IES

LOCAL
DEMOCRACY
ON ICE:

Why State and Local
Governments Have No
Business in Federal
Immigration Law Enforcement

A Justice Strategies Report
February 2009
by AARTI SHAHANI and JUDITH GREENE

Justice Strategies, a project of the Tides Center, Inc.,
is a nonpartisan, nonprofit research organization.
Our mission is to provide high quality policy research
to advocates and policymakers pursuing more humane
and cost-effective approaches to criminal justice and
immigration law enforcement.

TABLE OF CONTENTS
EXECUTIVE SUMMARY	

1

INTRODUCTION	

7

CHAPTER i	

9

287(g): A Project in Devolution	

provides an overview of the ICE program nationwide.

CHAPTER II	

23

The Arizona Laboratory	

investigates the impact of ICE’s largest 287(g) program on
taxpayers, the criminal justice system and US citizens.

ChaPTER III	

45

ICE: FORCE WITHOUT MISSION	

examines ICE’s structural failure to supervise devolution
programs from 287(g) to immigration detention.

ChaPTER IV	

55

New Jersey Dollars & Sense	

recounts how a Republican sheriff and a Latino community group
defeated a Democratic mayor’s bid to bring ICE to their backyard.

RECOMMENDATIONS	

63

APPENDICES	
ENDNOTES	
ABOUT AUTHORS	
ACKNOWLEDGEMENTS	

65
69
94
94

Photo on cover by Joel Sartore/National Geographic/Getty Images

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EXECUTIVE SUMMARY
Over five percent of the US population is deport­
able, including twelve million undocumented
residents and legal permanent residents with
past offenses. While programs to permanently or
temporarily legalize status can shrink the numbers
in the shadows, they cannot erase an ever-present
deportable population. Meanwhile, more than
fifteen percent of US families include at least one
parent who is a noncitizen and one child a citizen.
Deportable people—who by law must be expelled
from our borders—are in fact integrated into
American families, businesses, and communities.
This paradox complicates a basic question: Who
should enforce our nation’s immigration laws?
A tiny statute passed under the administration of
Bill Clinton and implemented by George W. Bush
provides one answer to that question. 287(g) refers
to a law, written into the 1996 comprehensive
immigration reforms, which for the first time in
US history created a formal mechanism for federal
executives to extend to local community-based
agencies the extraordinary arrest and incarceration
powers originally carved out for immigration police
stationed at the borders. This devolution—shifting
immigration enforcement from federal to local
hands—brings the border to the interior of our
nation.
Born in 2003, Immigration and Customs
Enforcement (ICE) is one of three immigration
agencies within the Department of Homeland
Security. The Bush administration identified
devolution of immigration law enforcement as a
primary strategy to build capacity and established
the 287(g) program as its premiere project. The
program recruits state and local police, as well as
correctional staff in jails and prisons to perform
civil immigration arrests and detentions on behalf
of the federal government.
The devolution of civil immigration enforcement
to criminal justice agencies adds new questions to
an old debate: Does immigration enforcement serve

a public safety mandate? Who should pay for the
federal deportation mandate? Are civil immigration
and criminal law enforcement compatible enter­
prises? Is ICE competent to oversee the transfer
of extraordinary civil immigration powers to local
authorities?
“Local Democracy on ICE” examines the 287(g)
program specifically, as well as ICE devolution
generally. We conducted an extensive literature
review and interviews with diverse sources
including elected leaders, court officials, security
experts, reform advocates, and activists. The
following findings contribute to a public safety
discussion grounded in facts.

The 287g Program has failed.
The 287(g) program has harmed, not
served, our public safety.
ICE marketed the 287(g) program as a public
safety measure to get “criminal illegal aliens”
off our streets. But civil immigration powers are
extraneous to that mission. Criminal law provides
sufficient authority for state and local police to
arrest anyone, including a noncitizen, suspected
of a crime. The arrest powers delegated under the
287(g) program become useful precisely when
an arrestee is not a “criminal illegal alien.” When
an officer lacks reasonable suspicion of a crime,
civil immigration powers still allow for arrest and
incarceration.
ICE powers take the handcuffs off law enforcement,
at the same time distracting police from their
core public safety mission. Immigrants make a
poor target for anti-crime campaigns. Studies
consistently show that immigrants have a lower rate
of crime than American-born citizens, and commit
fewer violent crimes. Legally, the 287(g) program
is equivalent to requiring police to check the tax
returns of every person stopped for a speeding
ticket.
From the outset, the 287(g) program drew
widespread criticism. The Major Cities Chiefs
Association and other community policing
proponents feared the program would make
immigrant victims of crime afraid to call 911.

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EXECUTIVE SUMMARY

Legal scholars questioned the wisdom of allowing
constitutional questions raised by devolution to be
trampled by executive force. Civil rights were a key
concern. Numerous racial profiling lawsuits against
287(g) deputized agencies are now pending.
Race, not crime, has propelled 287(g) program
growth. In the start-up phase of the program,
ICE did not prioritize regions heavily impacted
by “criminal illegal alien” activity. FBI and census
data indicate that sixty-one percent of ICEdeputized localities had violent and property
crime indices lower than the national average.
Meanwhile eighty-seven percent had a rate of
Latino population growth higher than the national
average. ICE signed nearly eighty percent of its
287(g) agreements with agencies in the US South.
While it is true that crime rates in that region are
higher than in others, ICE’s focus in the South
is disproportionate and confounds a balanced
approach to public safety.
ICE has recruited any and all law enforcement
agencies to do its bidding, hastily devolving
deportation powers into ill-equipped local
hands. Partners include street police and traffic
cops, corrections officers in state prisons and local
jails. By August 2008, more than 840 officers
in twenty states were deputized, and 70,000
immigrants detained. County sheriffs make up
sixty-two percent of ICE partners. In Butler
County, Ohio, ICE extended deportation authority
to the sheriff after he sought re-election on a
nationally publicized anti-immigrant platform.
ICE granted the largest and most powerful 287(g)
contract to Sheriff Joe Arpaio of Maricopa County
in Arizona after mismanaged jails cost his county
over $43 million in death and abuse lawsuits; and
after he trespassed into neighboring jurisdictions
to unlawfully dump immigrants at the border for
deportation.
Traffic violators and day laborers are the program’s
central targets. ICE asserts that the 287(g) program
is not designed to crack down on overcrowded
apartments, day laborer activities, or traffic offenses.
Yet ICE has deputized the Missouri State Highway
Patrol, an agency whose core mandate is to enforce
the traffic laws. Sheriff Arpaio summarizes the



program’s real added value, “When we stop a car
for probable cause, we take the other passengers
too.” His 287(g) “crime suppression sweeps” have
targeted day laborers and drivers of color, including
US citizens. In Gaston, North Carolina, ninety-five
percent of state charges filed against 287(g) arrestees
were for misdemeanors—60 percent were for traffic
violations that were not DWIs. In Berry Hill,
Tennessee, a police officer arrested—rather than
issued a routine ticket to—a driver in her last days
of pregnancy. In jail, an ICE-deputized corrections
officer placed a civil immigration detainer on her,
subject her to indefinite incarceration pending ICE
action. She went into labor while shackled to a jail
hospital bed.

287(g) sets up states and localities to
bail out the federal government.
The 287(g) program is unfunded, by statute.
The 1996 law prohibits the feds from reimbursing
a state or local agency for the cost of civil arrests
and incarceration. ICE may have misrepresented
this fact. A sheriff at the 2007 conference of the
National Association of Sheriffs alleges that ICE
representatives said the feds pay up to $90 per
day for each 287(g) arrestee. In 2006 Congress
gave the 287(g) program its first budget line of
$5 million, and continued that level of funding
through fiscal year 2008. Monies were intended for
ICE personnel and infrastructure expenses only.
Yet through 2008, ICE overspent by at least $50
million in program costs.
ICE fact sheets incorrectly tout the 287(g)
program as a net money saver. The program
purportedly saved Arizona $9 million by
accelerating the removal of immigrants from
the prison system. But this truncated economics
does not count the $30 million in state monies
appropriated from 2007 through 2009 to fund
partnerships with ICE. With a $2 billion budget
deficit, among the largest for any state in the
nation, Arizona has yet to fully itemize the costs of
immigration enforcement. And despite infusions of
state cash, Maricopa County accrued a $1.3 million
budget deficit in the program’s first three months.

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Under 287(g), state and local governments
essentially sign a blank check to bolster ICE’s
failed business of immigration enforcement.
Unrelated Homeland Security grants may be
fanning the rumor that 287(g) is a money
generator. After Alabama signed a 287(g)
agreement, the city of Hoover absorbed more than
$400,000 in homeland security grants to buy a new
fire truck and open a “Department of Homeland
Security and Immigration.” While Hoover found
gold in the Homeland Security hills, Virginia’s
Prince William County lost a small fortune.
When the county board of supervisors approved
287(g) participation, it appropriated an extra $1.4
million of local tax revenue to fund year one. The
actual cost amounted to $6.4 million with a newly
projected five-year cost of $26 million. The board
had to raise property taxes by five percent and slash
parts of the police and fire rescue budgets to further
the mission of 287(g).
Fiscally responsible leaders have rejected
the program. In Morris County, New Jersey, a
Democratic mayor sought a 287(g) contract. But a
technical requirement—provision of local jail beds
to house arrestees—served to disrupt his unilateral
action. The county jail’s Republican sheriff
investigated the ICE partnership. He found that a
neighboring county lost $250,000 in unanticipated
security and litigation costs while participating in
ICE’s devolved detention program. After learning
that ICE does not protect individual deputized
local officers from legal liability, he rejected the
287(g) bid. Law enforcement agencies nationwide
have said no to the 287(g) program because it serves
neither public good nor organizational interest.

The devolution program is destined
to fail.
Civil and criminal law enforcement are
incompatible enterprises.
The 287(g) program rests on a faulty assumption
that the civil immigration mandate can be
seamlessly absorbed into the crime-control
mission shared by criminal justice agencies. Like
the universally feared tax audits of the Internal

Revenue Service, the deportation authority wielded
by ICE falls within civil law. But unlike the IRS,
ICE is the only federal agency with the power
to perform mass “civil” incarceration. Counterintuitively, civil immigration law provides greater
search, arrest, and incarceration powers than
criminal law. The Constitution’s protections against
arrest without probable cause, indefinite detention,
trial without counsel, double jeopardy, and selfincrimination, as well as the statute of limitations,
do not apply equally (or in some cases at all) in the
civil immigration context.
While the line between civil and criminal law is a
moving target, 287(g) is defining the parameters
by executive force. At the 2008 Police Foundation
conference, the executive director of ICE’s Office
of State and Local Coordination stunned the
audience when he explained to them the value of
civil immigration powers, “We can make a person
disappear.” Nationwide, the 287(g) program has
promoted vigilante immigration enforcement
and normalized the widely refuted idea that local
law enforcement has the inherent authority to
enforce immigration laws. In Arizona localities that
have not yet joined the 287(g) program are now
detaining suspected immigrants for ICE, without
criminal charges. In a reversal of longstanding
policy, the Miami Police Department now claims
that it has the inherent authority to arrest anyone
suspected of the federal immigration offense of
crossing the border illegally.
The “Arizona Experiment” illustrates how
incompatible civil immigration and criminal law
enforcement really are. The Wall Street Journal has
called Arizona the nation’s leading laboratory in
locally driven immigration enforcement. Arizona’s
first 287(g) program, brokered by state and federal
executives, accelerated a massive crackdown on
immigration violators. In 2005, one year before
state legislatures around the country began to
replicate federal immigration offenses in their own
penal codes, Arizona blazed the trail becoming
the first state in US history to enact its own
international human trafficking statute. The novel
law’s enforcement resulted in the prosecution of
nearly 500 victims, but not a single trafficking boss.



EXECUTIVE SUMMARY

In Arizona the civil immigration mandate
swiftly corrupted the mission of the criminal
justice system. Another state law overwhelmed
the bail system by amending the Constitution
to strip undocumented immigrants of the right
to bail. Arizona’s criminal process morphed into
a hybrid immigration proceeding. In the face of
two masters, judicial officers who were neutral
arbiters on criminal charges became prosecutors
on immigration charges. They were even required
to accept uncorroborated allegations about
immigration status by police as sole proof of
deportability. Prosecutors no longer have to prove
that an immigrant poses a risk of flight or threat to
society to impose pretrial detention. Allegation of a
civil immigration violation makes proof irrelevant.

ICE is incompetent to manage devolution programs.
ICE suffers from mission conflict. Since its
inception, ICE’s budget has grown more than 200
percent to more than $5.4 billion. While ICE is
responsible for interior immigration enforcement,
it is also the largest investigative arm of the
Department of Homeland Security. But ICE has
forsaken intelligence in favor of brute force. In
the ten-year strategic plan of ICE’s Detention and
Removal Office, entitled Endgame, the agency sets
out its aim to “remove all removable aliens”—a
goal utterly disconnected from economic realities
and measurable public safety impacts. Endgame
also notes that unique differences between civil and
criminal detention rules threaten the integrity of
ICE detention operations.
ICE has failed to supervise its 287(g) contracts,
in violation of federal law. By statute, ICE is
responsible to “supervise and direct” all 287(g)
activity. As one 287(g) contract explains,
“Participating LEA personnel are not authorized to
perform immigration officer functions, except when
working under the supervision of an ICE officer.”
Across the board participating localities report
that the primary direction given by ICE is training
on how to check for immigration status through
electronic media. While federal immigration officers
typically receive five months of initial training,



287(g) deputized officers receive lessons compressed
into a five-week crash course. ICE personnel do
not lead or directly oversee 287(g) arrests. ICE has
accepted vague paperwork from deputized agencies
in lieu of real accounting. Faced with criticism
that he has not followed requirements of his ICE
contract, Sheriff Arpaio responded, “Do you think
I’m going to report to the federal government? I
don’t report to them.”
ICE continues to fail the residents of Maricopa
County. After Phoenix Mayor Phil Gordon asked
ICE to audit Maricopa County for abusing the
287(g) program to target “people with broken tail
lights,” ICE agents reported that their internal
investigation confirmed everything was fine. ICE
did not intervene when Sheriff Arpaio permitted
volunteers untrained in immigration enforcement
to support his 287(g) sweeps. These sweeps have
targeted day laborers and drivers of color. The
conservative Goldwater Institute criticizes Maricopa
County for rampant violation of the 287(g)
contract. Janet Napolitano, former governor of
Arizona and now secretary of Homeland Security,
rescinded $600,000 in state grants to Maricopa
County when she saw the 287(g) sweeps spiral
out of control. Elected leaders have called for a
Department of Justice investigation of Sheriff
Arpaio. But no agency has held ICE accountable
for its repeated failure to terminate the nation’s
largest and most publicly criticized 287(g) contract.
ICE has failed at management of its largest
devolution program: civil immigration
detention. The question of whether immigration
enforcement should be devolved from federal to
local hands cannot be separated from the question
of whether ICE is competent to oversee this legally
and organizationally complex process. In its short
life, ICE has already been the focus of eight internal
Homeland Security audits. Mismanagement of the
civil detention system, ICE’s largest devolution
program, is the most frequent theme. One audit
notes, “ICE is not well positioned to oversee the
growing detention caseload.” Over eighty people
have died in “civil” custody, yet ICE lobbies for
more resources to detain noncitizens who have

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

not been deemed either a risk of flight or threat to
society.

intentionally based on race, have a disproportionate
impact on people of color, including US citizens.

Our Recommendations

Congress should create mandatory, meaningful
reporting requirements for monitoring all ICE
operations. Facing a global fiscal crisis, the United
States cannot afford wasteful spending. The ICE
budget, which has grown more than 200 percent
since the agency’s inception in 2003, is not above
public scrutiny. Congress should require ICE to
systematically document and disclose detailed data
related to the implementation and impact of all its
programs.

Our broken immigration system must be fixed, not
burdened with avoidable dead weight. To redress
the harms that the 287(g) program has already
inflicted on public safety and local democracy, we
recommend:
The Obama Administration should terminate the
287(g) program. Day laborers and drivers of color
make poor law enforcement targets. The 287(g)
program fails to strike the correct balance between
safety and rights. The program also amounts
to a local and state bailout of the failed federal
immigration enforcement business.
The U.S. Government Accountability Office
should investigate the 287(g) program. ICE
asserts that it has already conducted an internal
investigation of all 287(g) contracts and has found
no errors. Documented abuses from Maricopa
County, Arizona to Prince William County,
Virginia, tell another story. The GAO, as a
neutral party, must determine how the program
has impacted public safety; and how much local,
state, and federal tax monies have been used for its
implementation.
The Justice Department should investigate the
287(g) program for violation of the executive
order banning racial profiling. Widespread “crime
suppression sweeps” in Maricopa County and
documented cases of racial profiling throughout the
country warrant an investigation of the program’s
compliance with the US Constitution, particularly
the equal protection clause of the Fourteenth
Amendment and the Fourth Amendment ban on
arrest without probable cause. The Department of
Homeland Security should adopt the ban on racial
profiling set by the Department of Justice.
Congress should require a racial impact analysis
before authorizing new immigration law
enforcement programs. In the 21st century, noncitizens in the U.S. are increasingly people of color.
Immigration law enforcement efforts, while not



introduction
Over five percent of the US population
is deportable, including twelve million
undocumented residents and legal permanent
residents with past offenses. While programs to
permanently or temporarily legalize status can
shrink the numbers in the shadows, they cannot
erase an ever-present deportable population.
Meanwhile, more than fifteen percent of US
families include at least one parent who is a
noncitizen and one child a citizen. Deportable
people—who by law must be expelled from our
borders—are in fact integrated into American
families, businesses, and communities. This paradox
complicates a basic question: Who should enforce
our nation’s immigration laws?
A tiny statute passed under the administration of
Bill Clinton and implemented by George W. Bush
provides one answer to that question. 287(g) refers
to a law, written into the 1996 comprehensive
immigration reforms, which for the first time in
US history created a formal mechanism for federal
executives to extend to local community-based
agencies the extraordinary arrest and incarceration
powers originally carved out for immigration police
stationed at the borders. This devolution—shifting
immigration enforcement from federal to local
hands—brings the border to the interior of our
nation.
Under Homeland Security’s Immigration and
Customs Enforcement (ICE), 287(g) was
developed into a program that targets criminal
law enforcement agencies as frontline enforcers
of civil immigration laws. In 2005, ICE began
recruiting diverse state and local law enforcement
agencies—from county sheriffs to traffic police—to
arrest suspected noncitizens. Critics warned that
merging immigration enforcement into police work
could lead to rampant abuse. Time has shown that,
indeed, the 287(g) program harms, rather than
serves, public safety. Unfunded by federal statute,
it draws state and local tax monies into the failed
federal immigration enforcement business. Not

only has the 287(g) program failed. It was destined
to fail because civil immigration and criminal law
enforcement are incompatible enterprises. Also,
ICE is incompetent to manage devolution.
The report is organized into five chapters. In
Chapter 1, 287(g): A Pilot Project in Devolution, we
provide an overview of the ICE 287(g) program
nationwide. The program confers to state and
local law enforcement agencies the extraordinary
search, arrest and detention powers of the federal
immigration authority. Ironically, these “civil”
powers are more potent that criminal powers. ICE
has described the program as a public safety effort
to get “criminal illegal aliens” off the streets. Yet
local 287(g) officers have used their civil powers
precisely when they lack probable cause of a crime.
Data indicates that racial demographics—rather
than crime rates—have propelled growth of the
287(g) program. The ICE literature also incorrectly
advertises the 287(g) program as a net money saver.
Yet by law, the feds cannot reimburse states and
localities for participating. Through the program,
states and localities are set up to bailout the federal
government’s failed immigration enforcement
business.
In Chapter 2, The Arizona Laboratory, we
investigate the impact of the 287(g) program
on taxpayers, the criminal justice system, the
immigrant community and US citizens. The
introduction of 287(g) in this conservative lawand-order state accelerated a massive crackdown
on immigration violators that swiftly corrupted
the mission of the criminal justice system. ICE
has granted its largest and most comprehensive
287(g) contract to the infamous Maricopa County
Sheriff, Joe Arpaio. Arpiao was already widely
criticized for mismanaging his county jails and
for trespassing into neighboring jurisdictions to
unlawfully dump immigrants at the border for
deportation. For months on end Arpaio’s “posse”
has conducted grand-standing “sweeps” of day
laborers and made dubious arrests of Latinos for
minor traffic violations. Yet ICE claims, despite
ample documentation to the contrary, that Arpaio
has not violated the terms of his 287(g) contract.

