight Commission, in collaboration with the Inspector General

and the Auditor-Controller, review, analyze and make recommendations to the Sheriff’s

department’s adherence to the policies described in his January 10, 2017 letter and any

other relevant policies as needed to carry out the intention of this policy and report back

in writing to the Board quarterly . . . .”

Despite this limited mandate, the Ad Hoc committee’s three recommendations go far beyond

whether the LASD is adhering to of the policies set forth in the Sheriff’s January 10, 2017 letter

or the intent of those policies. Indeed, the Ad Hoc committee appears to concede, and the

                                                     

12 Indeed, such a direction from us would potentially put the Sheriff in the untenable position of violating that part

of his oath of office requiring him to support and defend the U.S. Constitution.

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Inspector General has found, that the LASD has substantially complied with the policy set forth

in the January 10, 2017 letter.13 Thus, the three recommendations have virtually nothing to do

with what this Commission requested the Ad Hoc committee to do.

This is, of course, a procedural point, but it is an important one for the governance of our

Commission. The sound functioning of our Commission is aided by ad hoc committees, but these

committees should stay within their mandate, unless they request expansion of the scope of their

mandate and such expansion is approved by the full Commission. This did not occur in this

instance. If we failed to adhere to such a procedural rule, any ad hoc committee could on its own

expand the scope of its mandate and speak for the Commission as a whole on any subject on

which it deems fit.

Conclusion

In the final analysis, Recommendations 1, 9 and 10 protect criminals, are antithetical to public

safety, at odds with the public interest, and contrary to the Sheriff’s obligation to promote public

safety. Accordingly, I would urge my fellow Commissioners to reject them.

Sincerely,

Robert C. Bonner

Commissioner

Cc: Brian Williams, Executive Director