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INTRODUCTION

In Chapter 3, ICE: Force without Mission, we
examine ICE’s structural failure to supervise
devolution efforts more generally. Under the
Bush Administration, immigration authority was
merged into homeland security and ICE became
the largest investigative arm of the Department of
Homeland Security. Yet ICE has prioritized force
over intelligence. The agency sets out to “remove
all removable aliens”—a goal utterly disconnected
from economic realities and measurable public
safety impacts. Internally, ICE is a case study in
organizational failure. Inadequate oversight of
immigration detention, its largest devolution
program, has led to numerous detainee deaths and
congressional demands for reform.
Chapter 4, New Jersey Dollars & Sense, recounts
how a vigorous campaign for a 287(g) contract
waged by the Democratic mayor of Morristown,
New Jersey was defeated. A community-based
immigrants rights organization charged that it
would harm police relations with immigrant
communities. A technical requirement of the
287(g) program—dedicated jail beds—required the
Republican sheriff of Morris County to weigh in.
He determined that the proposed 287(g) program
did not appear to serve any public safety mandate,
but it would cost local taxpayers a fortune. Morris
County Freeholders decided to reject the Mayor’s
plan.
Finally, we include a set of recommendations
for reform. A thorough investigation of the
program should be undertaken by the General
Accounting Office. Moreover, basic safeguards
against mismanagement of all ICE immigration
enforcement programs are needed.



LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

CHAPTER I:
287(g):
A Project in
Devolution
In the aftermath of September 11th the Bush
Administration moved to shift immigration
enforcement from federal to local hands.
When smoke was still rising from the ashes of
Ground Zero former Attorney General John
Ashcroft declared that all police have the “inherent
authority” to arrest and detain deportable
immigrants.1 This claim, known as the inherent
authority doctrine, reversed norms asserted by
Ashcroft’s own agency. In 1989 the Department
of Justice took the position that local police are
not allowed to enforce most immigration laws.2
Ashcroft refused to disclose the rationale underlying
his wildly controversial idea. To date, only a heavily
redacted legal memo has been made public.
The inherent authority doctrine has far reaching
implications. Well over five percent of the US
population is deportable, including more than
twelve million undocumented residents and legal
permanent residents with past criminal convictions.
More than fifteen percent of US families are mixedstatus with at least one parent who is a noncitizen
and one child who is a citizen. While programs
to permanently or temporarily legalize status can
shrink the numbers in the shadows, they cannot
erase an ever-present deportable population.
Deportable people—who by law must be expelled
from our borders—are, in fact, integrated into
American families, businesses, and communities.
This paradox complicates a basic question: Who
should enforce our nation’s immigration laws?3
Ashcroft proposed that the power rests in local
public servants.
Ashcroft’s position conflicted with the longstanding
plenary power doctrine. In the late nineteenth
century, the US began denying physical entry to
Chinese immigrants based solely on their race and

national origin.4 When Chinese exclusion received
its first legal challenge in 1893, the Supreme Court
issued a two-pronged ruling.5 First, the Court
upheld that the nation possessed a sovereign right
to protect its borders and, therefore, sanctioned de
jure discrimination based on immigration status.
The Supreme Court echoed this historic decision
in 2003 when it said, “Congress regularly makes
rules [in immigration] that would be unacceptable
if applied to citizens.”6 Second, the Court identified
the duties accompanying this sovereign right
as those of the federal government. If the US is
defined as a nation by its immigration policies,
leaving the enforcement of immigration laws to
state discretion would destroy the consistency of
the American identity by fracturing the country
into immigrant-receiving versus policing states.
Immigration remains one of the few plenary police
powers entrusted to the federal government.
While Ashcroft’s post-September 11th declaration
was inconsistent with immigration history it
can be explained by two contemporary trends in
American law enforcement: expanding the mission
and jurisdiction of criminal agencies to include a
new activity;7 and bringing immigration violations
within the purview of the criminal justice system.8
Although the inherent authority doctrine came
at a moment when the US underwent a massive
expansion of executive power, critics from all
corners charged that it was a radical and even
chaotic proposition.9 The delegation of immigration
control to agencies that historically have no
immigration expertise lends itself to rampant abuse.
Criminologist Jonathan Simon observes, “Never in
our history has the government unveiled a dramatic
power of local law enforcement that we never knew
it had before … Locally, you simply don’t see that
type of juridical expansion. You see more creep,
accumulated powers over time.”10
Inherent authority faded from public discourse
just as a set of other controversies pushed Ashcroft
to resign from the Justice Department.11 Yet the
nation’s lead prosecutor articulated the vision of a
newly energized movement to restrict migration by
devolving immigration enforcement from federal
to local hands. Devolution proponents charge that

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CHAPTER I. 287(g): A Project in Devolution

states and localities have no choice but to enforce
immigration laws because the feds have failed to
protect the borders. Additionally, they maintain
that state and local agencies can more effectively
capture migrants than the mammoth federal
bureaucracy, thereby discouraging future flows.12
Locally, the devolution movement has gained
ground by creating new state-level immigration
statutes tackling employment, law enforcement,
drivers’ licenses, and public benefits. According
to the National Conference of State Legislatures,
more than 1,500 pieces of legislation related to
illegal immigration were introduced in 2007.13 Of
these, 244 became law—three times the number
passed in 2006. At the federal level, lawmakers
have introduced and passed a growing number of
bills to make immigration enforcement mandatory
for states and local agencies.14 To date there is no
concomitant movement against devolution.
A tiny section of law passed under the Clinton
Administration provided the vehicle for
devolution.
Under the Bush Administration the greatest
advance in devolution came through Section
287(g) of the 1996 Illegal Immigration Reform
and Immigrant Responsibility Act. Two years after
the deregulation of North America’s economic
borders through international treaty, a Republican
Congress and Democratic President Bill Clinton
passed domestic laws that tightened the physical
borders.15 The 1996 laws may be remembered
as comprehensive interior enforcement reforms.
Failing to speak to the question of legalization, they
instead expanded the deportation and detention
systems. Moreover, they reduced the value of lawful
permanent residency by growing the categories
of legal residents who could be de-legalized and
expelled permanently.16
Section 287(g) enables the federal government to
devolve the powers of immigration officers to state
and local employees. Specifically, Section 287(g)
states:
The Attorney General may enter into a
written agreement with a State, or any

10

political subdivision of a State, pursuant
to which an officer or employee of the
State or subdivision, who is determined
by the Attorney General to be qualified
to perform a function of an immigration
officer in relation to the investigation,
apprehension, or detention of aliens in
the United States (including the trans­
portation of such aliens across State lines
to detention centers), may carry out such
function at the expense of the State or
political subdivision and to the extent
consistent with State and local law.17
[Emphasis added]
The statute indicates that any public servant may
become a deportation agent, from a police officer
to a traffic safety agent, public benefits caseworker,
or hospital employee. First, however, the state or
local entity must sign a written agreement with
the federal government that details the powers and
duties to be authorized, the contract duration, and
the specific federal immigration office that will
“supervise and direct” each deputized officer. Each
state or local officer must also receive “adequate
training regarding the enforcement of relevant
Federal immigration laws.”18
The work is purely voluntary. State and local
agencies are not required to perform deportation
duties, nor are they to be financially compensated.
Congress expressly forbade a profit motive.
Nevertheless, elected leaders were willing to invest
local resources. As Utah Senator Orrin Hatch
explained, “A lot of States, just to get these people
out of their States and get them into detention
facilities, would pay for the costs themselves.”19
By wrapping parameters around the ability of a
public servant to perform immigration functions,
287(g) flatly refutes the inherent authority doctrine.
Even immigration officers are not authorized to
make arrests without formal certification via federal
procedures.20 But by creating a deputizing process,
the statute presents, for the first time in American
history, a formal mechanism for federal executives
to extend extraordinary arrest and incarceration
powers to community-based agencies.

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Civil immigration law permits greater search,
arrest, and incarceration powers than
criminal law.
The restrictionist Center for Immigration
Studies—advocating that local public servants
take on immigration enforcement—emphasized
“immigration law provides powerful investigative
authorities not available to local or even other
federal LEAs” [Emphasis added].21 This observation
reveals one reason agencies might volunteer for the
unfunded deportation mandate: to expand their
powers. To appreciate the potentially transformative
impact of 287(g) one must understand the
difference between civil immigration and criminal
laws.
Civil immigration law is as complicated as the tax
code. Like the Internal Revenue Service, the federal
immigration authority is a civil agency. But unlike
tax auditors, immigration agents have the power
to conduct mass civil incarceration. These civil
officers, in fact, have investigation, apprehension,
and detention powers that law enforcement officers
in the criminal justice system do not have. This
fact is counterintuitive. The word “civil” sounds
less severe than “criminal.” One might infer that
civil violations are less serious than criminal ones
and, therefore, involve less force and fewer penalties
than criminal enforcement. That is increasingly not
the case. Taken together, the 1996 laws are cited
for making prosecutorial power the cornerstone
of the civil immigration system, both by moving
discretion out of the hands of immigration judges
to those of deportation agents and prosecutors, and
by arming these civil officers with new harsh powers
like the ability to enforce mandatory detention and
lifelong exclusion.22
As the rules of “civil enforcement” evolve through
litigation, executive policies, and legislation, the
line between civil and criminal law becomes an
ever-moving target. While the Constitution applies
to all persons, civil enforcement generally has fewer
procedural safeguards than criminal enforcement
since, according to the traditional rationale, civil
penalties are less severe than criminal penalties.
In immigration, however, civil penalties for
possession of marijuana (e.g., lifelong exclusion)

may be more severe than the likely criminal penalty
(e.g., probation). Nevertheless, key constitutional
protections for criminal defendants are not applied
equally to civil immigration respondents:
•	 ARREST WITHOUT PROBABLE
CAUSE. Police seeking to search or arrest
a person must have some small level of
evidence, typically probable cause. The
exclusionary rule of the Fourth Amendment
gives officers an incentive to comply since
evidence obtained unlawfully cannot be
admitted in criminal court. But the Supreme
Court has ruled that this constitutional
protection does not apply equally to
civil immigration arrests.23 Following
September 11, 2001, law enforcement
officers conducted mass sweeps in Arab,
Muslim and South Asian communities.24
Immigration law was the tool of choice.
Thousands were civilly arrested—not for
reasonable suspicion of terrorism or crime,
but for overstaying a visa.
•	 INDEFINITE INCARCERATION.
The US currently incarcerates 2.3 million
people. While Black males comprise the
largest incarcerated group with 4.8 percent
in prison or jail, immigrants are the fastest
growing segment of the prison population.25
The immigration authority is the only
civil federal agency that has the power to
implement policies of mass incarceration.
Immigration detention typically occurs
in a criminal penal institution. Yet in the
eyes of the law, it is a civil process that a
suspected noncitizen endures while in
deportation proceedings—not a sentence
imposed for a criminal conviction. The
Eighth Amendment protection against
cruel and unusual punishment is not
applicable. In the same 1996 legislation that
contained section 287(g), Congress created a
“mandatory detention” statute that permits
the immigration authority to indefinitely
hold broad categories of noncitizens who
face deportation including legal residents
convicted of simple possession of drugs and
people who enter the US seeking asylum.26
By 2005 the percentage of immigration

11

CHAPTER I. 287(g): A Project in Devolution

detention bed space devoted to mandatory
detainees reached eighty-seven percent.27
•	 TRIAL WITHOUT COUNSEL. Not all
people facing deportation have a hearing.
Those that do are “respondents” rather than
defendants. The right to a public defender,
as provided in the Sixth Amendment,
does not apply to civil proceedings. A
respondent goes before the “immigration
judge”—a civil adjudicator appointed by
the attorney general—rather than a member
of the Title III judiciary.28 The immigration
court reports that from 2003 to 2007 less
than fifty percent of respondents secured
legal representation for any part of their
deportation proceedings. The lack of counsel
impacts the ability to preserve rights and
raise arguments, such as challenges to
unlawful civil arrest. The legal representation
data does not count those denied a court
hearing and deported through a process also
created in 1996 called “expedited removal.”

Representation in Immigration Courts
Year
FY03
FY04
FY05
FY06
FY07

Represented
120,170
117,777
110,282
113,602
115,900

Unrepresented
130,647
142,134
204,445
210,447
156,979

Total
250,817
259,911
314,727
324,049
272,879

Source: Executive Office of Immigration Review

•	 NO PROTECTION FROM
DOUBLE JEOPARDY AND SELFINCRIMINATION. Deportation,
like detention, is a civil consequence
rather than a “punishment.” Therefore
deporting a noncitizen after completion
of a criminal sentence is not considered
double jeopardy in violation of the Fifth
Amendment. Also the constitutional right
to remain silent—the protection against
self-incrimination—receives inconsistent
application in immigration courts. Should
an immigration suspect choose to remain
silent, some immigration courts will draw
an adverse inference from a failure of the

12

suspect to speak—something not allowed in
criminal cases in similar contexts.
•	 NO STATUTE OF LIMITATIONS. There
is no statute of limitations on immigration
offenses. A wide range of people may be
subject to deportation including a lawful
permanent resident (green card holder)
convicted of committing a crime at any
point in the past; someone who overstayed
their visa and is currently sponsored for legal
residency through a US citizen spouse; and
a person who crossed the border over twenty
years ago, even if that person is now the
parent of American-born children.
It is incorrect to say that civil immigration officers
always have more power than police. For example,
a criminal search warrant issued by a judicial court
allows an officer to enter a private dwelling against
the resident’s will. The immigration “warrant,”
which is issued by the prosecuting agency itself,
does not grant the same authority. As Michael
Chertoff, Homeland Security Secretary under
George Bush, explained, “[A] warrant of removal
is administrative in nature and does not grant the
same authority to enter dwellings as a judicially
approved search or arrest warrant.”29
Under ICE, the 287(g) statute evolved into a
program that takes the handcuffs off criminal
law enforcement agents by giving them the
tools of civil immigration officers.
Following the September 11th attacks, the US
Congress formed the Department of Homeland
security. The Bureau of Immigration and Customs
Enforcement, or ICE, is one of three immigration
agencies comprising the department. ICE soon
turned to the 287(g) statute as a “force-multiplier”
in its mandate to enforce immigration laws within
the US interior.
The 287(g) statute had scant history before the
creation of ICE. In 2002 the state of Florida
and the Justice Department’s Immigration
and Naturalization Service signed the first
Memorandum of Agreement (MOA) to “address
the counter-terrorism and domestic security needs
of the nation and the State.” The MOA authorized

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

thirty-five state police officers to provide back-up
support to immigration enforcement activities led
by the federal government.30

ICE recruited all law enforcement agencies—a
broad term encompassing many missions—to the
frontlines of its pilot project in devolution.33

When ICE renewed that 287(g) MOA with
Florida, the newborn agency modified the language
to make the targets less serious but the tools more
powerful. The reference to “counter-terrorism”
was deleted, leaving only the vague mandate of
“domestic security.” Rather than provide back-up
support to the feds, the deputized officers could
now lead the charge themselves with the power
to “arrest without warrant for civil and criminal
immigration violations.”

The program has two types of MOAs: one for
Taskforce Officers (TFO) who may conduct civil
immigration searches and arrests on the streets;
and one for Jail Enforcement Officers (JEO)
who may place civil warrants on all noncitizens
(undocumented and legal) in a correctional facility
or jail so that they may be held while awaiting
transfer into ICE custody. ICE granted twentyeight MOAs for jail enforcement, twenty-three for
street enforcement, and twelve containing both of
these powers.

The program mission was expanded, both in the
breadth of civil powers given and in the types of
partners sought. An ICE fact sheet marketed the
287(g) program as a tool for all state and local law
enforcement officers who are “first responders on
the scene when there is an incident or attack against
the United States. During the course of daily duties,
they will often encounter foreign-born criminals
and immigration violators who pose a threat to
national security or public safety.”31
The US has nearly 39,000 state and local
governments and more than 1.8 million police
and corrections employees.32 By August 2008, ICE
signed a total of sixty-three MOAs that deputized
more than 840 officers and led to 70,000 civil
arrests. In the start-up phase of 287(g), rather
than test the program with one type of agency,

Law Enforcement Agencies

1 traffic agency
2%

6 state police
8%
3 state corrections
5%

13 city police
21%

1 city jail 2%

39 county
sheriffs
62%

Source: Immigration and Customs Enforcement, 2008

Memoranda of Agreement
12
Jail & Street
Enforcement

19%
23
Street
Enforcement

28
Jail Enforcement

44%

37%

Source: Immigration and Customs Enforcement, 2008

While law enforcement agencies are the
target partner, “criminal illegal aliens” are
the purported public safety target.
The ICE fact sheet states that 287(g) partners
“gain necessary resources and authority to pursue
investigations relating to violent crimes, human
smuggling, gang/organized crime activity, sexually
related offenses, narcotics smuggling, and money
laundering.”34 But the primary skill taught in this
devolution program is checking for immigration
status through electronic media. While a federal
immigration officer typically requires five months of
initial training, ICE provides state and local officers
with a five-week crash course on immigration

13

CHAPTER I. 287(g): A Project in Devolution

law and civil enforcement powers at the Federal
Law Enforcement Training Facility in Glynco,
Georgia.35 ICE also provides deputized agencies
with access to notoriously inaccurate federal
databases. A government audit found that one of
these databases, which ICE relied on heavily for
home raids, proved inaccurate in up to fifty percent
of cases, thereby leading to the collateral arrest of
unintended targets.36
The ICE fact sheet continues:
The 287(g) program is not designed to
allow state and local agencies to perform
random street operations. It is not
designed to impact issues such as
excessive occupancy and day laborer
activities. In outlining the program, ICE
representatives have repeatedly empha­
sized that it is designed to identify
individuals for potential removal, who
pose a threat to public safety, as a result
of an arrest and/or conviction for state
crimes. It does not impact traffic offenses
such as driving without a license unless
the offense leads to an arrest … Officers
can only use their 287(g) authority when
dealing with persons suspected of
committing state crimes and whose
identity is in question or are suspected of
being an illegal alien.37 [Emphases added]
This crime-fighting language sounds good, but
raises a basic question: Are immigrants a strategic
target group for crime fighters? Studies consistently
indicate that immigrants commit fewer violent
and nonviolent crimes.38 By these public safety
measures, immigrants are not a strategic target for
an anti-crime campaign. Furthermore, criminal
law already gives state and local law enforcement
the power to execute criminal arrests when anyone,
including a noncitizen, is suspected of a crime.
The 287(g) program is useful precisely when an
arrestee is not a “criminal illegal alien” and an officer
lacks reasonable suspicion for a crime. The civil
powers take the handcuffs off law enforcement
while simultaneously redirecting their attention
to a dubious public safety target. P.J. Crowley,
a Homeland Security expert at the Center for

14

American Progress, is not opposed to local police
involvement in counter-terrorism but does oppose
the 287(g) program as a distraction.
If we are going to intercept a terrorism
plot, it’s much more likely that the cop
on the beat is going to stumble on that
than some terrorist analyst from a
computer saying “oh, eureka!” … It’s
probably going to be a cop walking
around with a dog who will find
someone … this [287g] program is
draining resources away from terrorism
and chasing people who are a challenge
to us, but not a security threat. That’s the
great irony.39
The 287(g) program raised social, legal, and
financial concerns from the outset.
The first critics of the 287(g) program charged that
it would break trust between police and immigrant
victims of crime and place police in an adversarial
relationship with entire communities at exactly
the same time that counter-terrorism and anticrime efforts required partnership.40 While it is
methodologically difficult to calculate the rate of
unreported crime, community policing concerns
have permeated the debate. In 2006, police chiefs
of the nation’s largest cities issued a joint statement
rejecting local immigration enforcement, citing
community policing and funding concerns.41 In
one 287(g)-deputized city a resident wrote a letter
to the editor of the daily newspaper asserting,
“Immigrants are being marginalized and victimized
by cops and robbers alike.”42
In North Carolina, one county resolution against
joining the ICE program charged, “Jurisdictions
that have entered into these memoranda of
agreement have experienced increased violence
against Latino/Hispanic communities and increased
incidents of reported racial profiling against people
of color communities.”43 Early on, critics of the
287(g) program charged that it could easily lead
to racial profiling. Similarly to some new state and
local laws on immigration, the 287(g) program may
have racially-motivated discriminatory intent. In
Arizona, deputized local government agencies and

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

officers are now facing a class action lawsuit with
lawyers raising equal protection arguments under
the Fourteenth Amendment in court.44
Devolution efforts like 287(g) and local
immigration laws raise another constitutional issue.
Under the supremacy clause of the Constitution,
state and local governments can be preempted from
acting in legal arenas where the federal legislative
scheme is sufficiently complex and comprehensive.
Courts may find that Congress did not intend that
the state or locality play any role in immigration
enforcement, whether it be in making laws or
applying them.
The city of Hazleton, Pennsylvania, is a case study
in preemption. In the wake of September 11,
2001, Latino New Yorkers moved into Hazleton,
increasing its population by up to thirty percent.
While the newcomers included citizens and longterm legal residents, their visibility prompted the
city to pass a series of immigration ordinances
prohibiting the employment and housing of
“illegals.”45 But the Hazleton ordinances risked
replicating a federal statute. The 1986 Immigration
Reform and Control Act, popularly known for
giving “amnesty” to three million immigrants,
was the first bill in the US to make the hiring of
undocumented labor a criminal act.46 Hazleton
distinguished its ordinance from the 1986 law by
highlighting that the city terminated the permits
of noncompliant landlords and employers—an
altogether different sanction from the civil and
criminal penalties imposed by the feds.47 A US
district court rejected the argument, striking
down the ordinances on the grounds of federal
preemption.
Legal liability is another issue raised but not
settled by the 287(g) program. The 1996 statute
explains that any deputized agent is “subject to
the direction” of the feds. Each MOA consistently
names ICE as the supervisor and provides that the
federal government will assume liability for any
287(g) deputized officer facing a lawsuit under the
Federal Tort Claims Act (FTCA). According to law
professor Nancy Morawetz this legal protection
may be feeble. She explains:

The devil is in the details. If ICE directs
local officers in a way inconsistent with
local and state rules, there may be no
federal protection from lawsuit. Local
authorities have no protection when they
engage in racial profiling because that is
directly against official federal policy,
even if the federal government itself in
practice engages in similar profiling.
Locals think they are wearing federal
protection. Ironically, though, the 287(g)
MOA may be protecting ICE from
liability by displacing it onto local
shoulders.48
Morawetz, director of the immigration clinic at
New York University School of Law, spoke about
these legal liability issues at the Police Foundation’s
2008 conference. She presented a common
scenario: If a deputized officer incorrectly used civil
immigration authorities to search, interrogate, or
arrest a US citizen believed to be an undocumented
Mexican national, would that citizen sue the
287(g) deputized officer or ICE as the supervising
agency?49 In the context of civil detention, the
federal government has argued that local criminal
facilities that house ICE detainees should be
considered the “legal custodian” and the respondent
for lawsuits, such as habeas corpus actions.50
Criminologist David Harris, an early critic of the
287(g) program, explained a basic tendency of law
enforcement agencies to grow their police powers
by testing the law’s limits.
[Law enforcement] begins with the
deployment of new tactics or techno­
logies. When the new tactics—roadway
checkpoints to detect drunk driving, for
example—become contested issues in
courts, law enforcement agencies and
their allies fight hard to get judges to
bless the new approaches. Once
approved, these new tactics come into
wider use throughout law enforcement,
and yet another new tactic at the next
legal boundary line—for example,
roadway checkpoints not to apprehend
drunk drivers but to detect those carrying
narcotics—undergoes the same cycle of
use and constitutional testing in court.51

15

CHAPTER I. 287(g): A Project in Devolution

•	 Sixty-one percent had a property crime
index lower than the national average of
3334.5. Also sixty-five percent saw an
overall decrease in property crimes from
2000 to 2006.

Following the police conference Nancy Morawetz
reflected, “Police seem to see civil immigration
law as just another tool in the toolbox. But ICE
is dangling civil powers like a carrot to join the
program. Pendergraph began the morning panel
literally saying to the police officers, ‘We can make
a person disappear.’ Jaws dropped. People couldn’t
believe he said that.”52 James Pendergraph is the
executive director of the ICE Office of State and
Local Coordination.

•	 Eighty-seven percent had a rate of Latino
population growth higher than the national
average.53
ICE signed nearly eighty percent of its 287(g)
agreements with agencies located in the US South.
While it is true that crime rates in that region are
higher than in others, ICE’s focus in the South
is disproportionate and confounds a balanced
approach to public safety.

Data indicates that race—rather than crime—
has propelled 287(g) program growth.
In the initial phase, ICE did not assess or prioritize
regions heavily impacted by “criminal illegal alien”
activity. While the relationship of the 287(g)
program to public safety is elusive at best, race
seems to be a guiding factor. By August 2008,
among ICE-deputized states and localities:

In the coming years the 287(g) program may spike
property crime arrests and clog criminal courts as
police performing immigration arrests increasingly
lodge minor state charges in addition to civil federal
charges. The current focus on traffic enforcement
against “criminal illegal aliens” is instructive. In
Gaston, North Carolina, ICE-deputized officers
reported that misdemeanors constituted ninetyfive percent of state charges filed against 287(g)
arrestees; sixty percent of these charges were

•	 Sixty-one percent had a violent crime index
lower than the national average of 473.5.
Also fifty-five percent witnessed an overall
decrease in violent crimes from 2000 to
2006.

Number of 287(g) Agreements by Census Regions
WEST

MIDWEST

WA

ME

PACIF
IC

ID

NV

7
UT

WEST
NORTH
CENTRAL

SD
WY

2

VT N

WI

NE

CO

KS

NY

MI

E
MIDDLTIC
ATLAN

EAST
NORTH
CENTRAL

IA

MOUNTAI
N

4

AND
ENGHL

MN

OR

CA

AST
NORTHE NEW

ND

MT

IL

PA

OH

IN

MD

MO

MA

CT

RI

NJ

DE

DC

WV

VA

KY
AZ

NM

OK

50
AR

WEST
SOUTH
CENTRAL
TX

TN

EAST
SOUTH
CENTRAL
MS

AL

NC

SOUTH
ATLANTIC
SC

LEGEND

GA

DIVISION
STATE

LA

FL

SOUTH
Source for 287(g) agreements: Immigration and Customs Enforcement, Map adapted from “Census Regions and Divisions of the United States” U.S. Department of
Commerce Economics and Statistics Administration U.S. Census Bureau

16

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

for non-DWI traffic violations.54 Neighboring
Alamance County reported that eighty percent
of 287(g) arrestees had been charged with
misdemeanors—forty-five percent were charged
with non-DWI traffic violations.
In Berry Hill, Tennessee, a police officer stopped
Juana Villegas, a Latina woman, for driving
without a license.55 She was in her last days of
pregnancy. The officer had the option to write a
ticket or make an arrest. He chose the latter and
told her three other American-born children in the
car to say goodbye to their mom. Villegas was taken
to Davidson County Jail where ICE-deputized
corrections officers placed a civil immigration
detainer on her. Subject to indefinite incarceration
and pending ICE action, Villegas could no longer
post the bond needed for her release. While in
custody, she went into labor.56 Although technically
a civil detainee, standard jail policies were applied.
She was shackled to her hospital bed before and
after giving birth and was not allowed to nurse her
newborn son for the following two days.
Tennessee was an early proponent of the 287(g)
program. As chair of the Tennessee Senate
Transportation and Safety Committee, State
Senator Mark Norris of Collierville cited the
importance of curbing illegal immigration, not
crime. “Our troopers must have the authority
in the course of their regular duties to detain,
interrogate and arrest illegal aliens.”57 Against the
grain of its own fact sheet, ICE deputized the
Tennessee Department of Safety in June 2008 to
perform civil immigration arrests on the streets
and highways. In that same month, the Missouri
State Highway Patrol—an agency whose mandate
is traffic law enforcement—also joined the 287(g)
ranks.58
Local politicians have launched “crime
suppression sweeps” against day laborers,
drivers of color, and “gang members.”
Alabama Governor Bob Riley was the second state
executive to sign a 287(g) MOA. In October 2003,
when counter-terrorism was still the purported
program mission, ICE deputized twenty-one state
troopers from the Alabama Department of Public

Safety to perform civil immigration searches,
arrests, and detentions. Colonel Mike Coppage,
the agency’s director, promised they would not
conduct “sweep” searches but would simply add
immigration checks to their normal duties. By
February 2005, forty-four immigrants had been
seized under the program. Alabama Senator Jeff
Sessions announced plans to train twenty-five more
troopers to identify and detain noncitizens during
traffic stops.59
The counter-terrorism mission crept when the
mayor of Hoover, Alabama, announced plans to
put his city at the forefront of local immigration
enforcement. Founded in the era of white flight,
Hoover is a suburb of the predominantly AfricanAmerican city of Birmingham. In 2000 eightyeight percent of the town’s 63,000 residents were
White, compared to just twenty-four percent of
Birmingham. But Hoover’s racial composition
underwent a shift in the 1990s. Between 1990 and
2000, the Latino population grew to four percent
of the city population, compared to 1.6 percent in
Birmingham and 1.7 percent statewide.
In 2004 Tony Petelos campaigned for mayor on a
promise to work with the feds to crack down on
immigrant day laborers. City officials had already
been debating what to do about the “Lorna Road
problem”—a stretch of land near the Interstate 459
overpass where Latino men gathered each morning
to look for work.60 Homeland Security funding
and partnership with ICE provided Petelos a
creative way to make good on his anti-immigration
campaign promise.
Following his election victory, Mayor Petelos
explained, “Homeland security starts from the
bottom up. Hoover is taking the lead on this.”61
Hoover became a hub for DHS activity. It bought
a new $325,000 fire truck with DHS grants. It
hosted a three-day conference on “agroterrorism.”62
The mayor tapped Police Chief Bob Berry to
head the new city “Department of Homeland
Security and Immigration” at an annual salary of
$110,000.63 Petelos traveled to Washington, DC,
to meet with the Alabama congressional delegation.
He had his eyes set on $28 million earmarked by
the feds for the state’s counter-terrorism efforts.

17

CHAPTER I. 287(g): A Project in Devolution

Birmingham immigrant rights advocate Helen
Rivas questioned his wisdom, asking, “Are they
assuming that tomato pickers are going to be
throwing bombs?”
Hoover itself did not join the 287(g) program.
But in July 2005, the city served as a major launch
site for another ICE “criminal illegal alien” effort
called Operation Community Shield. According
to DHS Secretary Chertoff, a national two-week
sweep was needed to rid the country of “the very
worst gang offenders here in the United States.”
Hoover police chief Nick Derzis was one among
fourteen law enforcement officials at Chertoff’s side
in Washington for the launch. While reports of
gang activity were rare in central Alabama, Derzis
explained, “We’re in the stage where we’re trying to
be proactive.”64 Local attorney George Huddleston
charged that it was “insane to think that Hoover,
Alabama is a hotbed of gang activity.”
Gang affiliation is as nebulous as traffic violations
are plentiful.65 For Hoover police, the term was like
Velcro: put on and take off as needed. Captain A.C.
Roper explained, “We have seen indicators of the
initial stages of gang activity, graffiti on walls and
the sides of businesses. We have also arrested several
individuals on charges who have had various gang
tattoos.” The police admitted that they saw no gang
infiltration in schools, a typical site for recruitment.
Officials charged that gangs were concentrating in
apartment complexes along Lorna Road. Business
managers in the area said they had not seen
evidence of gang activity.66 On the morning of the
first “gang” raid, thirty people with Latino names
were booked at the Hoover City Jail. Rather than
face the penalties and protections of the criminal
justice system, they were quickly transferred to a jail
in neighboring Gadsden where ICE conducts civil
immigration processing for deportation.67
Huddleston alleges that a chain of memos and
emails he received in a discovery motion prove
that the Hoover DHS was created solely to police
the Latino population. Both a local judge and
the local ICE office were willing to collaborate
on the problem of day laborers. Weeks after the
“gang” raids the Hoover City Council terminated
a contract with Catholic Family Services, a faith-

18

based community group that operated a day
laborer pick-up center near Lorna Road. In the
coming months ICE trained local police to detect
fake IDs—a useful criminal charge in selective
enforcement campaigns against undocumented
immigrants.68
ICE has deputized politicians after they
champion anti-immigrant agendas.
By August 2008, sixty-two percent of 287(g)
partners were county sheriff departments. The
sheriff is an elected official who performs a variety
of duties, including the execution of civil eviction
orders, criminal arrests for property and violent
crimes and running the county jail. The 287(g)
program deputizes two types of sheriff’s employees:
corrections officers in the jail and officers on street
patrol.
On the street level, sheriff’s officers already have
the power to arrest anyone, including immigrants,
when there is probable cause to believe that a crime
may have been committed. The 287(g) authority
enables officers to civilly arrest an individual when
they lack evidence of a crime. The arresting agency
must then hold the civil arrestee in a local jail.
A county jail typically holds pre-trial detainees
who are innocent until proven guilty and people
convicted of low-level crimes that carry a sentence
of less than one year. ICE-deputized corrections
officers place civil warrants on any noncitizen
detainee—legal or undocumented, convicted or
pending charges—to ensure that they are placed
in deportation proceedings upon resolution of the
criminal case.
Sheriffs are an ideal partner for ICE because of their
capacity to incarcerate civil immigration arrestees.
While police chiefs have questioned the public
safety value of deputizing law enforcement agencies,
sheriffs have sought 287(g) authority as a political
trophy in local anti-immigration campaigns.
Consider Sheriff Richard Jones of Butler County,
Ohio. Upon being elected in 2005 Jones showed
single-minded fixation on undocumented
immigrants. He mailed ICE an invoice for
$71,610—his estimated cost of jailing fifteen

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

“Being part of the 287(g) program
will not only assist us with local
issues and the deportation of illegal
aliens process, but can lead to a
closer working relationship with
ICE and hopefully the housing of
more of their prisoners” [Emphasis
added].72
His original complaint about
the cost of incarcerating
undocumented detainees quickly
morphed into a desire to lock up
more people, this time without
criminal charges. For example,
ICE-deputized Butler officers
used their 287(g) powers during
Waukegan IL - Protestor against 287(g) program holds sign that combines the English word
a routine traffic stop to arrest
“police” with “La Migra,” the Spanish word for “Border Patrol.” Photo by Aarti Shahani.
Armando Mondragon. He was
undocumented detainees for a total of 1,023
kept in the county jail for forty-two days without
billable days. He asked on his blog, “Why should
criminal charges. A county corrections officer
Butler County taxpayers have to pay for jail costs
deputized to use 287(g) authority placed a civil
associated with people we don’t believe should
“detainer” on him, thereby initiating deportation
ever have been in this country, let alone this state,
proceedings.73 Mondragon has lived in the US
69
since 1996 and is the father of five American-born
or county, to begin with?” In 2006 he erected
children.
a yellow street sign outside his office reading
“Illegal Aliens Here” with an arrow pointing to the
By statute, ICE is prohibited from reimbursing
adjoining jailhouse. He also posted six billboards in
a state or locality for the costs of civil arrests and
the conservative, blue-collar town warning, “Hire
incarceration under the 287(g) program. ICE may
an illegal—break the law!” He took out half-page
be misrepresenting this fact. An attendee at the
newspaper ads with the same message and started a
2007 conference of the National Association of
tip line for people to report employers suspected of
Sheriffs alleges that ICE agents told the audience
hiring undocumented immigrants.70
that they pay up to ninety dollars per day for each
Butler County did not have a documented
immigrant arrested under the 287(g) program.74
“criminal illegal alien” problem. In fact, its violent
Other sheriffs like Jones see the unfunded program
crime index dropped forty percent in the years
as a fast track to funded federal initiatives like the
preceding entry into the ICE program and stood
State Criminal Alien Assistance Program.75 This
program partially reimburses states and localities for
far below the statewide average.71 But the county
did have a tough-on-immigration campaign,
the cost of incarcerating noncitizens facing criminal
documented in national newspapers, which sought
charges. Butler County enrolled just after joining
to use the tools of criminal law enforcement against
287(g) and received a total of $26,565 for FY
foreigners. Rather than take pause, ICE granted
2008.76 While Hoover, Alabama, found gold in the
Homeland Security hills, Sheriff Jones has collected
the Butler County Sheriff’s Office the tools of civil
pennies.
immigration officers. Sheriff Jones signed a 287(g)
agreement in January 2008. It conferred both
the power to issue civil detainers in the jails and
perform civil arrests on the street. He commented,

19

CHAPTER I. 287(g): A Project in Devolution

For some, the 287(g) program has amounted
to handing ICE a blank check.
Incarceration may be the greatest single expense for
a state or local entity under the 287(g) MOA. The
deputized entity must hold a person arrested under
a civil immigration warrant in its own correctional
facility until ICE takes the detainee into federal
custody.
Prince William County, Virginia grossly
under­estimated the cost of local immigration
enforcement. While the 287(g) program was being
debated, Police Chief John Evans of Manassas Park
asserted that the program would target “serious
habitual misdemeanants such as two- to three-time
time repeat DWI offenders, but is not intended
for minor nuisance offenses and routine traffic
violations.” 77 Against concerns of racial profiling,
ICE representatives assured local officials, “This
program is designed to identify serious and violent
criminal alien violators for potential deportation.”78
Prince William County approved the 287(g)
program and appropriated an extra $1.4 million of
local tax revenue to fund it.79
But this allocation proved insufficient for two
reasons. First, deputized officers routinely arrested
and detained immigrants without suspicion of
a serious crime. Second, ICE failed to pick up
detainees within the seventy-two hour period it
had promised.80 As a result, the county spent $6.4
million for the first year of its 287(g) program, and
projected a cost of $26 million over five years.81 To
sustain the expense, the Board of Supervisors raised
property taxes by five percent and is contemplating
additional increases.82 Meanwhile, they slashed $3.1

287(g) Federal Budget
DHS Totals for
287(g)
Fiscal
287(g) actual State & Local Law
appropriated
Year
(in millions)
Enforcement
(in millions)
(in millions)
2006

5

2007

5.4

2008

5

17.2

78.5

2009

59

not yet known

100

50

29.4
46.4

Source: Congressional Research Service and Office of Management and Budget

20

million from the budget for installation of video
cameras in police cars.83 Police said they needed
the cameras to protect officers from increasing
accusations of racial profiling which accompanied
enforcement of the county’s 287(g) program. The
supervisors also cut more than $1.2 million in
public safety needs like fire and rescue personnel,
and in related police, foster care and protective
services for the American children of deported
immigrants.
In a board meeting attended by more than one
hundred concerned citizens, a forty-five year
resident of the county charged that the local
immigration policies were “dividing neighbor
against neighbor. ... Even the children are
discriminating against one another in the school
system.” 84 Some immigrant families left the school
system altogether and sent their children to schools
in 287(g)-free towns.85
The cost of the 287(g) program to taxpayers is
difficult to estimate. At the state and local level,
each deputized agency commits to paying for
both personnel and civil incarceration, the length
of which depends on variables including ICE
action. Legal liability is another expense. Cost at
the federal level is also unclear. Congress gave ICE
a budget line for the 287(g) program for the first
time in 2006: $5 million to pay for ICE expenses
including supervisory personnel, training costs,
and technology.86 By statute, deputized agencies
cannot be federally reimbursed for personnel
or incarceration costs. The program is purely
voluntary. Yet rapid growth and consistent overspending of the program budget raise red flags.
In 2006 and 2007 Congress appropriated
approximately $5 million for each year of the
program. Yet ICE spent a total of $50 million
over the two-year period. ICE spent $17.2 million
in fiscal year 2008—a strange drop given that
2008 saw more MOAs than in previous years. For
fiscal year 2009, Congress flooded ICE with cash
for 287(g), growing the program budget to $59
million. The Department of Homeland Security has
other programs that support the local enforcement
of immigration laws. But for the first time 287(g)
is funded to be the premiere devolution program,

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

receiving over half of total Homeland Security
funds for state and local law enforcement.
Ironically, the 287(g) program is normalizing
the claims of the inherent authority doctrine.
The very existence of a federal statute that
enumerates and limits the powers of an
immigration officer contradicts the inherent
authority doctrine. Any public servant—federal,
state, or local—must obtain training and
permission to enforce civil immigration laws.87 Yet
the executive exercise of 287(g) normalizes the idea
that local law enforcement has inherent authority
after all and opens the doors to devolution
programs with even fewer controls.
Consider Florida where the nation’s first 287(g)
agreement was signed in 2002. The MOA between
the Florida State Police and federal immigration
authorities was largely a symbolic act of patriotism.
In the wake of a national tragedy, a state agency
was committing its own resources to helping
overstretched feds protect the homeland.
The next agency in the state to join the ICE
program was the Collier County Sheriff’s Office.
From 2000 to 2006 Collier County saw a fortyfour percent drop in its property crime rate and
a twenty percent drop in violent crimes. But the
Latino population had grown by sixty-one percent
in that same period. In June 2007, at a local council
meeting, Collier County Sheriff Don Hunter
itemized the crises of immigrant “gang members,”
students and hospital patients asserting, “MS-13
[gang] is hiding out in our agricultural populations.
They are trying to blend into the regular population
… There are thousands of students in our schools
that do not speak English. The vast majority of
them are illegal. There are people clogging up our
emergency rooms.”88
In his campaign for the 287(g) program, Hunter
shifted his language saying, “My goal would be
to severely restrict the number of illegal foreign
criminal aliens within Collier County who
repeatedly violate law, who repeatedly victimize
persons living in Collier County.”89 ICE granted
Collier County a 287(g) MOA to deputize twenty-

four officers in the jails and on the streets. The
chief of county corrections Scott Salley said, “We
feel that the ICE agents are going to be a strong
partner, but they can’t do it alone … The short
term is to help us out here [sic], but they have other
obligations. We will, in time, be able to perform
these functions with our staff.”90
The idea that civil immigration enforcement is by
default a local duty has caught on in areas where
287(g) has entered. Charu al-Sahli, an advocate
with the Florida Immigration Action Center and an
early critic of the program, was surprised to watch
the swift spillover effect of the 287(g) program:
“Some sheriffs’ offices are vying for 287(g) powers.
Others are doing immigration arrests without
having an agreement. The thesis that ICE just wants
to go informal seems to be true.” She recalls the
difficulties in even talking with Hunter and other
sheriffs in the Florida panhandle about issues raised
by 287(g). “Sheriffs are far more political than
police chiefs. We are more likely to get meetings
with police chiefs, who are more sympathetic to
community policing concerns.”91 Maria Rodriguez
echoes the frustration: “Our members want to
work with—not against—law enforcement. But
they can’t get face time. How do you promote civic
participation when sheriffs shut the door on you?”92
Rodriguez is the director of the Florida Immigrant
Coalition, a statewide membership organization for
immigrant community groups.
The greatest proof of the 287(g) program’s slippery
slope may be recent legal opinions by the MiamiDade Police Department that reverse the city’s
position on local immigration enforcement.
In 2006, Miami’s police chief was one among
many representatives of global cities to speak out
against the local enforcement of civil immigration
violations.93 New York City Police Commissioner
Ray Kelly said, “We want recent immigrants in
particular to know that the Police Department
is not an immigration agency.”94 One year later,
Miami-Dade issued two legal opinions asserting
local authority to enforce immigration laws.95
While recognizing that police cannot perform
a civil immigration arrest or detention without
special permission, the agency asserted that its

21

CHAPTER I. 287(g): A Project in Devolution

officers could arrest an undocumented immigrant
as a suspect for the federal misdemeanor of
improper entry.96 The memos explained that
Miami-Dade police do not uniformly enforce
immigration law for lack of resources, not for
lack of legal authority.97 In response to the gray
areas surrounding the legal claim, the first memo
compared border crossing to other federal felonies
when it reasoned: “Although the Supreme Court
has not ruled on this matter, there are persuasive
court decisions which suggest that state or local
police may already have the authority to arrest for
violations of federal law.”98
The evolution of the 287(g) program begs two
fundamental questions. First, are civil immigration
and criminal law enforcement compatible
enterprises for criminal law enforcement agencies?
Second, is ICE competent to supervise devolution
programs? The first question relates in part to the
murkiness produced when civil and criminal laws
intersect. It may not be wise to allow the executive
branch—whose powers grow instantaneously
through 287(g)—to blaze trails by practice
through the dense thicket of social, legal and
financial issues surrounding the devolution of
immigration enforcement. The second challenges
the organizational capacity of the federal agency
charged with leading the devolution campaign.
No case study better answers both questions than
Arizona. In 2005 the border state became the ICE
poster child for interior immigration enforcement.
Arizona has the largest 287(g) program in the
country. Starting in the state prison system, ICE
moved to introduce civil immigration enforcement
into street operations. The 287(g) program—
along with subsequent state and local “criminal
illegal alien” campaigns—has made Arizona the
nation’s leading laboratory in local immigration
enforcement. The results are striking. As one
Arizona criminologist put it, “If you want to see
how 287(g) does not work like a laser, come to
Arizona.”99

22

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

CHAPTER II:
the arizona
laboratory

Introduction
In the Grand Canyon State, an unnatural landmark
disrupts the scenery: prisons. While the United
States leads the world in incarceration rates,
Arizona is the prison capital of the American West.1
The state devotes one tenth of its general fund
expenditures to Corrections—among the highest
proportions in the nation.2 Currently 35,000
people are in state custody. If trends continue, that
number will spiral upwards by fifty-two percent
over the next decade.
With 6.1 million residents, Arizona’s statewide
population is also spiraling upwards, growing
three times faster than the national average.3
Notably, Latino population growth has outpaced
that of Whites.4 Twenty-nine percent of residents
are Latino—nearly double the national average.
The state’s percentage of foreign-born residents
is comparable to the rest of the US. Yet some
attribute the racial demographic shift to a spike in
illegal immigration.
Sheriff Joseph Arpaio of Maricopa County, or
Sheriff Joe, as Arizonans call him, has brought
immigrants into the criminal justice system.
He spent decades building his reputation as a
maverick lawman. In January 2007 the Bureau of
Immigration and Customs Enforcement (ICE)
granted him the largest and broadest 287(g)
program in the country. Sheriff Joe quickly
deployed the new civil powers to conduct random
street raids and lock up arrestees without probable
cause. He spoke candidly about the added value
of these powers: “When we stop a car for probable
cause, we take the other passengers too.”5 While
fans marveled at the Sheriff’s unfettered force,
critics sued him for rampant racial profiling. In the
court of public opinion, Arpaio both enjoys high

approval ratings and suffers routine indictments for
civil rights abuses in the New York Times.
But as is the case with many epic stories, the hero
is not the driving character, nor is his crusade the
central battle. The Wall Street Journal has called
Arizona a “laboratory for new ways to crack down
on illegal immigrants.”6 This characterization keys
into a basic fact: Arizona is the nation’s leader in
locally driven immigration enforcement. The mix
of political leadership that has created the Arizona
laboratory is not especially unique. As every branch
of government has engineered different responses
to unbridled prison expansion, rapid population
shifts, and xenophobic fury over foreigners of color,
the federal immigration mandate has devolved into
state and local hands. The recurring element in
each Arizona laboratory experiment is the “criminal
illegal alien.” With the sum of the work greater
than the individual parts, the case of Arizona
provides a window for viewing how a federal
agency can traverse the politics of local democracy
and, in the process, poison the local criminal justice
system.
In 2005 former governor and moderate Democrat
Janet Napolitano worked to shift the focus of antiimmigrant zeal from public assistance to public
safety. While nativists complained that immigrants
drained the public coffers, Napolitano redirected
her attention to a purportedly emerging crisis of
undocumented felons in the state prison system.
To address the problem, the governor brokered
Arizona’s initial 287(g) agreement. The first of its
kind in the country, the contract deputized state
prison guards to perform civil deportation duties.
The governor later signed a second agreement with
ICE to deputize street and highway police in the
state’s Department of Public Safety.
The 287(g) program did not assuage antiimmigrant zeal as much as it conceded a
new target, and helped to spark other novel
public policy solutions. In March 2005 the
State Legislature passed the first state-level
human trafficking law in the country, making
“the smuggling of human beings for profit or
commercial purpose” a felony.7 Within months,
Maricopa County attorney Andrew Thomas, a

MICE
tttr&IRAHGIES

23

CHAPTER II. The Arizona Laboratory

conservative prosecutor known for taking test cases,
issued a legal opinion charging that the victims
of trafficking were conspirators in the crime. His
conspiracy theory campaign rounded up thousands
of undocumented immigrants, secured their
conviction in state courts, and effectively widened
the pool of “criminal illegal aliens.”
State Representative Russell Pearce of Mesa,
Arizona, an ideological politician and savvy
bureaucrat, created a new sanction for immigrants
in the criminal courts: pretrial incarceration. In
November 2006 he bypassed his colleagues and
successfully entreated voters to pass Proposition
100. This amendment to the state Constitution
overwhelmed the bail system by stripping
undocumented immigrants of the right to bail.
Arizona’s criminal process morphed into a hybrid
immigration proceeding. In the face of two
masters, judicial officers who were neutral arbiters
on criminal charges became prosecutors on civil
immigration charges.
Sheriff Joe, a glutton for media attention,
capitalized on each moment. He offered an
endless supply of cheap jail beds to aid Governor
Napolitano’s crackdown. Arpaio formed a
special unit to take Thomas’ legal maneuvers to
the streets for a test drive. He partnered with
Pearce to secure state funding for his local antiimmigration campaigns. He asked ICE for civil
immigration powers that blurred the limits of his
executive power and effectively took the handcuffs
off his police force. Armed with legal, fiscal, and
communications resources, Arpaio’s “criminal illegal
alien” crackdown spilled over rapidly, even drawing
a few American citizens into the crosshairs. In just
two years, racial profiling and state-sponsored terror
became the norm in Maricopa County.
The role of ICE in producing the Arizona
laboratory remains under-scrutinized. Ironically,
Arizona deepened its relationship with ICE through
the 287(g) program only because the federal agency
was failing in its own duty to deport immigrants
in the state corrections system. But once the door
was opened, ICE leadership showed extraordinary
opportunism by using Arizona’s local and state
resources to build the federal agency’s detention

24

and deportation capacity. ICE granted Maricopa
County the most robust 287(g) contract in the
country. When local politicians expressed concern
that Sheriff Joe was fueling a nativist campaign,
ICE spokespeople defended his use of the 287(g)
program.
ICE’s failure to properly supervise its 287(g)
agreements is consistent with the agency’s inability
to properly manage its federal detention system.8
The Maricopa County 287(g) program remains
in full effect. Not only has it served as a national
model, it also acts as a gateway drug, pulling law
enforcement agencies that previously resisted
deportation work into the fold.
Arizona faces a $2 billion budget deficit—among
the largest for any state in the nation.9 The cost
of immigration enforcement campaigns to state
and local taxpayers, while yet to be itemized, is
undoubtedly sizeable. Perhaps the greatest casualty
of immigration enforcement in Arizona is local
democracy. In this moment of global economic
crisis, financial and civil rights concerns beg the
question: Who is investigating the role of ICE in
the Arizona laboratory?
Immigration is a strategic site for the white
supremacist movement in Arizona.
Russell Pearce is the godfather of Arizona’s
immigration experiments. He represents Mesa in
the Arizona House of Representatives. He stands in
stark contrast to the breed of politician who incites
anti-immigrant sentiment for political popularity.
Pearce is a devout Mormon, but when friends
and foes alike call him a “True Believer,” they are
referring to his belief in law and order.10 He chairs
the Appropriations Committee, a powerful body
that controls state revenue expenditures.
Pearce’s twenty-three years of service as a sheriff’s
deputy in Maricopa County took a physical toll.
A teenager who may have been Mexican shot off
the third finger on Pearce’s right hand when he was
trying to make an arrest for underage drinking.11
Ironically, years later, Pearce’s tenure heading the
Arizona Motor Vehicle Division ended in disgrace
after his son Justin, a low-level employee at the

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Division, was arrested for issuing fake licenses to
underage residents.12
Although he publicly distances himself from
the white supremacy movement in Arizona,
Pearce’s base includes white supremacists.13 His
documented relations include the White Knights
of America, a white nationalist organization
that features calls for “national socialism” on
its website.14 In June 2007 he spoke at a White
Knights rally in Phoenix along with J.T. Ready, a
neo-Nazi who has served as a Republican precinct
committeeman in Mesa for several years.15
Through his anti-immigration crusades, Pearce’s
extremist views on race are becoming normalized.
He has publicly advocated the revival of “Operation
Wetback,” a 1950s program that deported more
than 130,000 Mexicans largely on the basis of their
skin color—among them an unknown number of
US citizens and Native Americans.16 But Pearce’s
long-term vision does not cloud his short-term
traction. He was the original drafter of Proposition
200, a sweeping initiative approved in November
2004 by fifty-six percent of all state voters,
including forty-seven percent of Hispanic voters.
The initiative required that people who register to
vote or apply for public benefits prove that they
are US citizens, even when citizenship is not a
requirement for the benefit sought. It also moved
to turn state employees into immigration police
by requiring them to report suspected “illegal
immigrants” to the feds. Public servants failing
to do so could be slapped with lawsuits, criminal
charges, and penalties including a fine of $750 or a
jail term of four months.17
Prop 200 had political and financial backing from
hate groups,18 including a half million dollars from
the Federation for American Immigration Reform
(FAIR).19 FAIR founder John Tanton has urged
vigilance in the face of an increasingly multicultural
society, “As whites see their power and control over
their lives declining, will they simply go quietly
into the night? Or will there be an explosion?”20
FAIR president Dan Stein posed a rhetorical
question, “Should we be subsidizing people with
low IQs to have as many children as possible?”

Tucson resident Jen Allen said, “Arizona has been
the incubator for many immigration policies passed
through the ballot or the legislature. We started the
sad trend that caught on nationwide years later.”
Allen is the director of the Border Action Network,
which has monitored state-level immigration bills
since 2006. Prop 200 was one battle in an ongoing
war between Pearce and Napolitano, who had a
history of vetoing bills he supported. A year earlier
the governor vetoed a voter-identification bill
passed by the legislature.21 Prop 200 resuscitated
and expanded that measure.
An outspoken critic at public rallies, Napolitano
was among Prop 200’s staunchest opponents. She
successfully mitigated the initiative’s intended
impact by challenging it procedurally. Almost
immediately after voters approved Prop 200,
proponents charged that the governor was dragging
her feet to avoid implementation. Arizona Attorney
General Terry Goddard had quickly issued an
opinion that interpreted the measure narrowly to
apply only to a handful of state benefits (e.g., rental
and housing assistance) under the state Welfare
Code, and not to broader state programs such
as health insurance for the poor. By early 2008,
Prop 200 proponents were still battling in court to
force state agencies to demand legal proof of state
residency prior to benefit approval. Pearce claimed
that the governor’s narrow implementation of the
initiative amounted to a “back-door veto.”22

Governor Napolitano triangulated the
anti-immigrant agenda
Governor Napolitano is considered one of the
nation’s most astute public executives. Appointed
by former President Bill Clinton as the US
Attorney for Arizona, she then successfully ran for
Arizona Attorney General in 1998 and swept into
the governor’s office in 2003. Time Magazine has
named her one of “America’s 5 Best Governors.”23
She takes pride in her political profile stating,
“I’m hard to pigeonhole. I’m very pro-choice, but
I’m also a prosecutor.”24 In 2009 President Barack
Obama appointed her Secretary of the Department
of Homeland Security—an agency she sharply
criticized while a governor.

25

CHAPTER II. The Arizona Laboratory

Triangulation has been the trademark of her
leadership on immigration issues.25 Principled
opposition to the extreme measures in Prop
200 cost Napolitano precious political capital.
She recovered by finding common ground with
opponents while blunting the sharpest edges
of their agenda. Border Patrol “crack down”
operations in California and Texas had pushed
migrants to enter through Arizona. Napolitano
entreated ICE and the Border Patrol to conduct
joint operations with Arizona’s Department of
Public Safety to catch human traffickers at the
border, as well as in the state capital. When neither
agency expressed interest, she became America’s
first governor to call a state of emergency related to
border crossings. In a harshly worded letter to then
Homeland Security Secretary Michael Chertoff, she
charged, “This bewildering resistance is a further
example of ICE’s inattention to Arizona.”26
Prior to Napolitano’s charge, the short history
between ICE and the state of Arizona had been
rocky. ICE offices around the country are each
headed by a Special Agent in Charge (SAC).
Phoenix ICE went through six SACs in its first
two years and could not retain stable leadership.27
The very first SAC shot himself in the head while
driving on the interstate to a press conference.
Early in 2005 officials at the Arizona Department
of Corrections complained that they could not get
ICE to move 544 immigrants who had completed
their criminal sentence from the state prison
system into the civil deportation system.28 The
administration charged that it cost $223,000 daily
to incarcerate undocumented immigrants.29
Governor Napolitano brokered the initial
287(g) agreement in Arizona, deepening the
state’s relationship with ICE.
Napolitano circumvented Phoenix ICE and wrote
directly with Secretary Chertoff in July 2005,
arguing for use of 287(g) powers in Arizona to
detain traffic violators. “Local law enforcement
officers often come into contact with large numbers
of UDAs [undocumented aliens] during routine
traffic or other law enforcement activities.”30
She forged ahead to convene an Immigration

26

Enforcement Summit, to which Homeland
Security sent representatives.31 The summit was
a closed-door, invitation-only event for more
than one hundred law enforcement officials from
federal, state, and local levels of government.
The governor, who was vacationing in Russia,
did not attend. She entrusted her policy tsars to
report the recommendations. At the conference, a
287(g) agreement between ICE and the Alabama
Department of Public Safety was touted as a
successful model.32
Tucson Police Chief Richard Miranda, a summit
participant, was against the move to deputize.
“It’s very important for the federal agencies
to understand that when they come into our
communities, they have a significant impact on
the relationships we have been building with our
Hispanic communities.”33 When critics charged
that Napolitano was pandering to a xenophobic
agenda, her director of public safety wrote in an op
ed in The Arizona Republic, “Let me be clear: We
will not indiscriminately stop people based on skin
color. We will not be roaming neighborhoods or
going to job centers. We are not going to engage in
‘sweeps.’”34
The conference ended with plans to deputize two
state agencies to perform civil arrest and detention
duties: the Department of Corrections and the
Department of Public Safety. In September
2005 ICE signed a 287(g) Memorandum of
Agreement (MOA) with the Arizona Department
of Corrections. In the agency’s press release,
Corrections Director Dora Schriro announced,
“It is an excellent opportunity for Arizona to
partner with ICE and expedite the deportation of
undocumented aliens sooner, providing Arizona
taxpayers with welcome relief.”35
The MOA gave ten deputized corrections officers
the civil authority to issue an immigration warrant
(or “detainer”) for any prisoner suspected of being
a noncitizen—legal or undocumented. It was the
first time in the country that corrections officers
became deportation agents. After receiving ICE
training on immigration laws and procedures,
the deputized officers interview any foreign-born
prisoner to determine whether there is probable

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

cause for an immigration violation. Their duties
include fingerprinting; preparing documents to
begin deportation proceedings before the end of
their prison sentence; and preparing documents to
deport them.

serving half of the prison sentence. A noncitizen,
legal or undocumented, can gain release early by
signing up for deportation.40 Arizona prisoners are
undoubtedly eager to gain release from prison, even
if it means expulsion from the US.

Under the bundle of federal immigration reforms
passed in 1996, most felony convictions result in
mandatory deportation. One’s length of residency
in the US, number of American-born children, and
proof of rehabilitation are irrelevant. Yet the matter
is not always so straightforward. For example, an
immigrant may be a US citizen without knowing
it.36 If an immigrant has a well-documented
fear of persecution back home, it could lead to
a claim to remain in the United States under
the internationally-binding Convention Against
Torture.37 Also the interplay between state criminal
convictions and the federal grounds of deportability
is dynamic—whether a state criminal conviction
results in deportation shifts from one case to the
next.38

DOC officials touted the 287(g) program as a
money saver. By March 2007, Arizona taxpayers
had purportedly saved nearly $9 million by
accelerating ICE’s removal of eligible state
prisoners.41 Director Schriro added another benefit
to the list:

Director Schriro described the swift deportation
process in the state prisons stating, “They begin
deportation literally the first day that they are
admitted … We have individuals trained by
ICE who are bilingual. As part of the intake
process, they go through this ICE procedure.
Once [immigrants] are identified, their status
is ascertained … For many it’s resolved in a
mere matter of days.”39 Given its complexity,
US immigration law is likened to the tax code.
It appears that corrections officers deputized
under 287(g) play the role of prosecutor, taking
immigration status itself as conclusive proof of
deportability. Since they are civil cases, deportation
respondents are not assigned public defenders.
Few, if any, Arizona prisoners are in a position to
obtain a lawyer to raise claims such as derivative
citizenship or documented fear of persecution.
Without legal safeguards, there are many
disincentives to seek a court hearing to challenge
deportation. On the other hand, the state’s early
parole program provides one great incentive to
sign off on self-deportation. Under Arizona law, a
person convicted of low-level drug and property
crimes may qualify for release under parole after

From my perspective, forget about cost
savings for the moment. As an adminis­
trator of state prisons I need to know as
much as I possibly can about inmates as
individuals for the classification decisions
I make. If I don’t know that someone is
amenable to deportation, I might place
them in a custody level or assign them a
job that might increase the possibility of
escape. I think 287(g) is important for
the fundamental classification processes
we pursue.
The ICE fact sheet states that 287(g) participants
“ensure that criminal aliens incarcerated within
federal, state and local facilities are not released
into the community upon completion of their
sentences.”42 But in New York, which does not
have the 287(g) program, the same goal has been
accomplished without making corrections officers
perform civil deportation duties. New York
immigrant prisoners are identified for deportation
by ICE. The New York State Department of
Correctional Services maintains an “institutional
hearing program” staffed by ICE personnel in three
prisons. ICE trial attorneys prepare and prosecute
the resulting deportation cases; and immigration
judges, assigned by the Executive Office for
Immigration Review, hear and decide those cases.
Since 1995 prisoners convicted of non-violent
offenses have been eligible for early parole from
New York State prisons to their home countries.43
In March 2007 Arizona deputized seven more
officers to staff the first “ICE unit” within a state
prison—a trailer office set up with ICE technology
for 287g activities.44 The program was designed to

27

CHAPTER II. The Arizona Laboratory

reduce population pressures and save substantial
sums by seamlessly moving deportable prisoners
from state criminal custody into federal civil
custody. Schriro explained, “We provided staff. I
did a balancing act and decided for all the reasons
I mentioned, it was advantageous to us to provide
the resources that were necessary. It would be nice
if we were reimbursed for it.”
Rather than defuse the anti-immigrant
agenda, Napolitano shifted its focus.
The public target of Prop 200 was the immigrant
seeking either voting rights or welfare benefits.
Napolitano’s state level 287(g) program,
presumably targeting “criminal illegal aliens,”
shifted public outrage to a lower common
denominator. It was an ironic moment in partisan
history. Arizona Republican Senator John
McCain was gaining notoriety for championing
comprehensive immigration reform in Congress
by proposing increases in border and interior
enforcement while granting limited legalization.
Meanwhile Napolitano was perhaps the least
noticed Democrat to effectively institute interior
immigration enforcement by devolving deportation
duties from federal to local hands.
Napolitano’s move to deputize state corrections
officers as immigration enforcers encountered
no resistance. It did not, however, receive praise
either.45 To Representative Pearce, the state’s
first 287(g) agreement was a step backward.
“This question of inherent authority is crazy.
They’ve done several programs to incentivize local
enforcement. 287(g) is not needed. It is meant to
be a carrot, not a permission slip.”46 The few media
articles to document the program took no notice of
the legal significance in grafting civil enforcement
duties onto criminal justice process. They instead
assessed it as a political concession from the liberal
governor. The faint praise offered by rightwing
restrictionist Mark Krikorian, director of the
Center for Immigration Studies, was foretelling.
“This effort by the governor is not a bad idea, but it
shouldn’t be over-hyped … It’s one step in the right
direction, but only one step.”47

28

Napolitano’s chief of staff Dennis Burke promised
that more steps were in store. “Before the governor
opened up the dialogue with Secretary Chertoff,
the local feds were basically stonewalling the state.
The devil is in the details. We need to get the feds
to focus not only on the border but also the impact
of illegal immigration on metropolitan Phoenix.”48
Napolitano’s partnership with ICE did not change
the focus as much as expand it.

As the state’s top executive strategized
with the feds, the Arizona legislature
raised the ante
Nearly a century ago, Arizona passed a measure
that required employers to hire American citizens
rather than immigrants and punished violators
with jail time.49 Fearful of prosecution, a local
restaurant owner fired his Austrian cook. The cook
sued. The US Supreme Court ruled in the worker’s
favor, striking down the state law since it denied
noncitizens the equal protection guaranteed by the
Fourteenth Amendment. Also affirming principles
of preemption and the plenary power doctrine,
the Justices wrote, “[T]he authority to control
immigration—to admit or exclude aliens—is vested
solely in the Federal Government.”50
In 2005 Arizona flirted with the Constitution’s
limits once more when the legislature passed
the first state-level human trafficking law in the
country.51 It made “the smuggling of human
beings for profit or commercial purpose” a statelevel class four felony. The bill emulated and
contradicted the federal Trafficking Victims
Protection Act of 2000.52 The federal law not only
provided for prosecution of traffickers, but also
required the feds to secure appropriate services
for victims from social service agencies in the US,
as well as from counterparts in the victims’ home
countries. Arizona legislators brought in victims
to testify during their deliberations, however, the
state law they enacted glossed over the victims’
rights as well as international relations aspects of
human trafficking.53 It also failed to clearly define
“smuggling.” Coming one year before a nationwide
spike in state-level immigration legislation, Arizona

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

was blazing the trail in a movement to devolve
immigration controls.54

tool to sit and gather dust because of concerted
nonenforcement.”60

One county prosecutor creatively interpreted
the state statute to test executive power
against the intent of the legislature and the
checks of the judiciary.

Thomas eagerly politicized the trafficking law. At
the scene of a crime, it is often difficult to discern
who is the victim and who is the perpetrator.
Thomas developed a legal premise that made the
difference irrelevant by asserting that any individual
who pays a trafficker (or “coyote”) is a felony
conspirator in the trafficking act. He published his
conspiracy theory of immigrant smuggling in his
agency’s 2005 annual report.61 Subsequently, Sheriff
Joe formed an anti-smuggling unit to enforce the
novel theory.

A study by Arizona State University suggests that
local law enforcement executives receive little
guidance in how to prioritize immigration.55
They find themselves caught between conflicting
pressures from both the public and private sectors.
The new smuggling statute is a case in point.
When Phoenix police raided a “drophouse” where
traffickers store human cargo, they turned the
matter over to the feds, believing theirs was the
proper venue.56 The Arizona Department of Public
Safety deferred enforcement because the governor
was negotiating inter-agency partnerships with
Homeland Security. City police chiefs and county
sheriffs uniformly declined prosecution, with one
exception.
County Attorney Andrew Thomas is the chief
prosecutor of Maricopa County. The county
encompasses the state capital of Phoenix—a
bustling metropolis two hundred miles from the
US-Mexico border. Its current population of 3.1
million doubled over the past decade, making it the
nation’s fifth largest city.57
An elected leader, Thomas’ reputation rests on
his Harvard Law degree, his marriage to a Latina,
and his record of relentless prosecution. While
his jurisdiction’s murder rate remained constant,
Thomas doubled the number of capital punishment
cases and turned Maricopa County into the nation’s
new death penalty capital.58
Thomas ran for office in 2004 with a campaign
pledge to end illegal immigration. Soon after
Napolitano spearheaded the state-level 287(g)
program, he convened his own law enforcement
summit featuring nativist leadership from around
the country.59 He wrote to the governor, “Given
the state of emergency you have appropriately
called, the anti-coyote law is too important a

Maricopa’s conspiracy theorists highjacked
a constitutional battle with a political
campaign.
Arizona’s new law—the nation’s first state-level
international human trafficking law—was a
constitutional test in its own right. Any legal
practitioner could anticipate the judicial battle
ahead. Kyrsten Sinema, a Democratic representative
who had sponsored the legislation because she
believed it supported trafficking victims, was
indignant announcing, “As soon as it passed, it
was perverted by Thomas and Sheriff Joe.”62 The
conspiracy theory created an unanticipated antiimmigrant extreme.
All but two of the immigrants caught in the first
sweep had simply paid to be smuggled.63 Thomas
justified the public investment as collective
deterrence. “By targeting coyotes, we’ll be able
to have a multiplier effect on the crime rate.”64
He indicted them for the class four felony of
Conspiracy to Commit Human Smuggling. He
offered pleas to the lesser offense of Solicitation to
Commit Human Smuggling—a class five felony—
and probation with the condition that they agree
to leave the country. Nearly thirty took the plea
bargain in order to get out of jail. A dozen cases
were dismissed. The remaining defendants went to
trial before Arizona Superior Court Judge Thomas
O’Toole.
Judge O’Toole was an appointed judge on the verge
of retirement. He had little to lose professionally,

29

CHAPTER II. The Arizona Laboratory

but he nonetheless walked a tightrope. He, like
everyone else, knew that these were test cases in a
raging battle over the relationship of immigration
enforcement and the criminal justice system.
Attorneys appointed to represent the remaining
defendants moved to dismiss, arguing that the law
was preempted by the federal Constitution; that
the conspiracy theory of smuggling was legally
impossible and contradicted the state legislatures’
intent; and that the court lacked jurisdiction.65
The judge overruled the defense’s arguments.
His written decision reasoned that it was unclear
whether the Maricopa prosecutors were violating
the legislature’s intent. The burden was on
lawmakers, not his court, to clarify the purpose
of the bill. But O’Toole blunted the prosecution’s
victory when he divided the defendants into two
groups. He distinguished between those who
simply paid the smuggler, and those who paid
less by offering a service: “Just because you buy
a ticket on the Underground Railroad doesn’t
mean you operate it … but some guy who drives
the van to get a reduced rate can be convicted for
smuggling.”66 O’Toole also ruled against Thomas
on evidence. Before a jury could convict two men
who drove for a reduced fee, the judge terminated
proceedings because the prosecution failed to
present a body of evidence to suggest a crime
actually took place. He ruled that the defendants’
confessions alone could not prove guilt.
In July 2008 the Arizona Court of Appeals upheld
the conviction of Juan Barragan-Sierra, a mere
ticket holder on the “Underground Railroad,”
explaining that “the language of the conspiracy
and human smuggling statutes ... is clean and
unambiguous, and those statutes, read together,
plainly allow the person smuggled to be convicted
of conspiracy to commit human smuggling.”67
The conspiracy theory faced resistance from two
opposing quarters: an immigrant rights coalition
and ICE. Pro-America, a coalition formed in
response to immigration enforcement in Phoenix,
was the lead plaintiff in a lawsuit alleging that
Sheriff Joe and County Attorney Thomas violated
the US Constitution in a public relations stunt

30

to “garner local and national media attention and
further their political fortunes.”68
ICE passively resisted Sheriff Joe’s force. After
two men were acquitted of all conspiracy charges
in O’Toole’s court, Sheriff Joe attempted to have
them deported. ICE officers did not respond
positively. Flabbergasted, Sheriff Joe ordered his
own deputies to drive the immigrants beyond
Maricopa County’s jurisdiction and hand them over
to US Border Patrol agents. Representative Sinema,
who supported the trafficking statute, expressed
her horror: “That’s totally illegal. It’s kidnapping.”69
But Arpaio must have confused these acquitted
men with “criminal illegal aliens” when he reasoned
to the media, “When a guy gets convicted, I
have to do something with him … I made my
own personal decision. We transport them to the
border or to the Border Patrol.”70 In one month,
his deputies made nineteen trips to the border to
deport fifty-three immigrants.
The campaign left its targets with a lifelong
punishment.
Despite short-term resistance, the conspiracy theory
campaign aligned with the federal agency’s overall
mission. In 2003 the ICE Detention and Removal
Office issued a ten-year strategic plan entitled
Endgame; it included a goal of “eliminat[ing] the
backlog of fugitive aliens, focusing on criminals
first.”71 In the first months of the campaign,
approximately 250 people were arrested, the
majority of whom were undocumented immigrant
males in their twenties who planned to find work
in California.72 Most people charged under the
Arizona conspiracy theory quickly entered a plea
of guilty, thereby joining the ranks of the “criminal
illegal aliens” who are top-priority law enforcement
targets.
Federal immigration law stretches the concept of
felony disenfranchisement into the civil arena.
Virtually any crime, even a misdemeanor, bars
the undocumented person from gaining legal
status; and the lawful permanent resident from
naturalizing. Once a noncitizen has a criminal
record, the path to citizenship is permanently
blockaded. Thomas explained that his conspiracy

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

theory intentionally sought to capitalize on these
collateral effects:
The policy of requiring a felony con­
viction for any plea agreement is an
important one … That conviction will
harm their ability to immigrate here
legally and become a citizen … In a
sense, it is this office’s attempt to enforce
a no-amnesty program. It’s hard for
somebody with a felony conviction to
receive amnesty down the road for
citizenship purposes, so it serves that
additional purpose. All the better, as far
as I’m concerned.73
According to law enforcement databases, in the
first two years of the conspiracy theory campaign,
deputies arrested 578 immigrants using traffic
stops, most of them men in their twenties and
thirties from central Mexico.74 Of those, 498 faced
one charge: paying a smuggler. Deputies found
just one firearm and seven suspects with drugs,
five of whom possessed relatively small amounts of
marijuana. Incarceration of the human smuggling
defendants has cost Maricopa County over $5
million.75 The state smuggling law has yet to impact
the Arizona prison population; to date, no one has
received a prison sentence for human trafficking.

Another state immigration measure
spiked the county jail population
Throughout her tenure, Governor Napolitano
worked to stave off the most extreme antiimmigrant measures. In 2005 she vetoed a raft
of anti-immigrant bills passed by the legislature.
SB 1306 would have given explicit and direct
authorization to local law enforcement officers to
“investigate, apprehend, detain or remove aliens in
enforcement of United States immigration laws.”
SB 1118 would have implemented the voter ID
provisions in Prop 200. SB 1167 would have made
English the “official language” of the state. SB 1402
would have appropriated more than $700,000
to investigate fraudulent applications for driver
licenses. HB 2030 required applicants for state
benefits to provide proof of legal status. HB 2709
would have required the state to contract for a

private prison that would be constructed in Mexico
to hold Arizona prisoners with Mexican citizenship.
SB 1511 would have prohibited law enforcement
and other government agents from accepting
identification cards issued by foreign nations as
proof of identity.
Russell Pearce fumed at how effectively Napolitano
blunted his victories, charging that she was a
spectator to “the destruction of America and our
neighborhoods.”76 Pearce found himself locked
out of Napolitano’s invitation-only Immigration
Enforcement Summit when he arrived with a
gaggle of fellow legislators. He complained, “The
Governor vetoed a bill of mine that would have
made it clear that local law enforcement has the
authority to arrest illegal aliens. Then she calls a law
enforcement summit on the issue of how local law
enforcement can help. Wow what a day.”77
Putting his pen to paper once more, Pearce wrote
another state-level immigration bill. While the
human-trafficking statute defined a new category
of crime, Proposition 100 created a new pretrial
punishment for immigrants charged with crimes.
Pearce took Prop 100 straight to the voters in the
November 2006 elections who approved it by
seventy-eight percent.
Prop 100 added immigrants to the list of criminal
defendants who cannot apply for bail. The Arizona
Constitution designates that criminal defendants
facing certain charges, while innocent until proven
guilty, do not have the right to seek bail because
they are categorically a flight risk or threat to
society.78 Those charged for capital offenses were
stripped of bail when the Arizona Constitution
was first established. Arizona lawmakers later
added people charged with serious sex offenses;
those arrested while already out on bail for a prior
felony charge; and those deemed to pose a danger
to the community.79 Prop 100 amended the state
Constitution to create a new no-bail category:
For serious felony offenses as prescribed
by the legislature if the person charged
has entered or remained in the United
States illegally and if the proof is evident

31

CHAPTER II. The Arizona Laboratory

or the presumption great as to the
present charge.80
The term “serious felony” had no clear legal
meaning in Arizona statutes. Lawmakers promptly
amended the criminal code to define it as
Aggravated Driving Under the Influence, and any
felony in classes one through four—including
the charge of conspiracy to smuggle. In fact,
most Arizona felonies are classified in levels one
through four, including felony shoplifting, simple
drug possession cases, as well as most thefts and
forgeries.81
“Proof evident, or presumption great”82 is a
standard of evidence higher than probable cause
(typically required to arrest a suspect), but lower
than proof beyond a reasonable doubt (the standard
needed to convict). Pearce saw the legislated
parameters as a compromise. “We passed the
initiative at the ballot to ensure the handcuffs are
off law enforcement. My position is if you are
here illegally and jaywalking, you should not be
released.”83 He threatened to use his powers as
appropriations chair to withhold state revenue
if Governor Napolitano vetoed his bill. She
acquiesced.
Prop 100 set off chaos in the courts.
No data source indicates that immigrants commit
more crimes than citizens. In fact, the opposite
appears to be true.84 But the volume of arrestees
who are foreign-born exceeds that of prior nobail categories. Upon Prop 100’s implementation,
that volume overwhelmed the courts. Meanwhile
the law’s intent and implementation turned the
Maricopa County court into a battleground over
criminal procedure.
Within twenty-four hours of arrest, every
defendant receives a hearing before the Initial
Appearance Court, a subset of the Arizona
Superior Court. The court informs a defendant of
the charges against him or her, appoints counsel
if a defendant is indigent, and makes the initial
determination concerning conditions of release.85
No defense attorney is required to be present and
the proceedings do not yield an official record.

32

Historically, neither prosecutors nor defenders were
present at Initial Appearance hearings. Immigration
status was simply a factor to be considered in the
court’s assessment of flight risk and community
ties.86
Under Arizona law, any person faced with a denial
of bail under the Constitution is entitled to a
“Simpson Hearing.”87 In this full and adversarial
evidentiary hearing, the prosecution carries the
burden of convincing the court that the evidence
against the defendant rises to the level of “proof
evident, or presumption great.” The defendant is
represented by counsel and has the right to testify,
to cross-examine the state’s witnesses, and to
dispute the evidence presented.
Maricopa County Attorney Thomas began
assigning prosecutors to the Initial Appearance
Court to argue that immigrant defendants be
denied bail. But he took the position that court
officials, and not just local law enforcement, were
obligated to provide evidence about whether
a defendant lacked legal immigration status.88
Defense attorneys, on the other hand, charged that
Prop 100 turned the bail system into a regimen for
pretrial punishment. They raised issues about the
standard of evidence required to determine whether
a defendant had “entered or remained in the United
States illegally.”89 They charged that any inquiry by
court officials about legal status would violate both
the defendants’ right not to incriminate themselves,
and the separation of powers doctrine.
Court officials struggled to understand their
newfound situation. Sheila Madden, an Initial
Appearance Court commissioner, issued a
memo—approved by the Presiding Criminal Court
Judge—that discussed the burden of proof and
factors that should be considered by commissioners
when determining if defendants were non-bondable
under Proposition 100. Under her direction, the
manager of the Superior Court’s Pretrial Services
Agency instructed the pretrial staff who interview
defendants to determine bail suitability not to
ask citizenship questions due to concerns about
violating the Fifth Amendment protections against
self-incrimination.

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Commissioners were not familiar with federal
immigration law and remained puzzled over what
evidence would be sufficient to serve as a basis for
denying bail. A detainer placed by ICE was thought
to be insufficient because, as one court officer
noted, “Immigration holds get taken off and put
on all day long.”90 Neither police nor prosecutors
submitted sufficient evidence in Simpson hearings
regarding the immigration charge to meet the
standard of evidence. Therefore, the court set bail
for most immigrant defendants.
This situation erupted in a media circus when one
of the undocumented immigrants subject to Prop
100 was granted a $10,000 bail because prosecutors
failed to present sufficient evidence regarding his
immigration status. The immigrant defendant had
been released from criminal custody directly to
ICE officers who then deported him to Mexico.
The County Attorney’s Office failed to meet the
legal requirement to proceed with his preliminary
hearing by the end of the tenth day after arrest.
Eleven days later he returned to Maricopa County
and was arrested for the murder of his cousin.91
Whether the defendant had a $10,000 bond or was
held non-bondable, if the county attorney did not
proceed on the tenth day, the law required that the
defendant be released.
However, the County Attorney’s Office “spun”
its own failure to win in the media—claiming
that the “activist judiciary” had refused to hold
the defendant in jail without bond. Criticized for
not doing his job, Thomas turned the tables and
alleged that judges were to blame since ninety-four
percent of defendants subject to Prop 100 had been
given an opportunity to post bail. Ignoring the
fact that many did not possess the means to do so,
he charged, “The judiciary of Maricopa County is
openly defying the will of the people and creating
a crisis of public safety. It is only a matter of time
before illegal immigrants wrongly released by
these judicial officers commit additional crimes,
including violent crimes.”92 Pearce also blamed
the liberal bench.93 An Arizona Republic columnist
followed suit writing, “Judges who ignore no-bail
law may as well give you the finger.”94

Chief Justice Ruth McGregor of the Arizona
Supreme Court responded. In April 2007 she
issued an order outlining new Initial Appearance
procedures in Prop 100 cases.95 A full evidentiary
bail hearing should be held within twenty-four
hours if the court found probable cause to believe
that a defendant had committed a crime, and:
If the allegation involves A.R.S. § 133961.A.5, the court shall then determine
whether probable cause exists to believe
that the defendant entered or remained
in the US illegally and that the proof is
evident or the presumption great that the
defendant committed the charged serious
felony.96
The defendant would be represented by counsel and
could present evidence, testimony, and witnesses.
Any testimony presented by the defendant would
not be admissible on the issue of guilt at later
proceedings. At the hearing, the standard of
evidence would be “proof evident and presumption
great” for both of the issues at hand—commission
of the crime and immigration status.97
At the same time, Chief Justice McGregor rejected
Commissioner Madden’s concerns about selfincrimination, asserting that Pretrial Services
officers could inquire about the immigration
status of arrestees. But she contended that the
responsibility for providing factual information
to the court in cases affected by Prop 100 should
remain with law enforcement and prosecutors.
She ordered that the court form filled by police be
revised to capture immigration status information
for Prop 100 purposes. And she assured lawmakers
that her office would invest resources to train
judicial officers so that immigrants do not fall
through the cracks.98
McGregor’s order was rescinded just three months
later when the legislature passed an emergency
bill to “clarify” Prop 100.99 As drafted by Russell
Pearce, the proposition had been stunningly
inattentive to the impact of weaving immigration
law into criminal court proceedings. In the
aftermath, Pearce saw a window of opportunity
to codify the extremes. Skewing Thomas’ data
by claiming that all immigrant defendants who

33

CHAPTER II. The Arizona Laboratory

were granted bond actually gained release, Pearce
charged that Maricopa County judges had opened
the floodgates. “The courts were releasing 94.7%
of immigrants charged with serious crimes.”100 His
clarification bill lowered the evidentiary standard
for determining immigration status to probable
cause and required that the determination be made
at Initial Appearance. The bill set forth a menu
of different items of proof to be accepted by the
court, including an ICE hold, “an indication by
a law enforcement agency that a person is in the
United States illegally,” the defendant’s confession,
or court-collected information. When Governor
Napolitano signed the clarification bill, she
reprimanded the courts for seeking an evidentiary
standard higher than the policeman’s probable
cause.
Such a higher standard is inconsistent
with the intent of voters in enacting
Proposition 100, the burden of proof
required of prosecutors in federal cases,
and the position of the State Attorney
General … It is appropriate that our
standard of proof be consistent with
Arizona voter intent and federal law.101
The Chief Justice duly acquiesced. New court
rules formulated in the wake of the clarification
bill eliminated the requirement for an evidentiary
hearing within twenty-four hours. A determination
about bail eligibility would now be made at Initial
Appearance. An evidentiary hearing would only
be held later if “new evidence becomes available in
the case.”102 Meanwhile, legal challenges to Prop
100 and the procedures used to implement its
no-bail provisions were winding their way through
the Arizona courts. The Maricopa County public
defender brought suit on behalf of Jose Segura and
Francisco Medrano Tovar, two defendants who
had been refused bail.103 Defenders argued that in
requiring them to present “material new facts” in
order to be granted a full evidentiary hearing, the
court had deprived Segura and Tovar their right to
due process.
In April 2008 a three-judge panel of the Arizona
Court of Appeals held in favor of the plaintiffs on
this point: “Initial appearances serve the limited

34

function of providing some check on the ability of
the state to hold a defendant, but they continue
to be ill-suited to support conclusive findings
affecting a defendant’s liberty.” They concluded
that both Segura and Tovar were entitled to a full
evidentiary hearing.104 In September 2008, Chief
Justice McGregor amended court rules again, to
specify that where a motion for reexamination of
conditions of release “involves whether the person
shall be held without bail, the motion need not
allege new material facts.”105
The judiciary salvaged the bill from any
punitive intent.
In Hernandez v. Lynch, public defenders in
Maricopa County charged that the language in
Prop 100 was so broad that it would apply to legal
permanent residents and naturalized citizens if
they had initially entered the US without proper
documents.106 Ever ready to push the legal envelope
where immigrants are concerned, Andrew Thomas
agreed. Appearing to defend Prop 100 before the
Arizona Court of Appeals in May 2007, lawyers
from the Maricopa County Attorney’s Office
argued that applying Prop 100 to a naturalized
US citizen who had violated immigration laws
in the past would serve “legitimate governmental
interests.”107
Defense attorneys took Thomas’ rationale as clear
evidence that Prop 100 had a punitive intent
and was thereby unconstitutional. The Arizona
Court of Appeals sidestepped the constitutional
question by carving out an acceptable application.
While Prop 100 applied to undocumented
persons, it could not apply to naturalized citizens
or “green card” holders because that would be
punitive and unconstitutional. Maricopa County
Public Defender Tracy Friddle, who represented
defendants of various immigration statuses,
petitioned the Arizona Supreme Court:
Rather than scrutinizing the proposition
in light of this and other evidence of
punitive intent, the Court grafted
exceptions for “persons who enjoy lawful
residency status or citizenship at the time

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

they seek bail” in an attempt to rescue it
from unconstitutionality.108
The state’s highest court refused to hear the case.
Immigration rights advocates continue to battle
Prop 100 in the courts. A class action lawsuit filed
in United States District Court in April 2008
challenges the constitutionality of Prop 100, the
implementing statute, and the new court rules.
Lawyers for the plaintiffs charged that the law
serves no legitimate governmental interest and
requires the court to disregard whether pretrial
release is warranted under the circumstances of the
case:
For criminal defendants subject to the
Proposition 100 laws, judicial officers are
required to ignore a host of relevant facts,
such as longstanding, close family and
community ties, employment history,
history of appearances, severity of the
offense charged, and criminal history or
lack thereof. By way of example, under
the Proposition 100 laws, an individual
with no criminal history who is a longtime Arizona resident, employed, and the
parent of U.S.-citizen children can be the
subject of mandatory pretrial detention
though charged with a nonviolent
offense such as shoplifting or perjury,
while a repeat offender not subject to
Proposition 100 but charged with a far
more serious crime is given a bail hearing
and the possibility of release.109
Under Prop 100 and public pressure,
Arizona’s criminal process has morphed into
a hybrid immigration proceeding.
Before Prop 100, the Arizona Constitution denied
bail to high-risk defendants with categories that
implicated small numbers of people. But Prop 100
broke the system by overwhelming it with nearly
every immigrant arrested—including those charged
with the newly created self-smuggling crime. The
state’s immigration enforcement law may be the
only unfunded mandate that Pearce ever liked.
Pearce distrusted the state’s urban judiciary: “These
damn appointed judges won’t respect the law …
Elected judges in rural areas are good.”110 Prop

100 did not only tie the hands of judges, but
subverted their foundational mission to be the
neutral arbiter of justice. The bill overwhelmed the
court’s bail process. The criminal court has become
schizophrenic, legally speaking. For a criminal
charge, the judge treats the defendant as innocent
until proven guilty. But in a Prop 100 case, the
court acts as the arbiter of immigration status with
power to deny defendants’ fundamental liberty
interests by application of federal civil law.
Throughout the months of controversy over
implementation of Prop 100, open warfare had
erupted time and again between the Maricopa
County attorney and the Superior Court. Presiding
Judge Barbara Rodriguez Mundell charged that
Prop 100 was being used as a weapon in a political
attack on the court. Private attorney Dennis
Wilenchik, appointed by Andrew Thomas to act
as special counsel, filed motions to remove Judge
Timothy Ryan—then serving as the criminal court’s
Associate Presiding Judge—from all cases brought
by the prosecutor’s office because he had ruled
against prosecutors on cases of immigrants denied
bail under Prop 100.111 Commissioner Madden’s
application for appointment to a judgeship in the
Superior Court was vigorously opposed by Russell
Pearce and other conservative legislators. She
remains a commissioner.
The courtroom atmosphere changed radically.
Previously the Maricopa County Adult Probation
Department had reported the names of foreignborn probationers to ICE, but got no response
from the agency. To protect staff against charges of
negligence, Probation proactively hired the private
security firm Transunion to increase its capacity to
identify foreign-born people, as well as to dedicate
personnel to work more closely with ICE.112
One veteran Superior Court judge, more than
fatigued with Thomas’ theatrics, commented,
“Andrew Thomas prosecutes everything. He’s book
smart and common sense dumb. He’s got political
aspirations. He ran for attorney general and was
defeated. His reputation before winning County
Attorney was that he couldn’t hold a job.”113

35

CHAPTER II. The Arizona Laboratory

Arizona’s pretrial detention of immigrant
defendants mirrors ICE’s practice of civil
incarceration.
In 1996 mandatory detention became the norm
for immigrants facing the civil deportation
proceedings of the federal government. Congress
terminated the discretion of immigration judges
to grant bail to most respondents, thereby making
prosecutorial discretion the only form of release
from incarceration. From ICE’s birth in 2003 to
June 2005, the percentage of detention bed space
devoted to mandatory detainees increased from
sixty-three percent to eighty-seven percent. DHS’s
own Inspector General has expressed concern that
mandatory detention “limits ICE’s ability to detain
high risk/high priority aliens.” 114
Arizona’s no-bail rule for immigrants mirrors the
federal practice of relying on broad legal categories
to rationalize blanket detention. “Serious felony” is
a label that applies to a wide range of crimes, from
murder, to conspiracy, self-smuggling, and simple
possession of drugs.115 Yet because the label is so
powerfully normalized, the underlying charge is
concealed from public scrutiny. Maricopa County
Sheriff Joe Arpaio illustrated the point. In response
to charges that he is abusing his power in the
Maricopa conspiracy theory campaign, he retorted
with circular logic. “It’s a Class 4 felony. You can’t
even get out on bond, so it must be somewhat
serious.”116

ICE took the handcuffs off law
enforcement
Factually speaking, Russell Pearce’s laws and
Andrew Thomas’ tactics did not take the handcuffs
off law enforcement. ICE did. The federal agency
showed extraordinary opportunism when it went
to Maricopa County—ground zero in the Arizona
laboratory—to introduce the most powerful 287(g)
contract in the nation.
Given Sheriff Joe’s public record, ICE should have
been cautious. The Maricopa County Sheriff’s
Office use of criminal law to stop suspected
immigrants in random traffic stops was already
documented. Unlike his ex-chief deputy Russell

36

Pearce, the “True Believer,” Sheriff Joe issues press
releases to announce his every move. He was
already the target of both jail lawsuits and media
criticism for racial profiling in the conspiracy
theory arrests.
His tactics had made the local ICE office uneasy, as
evidenced by their initial unwillingness to deport
his conspiracy theory arrestees. The sheriff remains
angry about this resistance. “I had big problems
with ICE prior to the new agent in charge. I had
to put aliens in my vehicles and I had to take them
down to the border.”117 But at the federal level, ICE
decided to replace its unwilling local leadership.
The experiment to merge civil and criminal power
in Arizona continued with many variables, and no
apparent controls.
Yet in other respects, Sheriff Joe was an ideal
partner. He was politically popular and resourceful.
His autobiography is entitled America’s Toughest
Sheriff. He believes that limits to police power
are handcuffs on justice, and he has built an
international profile by testing these limits.
Opting out of the county’s affordable offices, he
leased luxury space in the Wells Fargo high rise
in Downtown Phoenix. At the same time, he
established a “Tent City Jail,” warehousing 10,000
detainees (including youth) in tents in the blazing
desert sun. He started the first women’s chain gang
in the world. He dyed male detainees’ boxer shorts
pink in a grandstanding show of control through
emasculation. He replaced three meals a day
with two meals featuring oxidized green bologna
sandwiches—for punitive, rather than cost-saving,
reasons. All of the detainees under his control are
either pretrial defendants or people convicted of
offenses that carry sentences of less than one year.118
Roberto Reveles of Somos America, an outspoken
critic of Maricopa’s immigrant raids, observed:
“There was not much public outrage when Sheriff
Arpaio started the Tent City and the chain gangs.
People talked about it like a fraternity prank.”119
Deaths turned prank into tragedy. In one case,
an African-American man who was legally blind
and mentally disabled was arrested for shoplifting
dish towels.120 He was sent to Arpaio’s Tent City,
against the jail doctor’s own written warning that

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

he was too vulnerable to survive there. Within
days, a corrections officer handcuffed and beat
the detainee severely. He was then placed in
solitary confinement, denied any medication for
his preexisting condition or his new wounds,
and offered food just twice in six days. His life
ended, the MCSO reported, when he “fell out
of his bed” and broke his neck. His bed was four
feet off the ground. Examiners found that the
deceased detainee also had ruptured intestines,
broken toes, and severe internal injuries. After
allegedly tampering with video evidence, Sheriff
Joe settled a lawsuit for $2 million with the family
of the deceased prisoner. In fact, in the last decade
Maricopa County taxpayers have paid over $43
million in jail death and abuse suits against him,
and another $1 million in consulting fees to
correctional consultants whose advice he has yet to
pay heed.
Neither monetary nor human loss has deterred
the state’s increasingly boundless capacity for
incarceration. For the governor and the feds,
Maricopa jails have been a resource. During
Napolitano’s negotiations for state-level 287(g)
power, she wrote to Homeland Security Secretary
Chertoff, “Maricopa County Sheriff Joe Arpaio
has agreed to assist in providing the bed space
needed to house individuals detained by this
squad.” Sheriff Arpaio, who did not attend her law
enforcement summit, pledged limitless support
for the pilot project: “If I have to set up tents from

here to Mexico, I’ll do it … The important thing is
to get these people off the streets.”121
ICE gave Sheriff Joe the largest and most
comprehensive 287(g) contract in the nation.
This was not the first time 287(g) arose as an
option for the county. In 2001 the police chief
of Mesa, Pearce’s home city, considered joining
the federal program. But he backed away, his
spokesman explained, because “he thought there
was a program already in place … But there isn’t,
so he’s abandoning the idea to deputize officers. It
won’t be an issue again.”122
In January 2007 the Maricopa County Board of
Supervisors approved a partnership between the
Maricopa County Sheriff’s Office and ICE. One
month later, ICE added 160 Maricopa officers to
the 200 officers already deputized nationwide.123
It was the first time that ICE gave local law
enforcement officers both the power to arrest on
the streets and to issue detainers in jail.124 Although
this was meant to be a groundbreaking project,
the MOA was issued for an indefinite period
of time. The ICE press release promised that
the new powers would finally enable officers to
“complete the processing of any criminal aliens and
prepare the documentation to place those aliens
in deportation proceedings.” The Special Agent in
Charge for Arizona promised the powers would
be used to “combat the violence and crime that go
hand in hand with illegal immigration.”125

Maricopa County—Sheriff Arpaio marches immigrant arrestees into Tent City, a jail notorious for death and abuse. Photo by Carlos D. Garcia

37

CHAPTER II. The Arizona Laboratory

A basic examination of the MOA shows a
discrepancy between the contract and the media
message. The deputized officer has the power to
interrogate, arrest without warrant, and detain and
transport “any alien or person believed to be an
alien.” This includes legal residents and makes no
requirement of criminal suspicion or charge.
The MOA explicitly outlines that Maricopa
County pays all costs and may even donate office
space to ICE. To receive any federal funding, the
locality must apply separately for an immigration
detention contract that provides reimbursement
for civil incarceration.126 In cases where the arrestee
is charged criminally, ICE does not fund pretrial
detention or the criminal sentence itself.
The MOA is also elusive about indemnification.
“[Deputized officers] will enjoy the same defenses
and immunities available to ICE officers from the
personal liability arising from tort lawsuits based on
actions conducted in compliance with this MOA …
ICE will not be liable for defending or indemnifying
acts of intentional misconduct on the part of
participating LEA personnel” [Emphasis added].127
But what is “misconduct”? While the ICE fact sheet
guarantees that the 287(g) power is not meant
for raids or random traffic stops, these functions
may not technically be a violation of the Maricopa
County MOA.
On accountability, the language is even less clear.
The MOA names ICE as the project manager:
The ICE supervisory officer, or
designated team leader, will evaluate the
activities of all personnel certified under
this MOA … Participating LEA
personnel are not authorized to perform
immigration officer functions, except
when working under the supervision of
an ICE officer. Participating LEA
personnel shall give timely notice to the
ICE supervisory officer within 24 hours
of any detainer issues under the
authorities set forth in the MOA.128
The consequences of poor performance and the
structure of accountability remain unwritten. MOA
does not specify what misconduct will result in

38

contract termination. It provides no clear controls.
If a conflict arises, two ICE employees (the Special
Agent in Charge and the Field Office Director) and
the Sheriff “shall attempt to resolve the conflict.”
With support from activists above and below,
Sheriff Arpaio deployed 287(g) powers
to conduct raids that, according to ICE
literature, violated the program’s intent.
In 2005 the Phoenix Police Department used
trespassing and traffic rules to regulate day laborers.
But diplomatic negotiations between city officials
and immigrant communities, as well as the creation
of a day labor center, led police to end their public
patrol.129 In 2006, however, some Phoenix officers
returned to policing day laborers, this time as
private security guards for a local business. Pruitt’s
Home Furnishings is located in East Phoenix—an
overlapping jurisdiction for the Maricopa County
Sheriff and the Phoenix Police Department. The
store neighbors a Home Depot where immigrants
searching for work congregate, waiting for business
owners to hire them for short-term projects. Pruitt’s
owners hired off-duty Phoenix police, presumably
to patrol the front of the store as day laborers
passed by.
Pruitt’s private police force incited controversy
when immigrant proponents charged, the off-duty
officers used skin color, language, and accent as
the sole measures to stop and arrest community
members.130 American Freedom Riders, an antiimmigrant motorcyclist organization, brought
in leather-clad protesters shouting obscenities
at immigrants congregated in front of the
store.131 Maricopa sheriff’s deputies soon began
moonlighting at Pruitt too. Frustrated immigrant
advocates threatened to orchestrate a boycott of
the store. Pruitt’s owners yielded.132 According to
organizer Salvador Reza, “The owners wanted our
money more than they hated our skin. We had an
unspoken agreement to stop using off-duty officers
sometime around the Christmas holidays.”133
But the ceasefire never materialized, thanks to
agitation by a Washington-based organization.
Judicial Watch is a fifteen-year-old think tank that
describes itself as “a conservative, non-partisan

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

American educational foundation that promotes
transparency, accountability and integrity in
government, politics and the law.”134 Funded by
prominent critics of Bill Clinton, including more
than $7 million from conservative billionaire
Richard Mellon Scaife, the group is best known
for filing a raft of lawsuits against members of the
Clinton administration.
In October 2007 Judicial Watch filed a complaint
with the Maricopa County Sheriff’s Office on
behalf of “frustrated Phoenix business owners,
organized as the ‘36th and Thomas Coalition’”—
the location of Pruitt Furniture.135 The complaint
indicted the Phoenix Police and Mayor Phil
Gordon for preventing off-duty officers from
arresting immigrants. Asserting the widely refuted
inherent authority doctrine, Judicial Watch wrote,
“Every local police officer is empowered to uphold
the rule of law and ought to cooperate with federal
officials on immigration matters.”136
On-duty officers, deputized by ICE and paid for
by the public dime, replaced the private security
force. They claimed full legal authority under civil
immigration law to conduct sweeps. They brought
along volunteers from the Sheriff’s “posse”—a wing
of the office that enables community members
to support the deputies. It includes outspoken
members of groups including FAIR and the
American Freedom Riders. The same activists
who months before were hurling insults at the
immigrants standing by Pruitt could today—as
volunteers of a force that was volunteering for
ICE—assist with civil immigration arrests.137
In July 2008 the Phoenix newspaper East Valley
Tribune released a multi-media expose that
unearthed key details.138 Government reports
indicate that the first 287(g) sweep occurred against
day laborers, using one of the human smuggling
teams created during the conspiracy theory
campaign. The reports that deputies sent to ICE,
in accordance with the MOA, consistently lacked
any probable cause ground for the arrests or simply
stated that the arrests occurred in response to
business owners’ complaints. It remains unknown
how many day laborers were taken.

The Maricopa units also used the 287(g) powers to
enhance their anti-smuggling operations. By June
2008, Sheriff Joe announced his 1,000th arrest on
state smuggling charges. Every arrestee was either
driving or riding in a vehicle. No human trafficking
bosses were captured. When asked to report a
reason for stopping a vehicle, arresting officers often
strained to remember what the probable cause may
have been. ICE captured the information about day
laborer and traffic arrests, but did nothing to stop
the actions.
The immigration raids have divided Arizona
internally, and polarized the state from the rest of
the nation. While the United States elected the
first African-American president in its history in
November 2008, Sheriff Joe easily won re-election
to his fifth term in office with the support of over
fifty-five percent of Maricopa County voters.139 He
remains a celebrity with a popular mandate. Few
politicians risk challenging him. Reza, perhaps his
most outspoken critic, described the intensification
of the sheriff’s tactics: “Now he’s going to Mesa, he’s
going after corn vendors with M-16s. Whenever
we did a demonstration, he would start arresting
people on the way there. Sheriff’s officers with ski
masks, assault rifles.”140
A recent policy report published by the conservative
Goldwater Institute is sharply critical of Arpaio’s
diversion of law enforcement resources to “highprofile, extremely expensive, yet low-yielding
immigration sweeps.”141 Sheriffs patrol deputies
stop cars for such minor traffic violations as burned
out license-plate lights and failure to use proper
turn signals, while arrest rates for criminal offences
plummet and response times to citizens’ 911 calls
increase. The report details the difficulties that
arise when Arpaio’s “saturation patrol sweeps” are
conducted in communities that already have their
own police departments:
Far from the careful coordination that
might reasonably be expected in such
large-scale law-enforcement operations in
jurisdictions with police departments—a
hallmark of MCSO before Arpaio—the
sweeps often have taken place with little
warning and virtually no coordination.

39

CHAPTER II. The Arizona Laboratory

As Arpaio put it, “I’m the sheriff, and I
don’t need to be invited to Mesa. I can go
in anytime I want.” The sweeps involve
not only large numbers of deputies but
armed posse members, facing scores of
impassioned demonstrators who either
favor or oppose the sweeps. Instead of
aligning their operations, the police
departments in the targeted jurisdictions
have to call out large numbers of their
own officers—diverting them from other
assignments and/or paying overtime—to
maintain order. Characterizing the
sweeps as “a circus,” Mesa Police Depart­
ment Sergeant Fabian Cota charges that
“the way [MCSO] is doing the sweeps,
it’s endangering our guys.142
Arpaio’s well-honed media strategy has afforded
him the public persona of a maverick. Interviewed
in his office on January 17, 2008, by Telemundo—
one of the largest Spanish-language TV networks in
the US— he invited the cameras to film the Pruitt
raid he had scheduled for the afternoon on the
following day. “I’m sending out my posse of 500
to go after them.” The Telemundo reporter asked,
“Could you do it earlier?” The Sheriff responded,
“If you were CNN.”
Even US citizens have felt the brunt of
Arpaio’s anti-immigrant crusades.
Americans of color, local political leaders who
publicly criticize Arpaio, and the employers
of undocumented workers are the frontline of
American citizens impacted by the “criminal illegal
alien” crack down. Victims of racial profiling
are the most obvious example. Israel Correa, a
Latino man, was stopped by sheriff’s deputies
for driving without headlights on.143 Correa was
born in Maricopa County, but had an accent
that the deputies may have considered foreignsounding. They arrested Correa “on an ICE hold.”
He was kept in custody for several hours after his
immigration status was correctly documented.
His car was impounded and the Sheriff’s office
confiscated his private property—including $2,000
in cash and a legally registered handgun.

40

The Phoenix-based business firm Steptoe &
Johnson, in conjunction with the Arizona American
Civil Liberties Union (ACLU) and other attorneys,
filed a class action lawsuit against Sheriff Arpaio,
his office, and Maricopa County. The suit charged
that the immigration raids—dubbed as “crime
suppression sweeps”—violated the equal protection
provisions of the Constitution by utilizing rampant
racial profiling.144 Dan Pochoda, Arizona ACLU’s
legal director, explained: “This lawsuit is not just
directed to Joe Arpaio. It is a message to other local
agencies: these [practices] will not go unchallenged
and will require significant money to defend.”145
The lawsuit was filed on behalf of Latino
community members, including a US citizen
detained in front of his family’s auto repair shop
after police heard him listening to Spanish radio.
Notably, ICE is not among the parties sued. Even
though it is legally responsible for overseeing
287(g) arrests, the agency does not itself execute
them. Litigators believed that naming ICE would
complicate the legal argument and therefore
excluded the federal agency from liability in the
lawsuit. The claim is pending in the US District
Court in Arizona.
Business owners have also entered Sheriff Joe’s
line of sight. In July 2007, legislators enacted
a state-level employer sanctions law designed
to suspend the business license of anyone who
knowingly hires an undocumented immigrant;
and to permanently revoke the license of secondtime offenders.146 The legislation was technically
incoherent, but Napolitano signed it into law with
the understanding that a clarification bill would
follow.147 Sheriff Joe immediately established a
hotline for citizens to report employers whom they
suspect of hiring undocumented workers. A local
Chamber of Commerce official charged that small
businesses are a casualty of the sheriff’s need for
media attention.148
Thus far, Sheriff Joe’s employer sanctions raids
have only arrested and prosecuted employees
suspected of working illegally.149 The main fallout
of the state employer sanctions laws for citizens is
the disincentive for economic development. State
Representative Bill Konopnicki reported: “We

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

have already lost three fairly good sized companies
who have chosen not to come to Arizona because
of these punitive laws. In Yuma, where I grew up,
they lost a lettuce crop because they had no one
to harvest the lettuce.”150 Meanwhile he and other
business proponents in the legislature have tried
to redress the impact on employers by shifting
the risks onto undocumented employees, and
by creating a state-level temporary guest worker
program. The unprecedented move would draw
businesses into Arizona by creating a legal avenue
to cheap foreign labor.
Political critics in the private sector have also
been targeted. ACLU attorney Dan Pochoda was
arrested by Arpaio’s “posse” during a rally at Pruitt
Furniture, when he stopped for a few minutes to
speak with one of the participants. Thomas’s office
prosecuted him for criminal trespassing. He had to
bear the expense of a trial where he was acquitted
of all charges.151
The executive editor and the CEO of the Phoenix
New Times—a media outlet wedded to the
muckraking journalism of earlier eras—were also
arrested. The Phoenix New Times was the first local
publication to unabashedly criticize the Maricopa
conspiracy theory and Arpaio’s immigration raids.
In a story headlined, “Breathtaking Abuse of the
Constitution,” the paper’s editor and CEO detailed
a grand jury subpoena seeking information about
the identity, purchasing habits, and browsing
proclivities of the their online readership.152 After
sustained public criticism, the Maricopa County
Attorney’s Office dropped the misdemeanor
charges.
Citizens and the elected leader of Guadalupe,
Arizona, were shocked to find themselves in the
287(g) crossfire. The town’s founders are Yaqui
Indians. Forty-four percent of the population is
Native American and fourteen percent is foreignborn.153 For decades, Guadalupe has contracted
with the Maricopa County Sheriff’s office to
perform public safety duties. The town historically
had difficulty getting the sheriff’s office to respond
to crimes. But in April 2008, the town saw “crime
suppression teams” it never requested. Guadalupe
became a theatre for Sheriff Joe. People were

cited or arrested for traffic violations including
“improper use of car horn.”154 The community was
outraged.
Guadalupe Mayor Rebecca Jimenez hand-delivered
a stern statement to Arpaio in the parking lot of
a local business and ordered him to leave. During
a radio interview in the immediate aftermath, she
asked and answered a question for her constituents.
“Did we foresee him coming into our small little
community to do his grandstand for his own
political agenda? No...”155 Arpaio, wholly unused
to resistance, asserted that the town could not opt
out of his immigration sweeps. He threatened to
terminate all services, and gave the mayor 180 days
to decide if she wanted to continue the contract.156
The negotiations stand unresolved. In response to
growing public protest, Arpaio snarled sarcastically,
“Thank you, demonstrators, for calling me Hitler
and Nazi. Thank you.”157
Other law enforcement agencies fell into line.
Phoenix Mayor Phil Gordon castigated Sheriff Joe
in March 2008 for his relentless raids in Latino
districts of the city. “The posse didn’t lock up
murderers. They locked up people with broken
tail lights.” The Maricopa County Sheriff’s Office
responded with a public records request seeking the
mayor’s e-mails, cell phone records, and meeting
calendar.158
Mayor Gordon also requested a federal investi­
gation into the Maricopa Sheriff’s Office for
civil rights violations including racial profiling.
Gordon detailed the Maricopa crime suppression
programs that used posse members and 287(g)
powers to stop and arrest Latinos. He charged that
the sheriff “put our residents’ well-being, and the
well-being of law enforcement officers, at risk.”159
Gordon had no traction with ICE officials, who
insisted that Maricopa County had not violated
its 287(g) contract and refused to curtail the local
immigration enforcement.160
Just a month earlier, the Phoenix Police Depart­
ment had signed a 287(g) MOA with ICE. Gordon
caved to pressure from a police union leader, a
controversial figure who was exposed for spreading
false rumors that a local murder was perpetrated by

41

CHAPTER II. The Arizona Laboratory

Mexican military men.161 But Gordon was not the
only one who folded. The elected sheriffs of Pima,
Pinal, and Yavapai counties also signed onto the
287(g) program.
The state funded the immigration raids in
Maricopa County.
ICE fact sheets claim that Arizona taxpayers
have saved millions of dollars with the state cor­
rections 287(g) program.162 But that is truncated
economics, given that the Maricopa County
program is draining the state coffers. Sheriff Joe
credited Representative Pearce: “Pearce helped us
get state funding. It was very unusual. We hired
fifteen deputies.”
The Department of Public Safety in Arizona has
long promoted an anti-gang enforcement program,
the Gang Intelligence and Team Enforcement
Mission (GITEM). Originally created as a
highly visible foot patrol, budget cuts forced it
to focus on investigations and terminate funding
to law enforcement partners. The DPS director
commented: “This created difficulties for many
agencies and resentment for the dramatic cut to the
program.”163
A national survey of 300 large cities found that
the formation of gang units is more closely
associated with the availability of funding and
the size of the Latino population, than with
the extent of local gang or crime problems.164
GITEM’s transformation confirms the pattern.
In March 2006 the Arizona legislature voted to
add immigration enforcement into the agency’s
mandate. Inserting an extra “I” for immigration
into the acronym, the program was reborn as
GIITEM.165
One year later Russell Pearce championed an
appropriations bill to fund the new immigration
mandate at $10 million, making it the largest single
budget line for GIITEM.166 Pearce lamented that
it was not more: “We had funds dedicated solely to
alien enforcement—$56 million in HB 2577—but
the Governor vetoed it. She’s vetoed about 16
bills.”167 The bill required the Department of Public
Safety to enter into a new 287(g) agreement in

42

order to receive the additional monies. By April
2007, the Arizona Department of Public Safety
became the second state agency deputized with civil
immigration powers.

GIITEM Appropriations
Fiscal
Year

Amount of Funding

Fiscal
Year

Amount of Funding

1994

$5,892,000

2002

5,712,700

1995

6,944,100

2003

4,244,100

1996

5,500,000

2004

4,271,700

1997

6,175,000

2005

4,641,200

1998

6,159,000

2006

9,022,700

1999

6,199,000

2007

26,544,100

2000

6,349,000

2008

31,799,700

2001

6,349,400

2009

31,799,700

Source: Arizona State Legislature and Arizona Department of Public Safety 19942008

Immigration resuscitated the agency budget.
GIITEM became a fiscal pass through which state
monies could go to the Maricopa deputies. At a
news conference announcing the funding, while
flanked by Pearce, House Speaker Jim Weiers, and
Senate President Tim Bee, Sheriff Joe announced,
“My part of this GIITEM task force is we will go
after illegal immigration.”168 The state funding
directly supported the Maricopa conspiracy
campaign and day laborer sweeps.
Representative Konopnicki, who was also critical of
the state funds being poured into prison expansion,
remarked on the politics of the appropriations,
“If you vote against those things, you get labeled
as someone who is for illegal immigration. So
what’s happened is that people have fallen in lock
step. They don’t like to be beat up in the press.”169
Konopnicki also raised concerns about the price
tag. Despite infusions of state cash, the Maricopa
County Sheriff’s Office accrued a budget deficit
of $1.3 million in the first three months of the
287(g) MOA.170 As overtime hours for deputies
have spiraled upward, the total costs remain
uncalculated.

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Arizona as a whole stands as a cautionary tale. By
targeting “criminal illegal aliens” political leaders set
off a domino effect that transformed the very fabric
of law enforcement in local democracy. In October
2008 ICE sent Arizona another new Special Agent
in Charge, Michael Allen. In a TV interview with
the local PBS, Allen was asked if Maricopa County
was improperly using the federal 287(g) program.
Allan both defended Sheriff Joe and shielded ICE
from liability for his actions:
The state of Arizona has been very
aggressive and progressive in enacting
state laws which focus on illegal immi­
gration … They don’t need ICE autho­
rity to do much of what they do in the
area of immigration enforcement because
the state of Arizona has empow­ered them
to enforce laws that are very similar and
parallel and track many of the federal
statutes … [Sheriff Joe] often refers to his
enforcement of immigration law in a
sequence—state and federal immigration
law. And that’s how we envision the use
of the 287(g) authority. The sheriff’s
office and other agencies throughout the
state have to rely on their own inherent
authority to conduct police activities on
a daily basis, how they enforce state laws
regularly. Our vision for the 287(g)
authority is that authority kicks in after a
cross-designated officer has exhausted all
their resources and authorities under
state law, and then the 287(g) authority
kicks in.171
The Phoenix New Times, whose editors were
targeted by Thomas and Sheriff Joe, observed the
normalizing effect of the 287(g) program. “Cops
anywhere in Maricopa County equal La Migra …
The changes, along with the new police policies,
have essentially transformed police, state troopers,
deputies, and jail and prison guards into part-time
immigration enforcers.”172

Pearce, Arpaio, and Thomas’ crowd are in greater
control, and absent even potential veto threats
from Governor Napolitano who is heading to
DC.”173 Obama selected Governor Napolitano to
take Chertoff’s position as Secretary of Homeland
Security. With incoming Governor Jan Brewer
more politically aligned with the anti-immigration
efforts, not even the threat of a veto stands in
Pearce’s way.
Jen Allen of the Border Action Network is more
hopeful. She observes that the current economic
crisis could force politicians to re-prioritize public
monies:
Most state immigration bills died [in
2008]. Only two made it out, showed up
on Governor Napolitano’s desk, and she
vetoed them. We got zero coverage of
this huge turn around. Our activism
helped: we were at every single commit­
tee hearing, we had the technology to
click and email the legislature. But the
other truth is that nothing happens in a
vacuum. Our state and local economy
was the big factor. Many legislators were
frustrated with Russell Pearce. His own
stalwart, socially conservative republicans
say, ‘with all due respect, you are wasting
our time. We need to respond to budget,
education, healthcare, housing.’ His bills
have died in committee … Our county
budgets have been hacked by millions of
dollars. A lot of our county monies were
invested in Lehman [Lehman Brothers,
the investment bank that failed in
September 2008]. It all tanked.174

Dan Pochoda of the ACLU Arizona believes
the future of Arizona looks ominous. While he
is optimistic about the turnaround in national
political leadership, Pochoda commented,
“Arizona seems to have been the sacrificial lamb.

43

CHAPTER III:
ICE: Force
Without
Mission

Under the Bush Administration, immigration
authority was merged into homeland security.
The 287(g) program is a graduated path to
the inherent authority doctrine. Enlisting law
enforcement to pick up deportable immigrants does
not solve a public safety crisis, so much as assert
that immigration is a problem to be solved by crime
strategies. If 287(g) is a force multiplier for ICE,
the very merger of immigration into Homeland
Security has multiplied the conflicts in the mission
of each mandate.
Illegal immigration may be, in the words of
historian Mai Ngai, an “impossible subject,” both
“a social reality and a legal impossibility … a person
who cannot be and a problem that cannot be
solved.”1 At the federal level, either the government
is fickle or immigration is a type of problem
that keeps changing. Immigration authority has
passed through many hands. First entrusted to the
Treasury Department in 1891, it moved to the
Department of Labor in 1933, and then to the
Department of Justice in 1940. Under the Bush
Administration in 2003, it entered the newly
formed Department of Homeland Security (DHS),
where it remains today.
Following the September 11th attacks, a new
question quickly reframed an old debate: Is
immigration authority inherently a counterterrorism project? In testimony before the US
Senate, historian Bill Ong Hing cautioned that it is
not:
The vast majority of immigrants and
non-immigrants are simply not relevant
to the issue of national security, and to
make them so would pose an unnecessary
distraction and a drain on resources of

the new Homeland Security Department.
Long before September 11, INS miscues
provided legitimate fodder for criticism
and calls for reform, and even disman­
tling of the agency. But the need to
reform INS and the need to provide
better national security should not be
confused. The temptation to conflate the
two issues is enticing.2
Congress decided to insert both service and
enforcement functions into the Department of
Homeland Security and divide them into three
bureaus: Citizenship and Immigration Services, to
process visas and naturalization forms; Customs
and Border Protection, or the Border Patrol; and
Immigration and Customs Enforcement, or ICE.3
Homeland Security itself is another complicated
enterprise. The agency, representing the largest
reorganization of the federal government since
the New Deal, was a dramatic response to the
September 11th attacks. But it was not a decisive
victory. It is more, in the words of PJ Crowley,
“a work in progress.” Crowley, a senior fellow at
the Center for American Progress who directs
Homeland Security policy, described the problem
of compounding two ambivalent missions:
People frequently describe the Pentagon
as an aircraft carrier. It starts down a
particular path and it’s really difficult to
turn in a new direction. DHS’s problem
is the opposite. [The original office] was
formed in 2001, it was tilted almost
exclusively in one direction, then in 2005
another with Katrina, then the collapse
of immigration reform and the
enforcement-only crowd … DHS is
worried about border security, and about
transit systems. We know because of
Katrina that emergency preparedness and
response is an important mission. We
understand that keeping dangerous
technologies out of the hands of rogue
elements is important. 9/11 told us that
high profile targets—the Pentagon and
World Trade Center—that’s important.
Got it. There are many things called
Homeland Security, properly in that lens.
Immigration is a dimension of border

ICE
tttr&IRAHGIES

45

CHAPTER III. ICE: Force Without Mission
This demand to extend enforcement from the
border to the interior won decisively within the
Department of Homeland Security.

security, but you could make a case:
should immigration be seen through an
economic lens, an international lens, a
labor lens? We currently have it through a
security lens. Over time we have to
decide which one fits best.4
The Department of Homeland Security
elevated the interior enforcement
mandate.

Federal Immigration Budget
Net Appropriations, in millions

Services
Fiscal
Year

Citizenship and
Immigration
Services (visas
and citizenship)

Enforcement
Immigration and
Customs
Enforcement
(interior
enforcement)

Customs and
Border
Protection
(border
enforcement)

Prior to September 11, 2001, the
Justice Department’s Immigration and
Naturalization Service (INS) played the
2003
695
2,444
5,237
dual role of social worker and enforcer.
That is, processing visas and naturalization
2004
235
3,407
4,899
applications; as well as arresting,
2005
160
3,537
5,371
incarcerating, and deporting migrants.
A bipartisan commission that studied
2006
114
3,483
6,749
immigration for the previous five years urged
2007
182
3,964
8,183
Congress to hand services over to the State
2008
161
5,261
10,954
Department because: “Migration issues are
international in character and they require
Source: Congressional Research Service 2003-2008
understanding and cooperation among many
nations. State can and should play the key role in
By 2008, Homeland Security priorities shifted
the broad questions of migration policy, as it now
dramatically, with the overall picture skewed heavily
does in refugee matters.”5
toward enforcement. Funding for services was cut
to one quarter of its original levels. Border and
But pre-existing interests within the halls of
interior enforcement appropriations grew more
Congress pushed another agenda. Founded in
than 200 percent. The rapidly growing budgets
1999, the Immigration Reform Caucus had only
of ICE and Border Patrol, in stark contrast to the
a handful of members before the September 11th
6
depleted resources for citizenship, have changed
attacks. In August 2001, its founder Rep. Tom
the economic debate on immigration. It is no
Tancredo introduced a bill to put a moratorium on
longer enough to argue about whether immigrants
legal immigration to the US. The national security
are valuable workers; if they have created jobs or
debate boosted the caucus’ restrictionist agenda,
stolen them; if they have depressed wages or saved
even recruiting more than one hundred new
cities from recession.8 We must now also consider
congressional members. In the Senate, where heads
the impact of immigration enforcement (not
are typically cooler, Sam Brownback of Kansas
immigrants per se) on the economy.
urged:
Not only do we need to intercept
terrorists, but we also need to investigate
fraud, remove criminal aliens, and
enforce employ­ment related immigration
laws. Additionally, immigration functions
are not limited to the ports of entry. In
fact, they extend to a wide array of
deter­minations that are made within the
United States.7

46

In the face of two missions, ICE has
prioritized force over intelligence.
The money trail within ICE is a separate matter.
ICE is the nation’s interior immigration police
force. It is entrusted with identifying and expelling
noncitizens already within the country. ICE agents,
together with Border Patrol, form the largest civil

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

law enforcement agency in the country. But ICE
has another, presumably more important, mission:
counter-terrorism. ICE is officially the investigative
arm of Homeland Security. When its sister agencies
refer cases, ICE is supposed to bring them to
fruition by digging for evidence and handing
serious security threats to the US Attorney for
criminal prosecution.

in ideological disagreement, just about everyone
agrees that migration does not just happen. It is
produced. Migration experts analyze the macro and
microstructures that push people from one place
and pull them into another.11 Even Lou Dobbs—
the former corporate cheerleader turned populist
and then iconic nativist—links migration to capital
in his protectionist trade platform.12

From the outset, the dual missions of this hybrid
organization raised a resource question. Would ICE
invest in the skills needed for counter-terrorism,
like the investigation of financial and customs
issues, or would it repeat the INS legacy of raids
for the sake of raiding? It appears that the largest
investigative arm of Homeland Security has
chosen muscle over brain. ICE started flush with
cash but searching for a mission. Their operations
were inconsistent, shuffling between child porn,
gangs, and worksite raids. While ICE’s overall
budget increased in 2008, the percentage devoted
to counter-terrorism declined by ten percent to
$2.2 billion—less than half of its total $5.2 billion
appropriations.9

ICE is the predominant voice in the debate
claiming that anti-crime strategies will deter the
movement of people across borders. ICE’s primary
evidence of effectiveness is the growth in the
agency’s operations:

Shortly after its birth, ICE’s Office of Detention
and Removal issued a ten-year strategic plan
entitled Endgame.10 The agency’s core investigative
function is conspicuously absent from the
ambitious plan. ICE rejects counter-terrorism in
favor of prioritizing “violations not directly linked
to terrorism,” and sets as its ultimate goal the
capacity to “remove all removable aliens.” ICE’s
legacy organization, the INS, had many defects.
Rather than redress them, ICE has narrowly
defined capacity-building as the deployment of
the greatest force to remove the biggest number.
The centerpiece of ICE’s operations is the virtually
absolute prosecutorial power to incarcerate and
exile whole classes of noncitizens, created in the
same 1996 laws that included the 287(g) provision.
ICE names “removal” and “custody management,”
or physical deportation and detention, as its “core
business functions.”
Endgame is essentially a numbers racket. The
goal to “remove all removable aliens” rests on a
reconstruction of migration as a threat to national
security. While the immigration debate is mired

TOTAL DEPORTATIONS
Year

Removals

“Criminal Aliens”

Percentage
“Criminal Aliens”

1994

45,674

32,512

71%

1995

50,924

33,842

66%

1996

69,680

38,015

55%

1997

114,432

53,214

47%

1998

174,813

62,108

36%

1999

183,114

71,188

39%

2000

188,467

73,065

39%

2001

189,026

73,545

39%

2002

165,168

72,818

44%

2003

211,098

82,822

39%

2004

240,665

91,508

38%

2005

246,431

91,725

37%

2006

280,974

97,365

35%

2007

319,382

99,924

31%

Source: Department of Homeland Security, Office of Immigration Statistics 1994-2007

The data that ICE features in its annual reports
illustrates a rapid escalation in the use of force.
But hyper-enforcement does not equal effective
deterrence. In criminal justice work, the line from
arrest and incarceration to deterrence is hotly
debated and never direct. And in the realm of

47

CHAPTER III. ICE: Force Without Mission

immigration, prosecution may increase violations.
Breadwinners who historically moved back and
forth between the US and Mexico or Canada now
fear the risks of crossing are too high. They are
bringing their families here to settle.13
Crowley asserts that replacing real counterterrorism work with interior immigration
enforcement may spark another danger:
If you compare why the US does not
have a homegrown terrorism challenge,
but Europe does, it’s because we have
always successfully integrated foreign
born populations … the lion’s share of
the immigration challenge is hemi­
spheric, and Mexican … when you target
them, you end up with a community
that doesn’t feel welcome. It’s that
dynamic that produces humiliation,
distrust, and domestic terrorists.14
The ICE term “criminal alien” is so broad, it
becomes vacant.
The “criminal alien” data released by ICE is
noteworthy for two reasons. First, as ICE intensifies
its operations the overall portion of deportees with
criminal records has dropped from seventy-one
percent in 1994 to thirty-one percent in 2007.
Secondly, the category itself is exceedingly broad.
“Criminal aliens” refers to any noncitizen (legal or
undocumented) with any criminal record.
Consider Ansar Mahmood, among the nearly
100,000 “criminal aliens” deported in 2004.15
Mahmood came to the United States as a lawful
permanent resident. He delivered pizza in
Columbia County, New York. Four weeks after
September 11th officials detained him on suspicion
of terrorism. He was a Pakistani man taking
pictures near a water treatment plant. He was
cleared, but he allowed law enforcement agents to
search his home without a warrant. They found
evidence that he had helped an undocumented
couple get a home and a car. He was convicted
of harboring illegal aliens in criminal court and
subject to mandatory detention and mandatory
deportation.

48

The citizens of Columbia County formed a defense
committee for Mahmood. They secured political
support from members of Congress and petitioned
ICE to grant prosecutorial discretion. But ICE
still deported him to Pakistan in 2004 after three
years in detention. New York Senator Charles E.
Schumer, regarded as a national security hawk in
the Democratic Party, commented, “It’s a disgrace
… Mahmood wanted to be an ideal citizen, and he’s
the kind of person America should embrace. There
is no reason he should be deported.”16
While the War on Drugs federalized what were
formerly state crimes, the War on Immigrants works
in reverse. It is devolving federal enforcement to
the states. Criminologist Jonathan Simon cautions
that the Drug War “created enormous incentive
for police officers to not police real crime. It overly
rewarded work with fewer real responsibilities. It
devalued investigation of murder and rape cases.
The War on Drugs is a classic example in garbage
policing.”17 The War on Immigrants creates the
same incentive.
Arizona’s human trafficking statute and Conspiracy
Theory campaign illustrate how, at the state
level, new criminal codes for immigration-related
offenses are filling up the “criminal alien” pool.18
At the federal level, growing portions of criminal
convictions are for immigration matters that were
previously treated as purely civil violations. Under
former President Bill Clinton, immigration law
prosecutions doubled from 1996 to 2000.19 Under
the Bush Administration, referrals climbed from
just under 24,000 in 2003 to almost 40,000 in
2004, and prosecutions rose eighty-two percent—
from almost 21,000 to just under 38,000.20 The
most common charge is illegal reentry. Immigration
offenses are now the largest category of federal
prosecutions, exceeding even drug enforcement.
Internally, ICE is a case study in
organizational failure.
Force has not come without scrutiny. In just five
years, ICE has been the subject of eight internal
audits conducted by Homeland Security’s own
internal investigators, the Office of the Inspector
General (OIG). One recurring theme is the

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

misconduct of ICE personnel, which ranges
from gross negligence to criminal behavior.
One audit notes that in joint operations, the
resentment of ICE staff toward colleagues at the
Federal Bureau of Investigations has caused the
agency to under perform and neglect leads on
terrorism.21 Competition rather than collegiality
mars ICE relations with the Border Patrol too.22
Another audit found that ICE staff failed to
meet basic security requirements in protecting
a federal building.23 In an investigation of ICE
staff misconduct, auditors were concerned that
“completed internal affairs cases, in which the
misconduct allegations had been substantiated,
were not receiving timely or effective attention with
a probable erosion of good discipline.”24
By 2006, the specter of terrorism had largely faded,
but ICE tactics had escalated with raids sweeping
through Latino communities. ICE agents wore a
new uniform, with the word “POLICE” printed
on their jackets. But the quality of their police
work is doubtful. Home raids typically resulted
in “collateral arrests” of people who happened to
be there. The OIG found that data used by ICE’s
fugitive operations to identify targets for home raids
is inaccurate in up to fifty percent of cases.25
Local law enforcement officers in Marshalltown,
Iowa, were caught off guard by ICE personnel
in their own jurisdiction. When ICE raided the
Swift Meats plant agents had notified the county
sheriff only ten minutes prior to executing the
raid. In congressional testimony, Marshall County
Sheriff Ted Kamatchus, who is also president of
the National Sheriffs’ Association, criticized ICE
activity not as criminal or civil enforcement, but
as “one example of potential dangers that could
arise from an expansion of presidential authority
to deploy military and federal officials to local
communities.”26
Through Operation Community Shield, ICE
has partnered with local police in immigrant
“gang raids.” Gangs are a conspicuous law
enforcement target. It appears, however, that
traditional gang enforcement methods have no
significant rehabilitative or deterrent effects. Gang
membership is typically short-lived with people

leaving of their own accord. A recent report by
Justice Strategies, produced for the Justice Policy
Institute, documents how joint law enforcement
taskforces are sprouting nationwide even though
gang membership is in decline, even in jurisdictions
where overall crime rates are dropping as well.27
In 2007, Nassau County, New York, débuted a
triple-sized joint taskforce with ICE and local
police conducting the largest immigrant gang raid
to date.28 An anticipated public relations victory
turned into a mutiny when failures in personnel
and intelligence came to a head. Nassau County
police pulled out in the middle of the operation
charging that ICE officers turned their guns on
the local cops and withheld intelligence on those
ultimately arrested.29 Of the 186 arrested on Long
Island, twenty-eight were identified as suspected
gang members subject to criminal charges. The
remaining 129 were collateral arrests of people
swept into deportation proceedings, including
one US citizen. These stats are not an anomaly.
Raids are like air bombs. By design, they target
communities rather than individuals.30
ICE officers on the beat are not, however,
responsible for problems that start at the top.
Former ICE chief Julie Myers, a personal friend of
George Bush’s Homeland Security secretary, was
appointed to the post despite having zero expertise
in immigration or law enforcement. She built a
fool’s reputation when, at the company Halloween
party, she gave “Best Costume” to a white
employee who painted his face black and wore fake
dreadlocks and a prisoner jumpsuit, mimicking a
Rastafarian detainee. Under media scrutiny, Myers
denied the event occurred.
After pictures surfaced, a congressional investiga­
tion determined that she had led a “coordinated
effort to conceal” her role in the scandal.31 A
former high-level DHS official posits, “ICE’s
fiscal priorities are a combination of Julie Myers, a
couple of very influential directors and the political
pressures and PR issues … ICE is pretty tied to the
news. You follow the news, that’s where the money
is going.” Myers left her post in good standing with
her friend-turned-boss lauding her years of positive

49

CHAPTER III. ICE: Force Without Mission

service and concluding, “I look forward to our
continued friendship.”32

facilities is stipulated in an Inter-Governmental
Service Agreement (IGSA).35

Criminologist Patrick O’Hara warns that corrupt
or racist individuals make a poor diagnosis for
why law enforcement agencies fail. “Mindset and
motivation are elusive concepts in general, and
specific worldviews are hard to pin down, easy
to deny, difficult to reverse, and not necessarily
linked to action.”33 All organizations, including
law enforcement, struggle with hierarchical
assent, the shunning of whistleblowers, policy
sabotage by renegade workgroups, and abuse of
the organization’s resources by executives and
rank-and-file alike. But because law enforcement
agencies in particular are divided mainly by rank
into a rigid hierarchy and by specialization into
duties, some themes recur. O’Hara describes
six common organizational pathologies among
which is “structural failure”—when processes are
going according to plan but still fail. ICE—at
the midpoint of Endgame, with a growing budget
but with no limit to the insatiable need for more
resources—may be a textbook example.

The total number of people whom ICE detained
annually grew from 202,000 in 2002 to 257,000
by 2006. The average daily detained population has
climbed steadily since 1994.

Immigration detention is ICE’s most matured
devolution program.
In Endgame, ICE identifies partnership with other
agencies as the first of three capacity-building
strategies. The 287(g) program began in earnest as
a premiere pilot project in service of this strategy.
In April 2008, ICE reframed 287(g) as simply
one option among many in ICE ACCESS, “an
umbrella of services and programs offered for
assistance to local law enforcement officers.”34
Other options included the street-level anti-gang
Operation Community Shield, and the Criminal
Alien Program to identify aliens incarcerated in
criminal facilities for deportation.
Through the 287(g) program deputized state and
local law enforcement agencies perform civil arrests
and detentions on their own dime, acting as feeders
into the federal deportation system. The ICE civil
detention system, in contrast, provides the bodies
and the cash. ICE contracts more than 400 local
jails and state prisons to hold over half its civil
immigration detainees. Payment to contracted

50

The dip in 2005 detention figures reflects a loss of
manpower. From March 2004 to May 2005, ICE
underwent internal financial management problems
that led to a hiring freeze in the Detention and
Removal Office and the larger agency.36 ICE
personnel did not use their prosecutorial discretion
to assess and release detainees. By June 2005,
eighty-seven percent of detention bed space was
filled with mandatory detainees.37
According to Andrea Black, coordinator of the
Detention Watch Network, a national coalition
working for reform of the US detention and
deportation system, “ICE’s single-minded emphasis
on detention as a deterrence tool, along with
intense lobbying by private prison contractors
and county jailers, has resulted in the creation of
a detention industry totally divorced from public
safety. Americans have seen an exponential increase
in detention beds over the past decade, despite the
availability of effective and low-cost alternatives.”38
ICE’s reliance on mass incarceration and its goal of
building detention capacity make local sheriffs—as
the keepers of bed space—an ideal partner. Yet
in civil detention, as with the 287(g) program,
the irreconcilable differences between civil and
criminal rules have threatened the integrity of ICE
operations. In Endgame, ICE itself cites the housing
of detainees in subcontracted county jails as a key
“threat” to that integrity.
Detained aliens are in administration
custody (versus punitive or correctional)
and are therefore afforded rights and
privileges not gained by prisoners incar­
cerated in other federal institutions …
Even the detention by DRO [Detention
and Removal Office] of those with
criminal convictions (“criminal aliens”) is
strictly administrative in nature, not
punitive … it is important that law­

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Civil Detention
1994

Average Daily Detention
Population
6,785

1995

7,475

1996

9,011

1997

11,871

1998

15,447

1999

17,772

2000

19,458

2001

20,429

2002

20,282

2003

21,133

2004

22,812

2005

19,619

2006

21,450

2007

30,295

2008

31,345

Year

Sources: Congressional Research Service and
Department of Homeland Security 1994-2008

makers, immigration organizations and
the public understand the uniqueness of
administrative (DRO) detention vs. the
punitive detention administered by the
BOP and other custodial agencies.39
Civil detainees, even when held in criminal
facilities, are supposed to receive treatment as
outlined in the ICE “Detention Standards.”40 The
thirty-eight standards outline rights from legal and
telephone access to religious and medical services
to marriage requests. Promulgated in November
2000, they were the result of negotiations
between the American Bar Association, the Justice
Department, and detainee advocates who cited the
legacy Immigration and Naturalization Service for
detainee abuse.41
The precepts of law and order apply not only
to the individual subjects of law, but also to the
organizations that keep order. Yet, in the world of
immigration detention the civil law enforcement
agency has built its own capacity by flagrantly
breaking the rules. The failures of jails and prisons

to observe the Detention Standards—and of ICE to
adequately supervise its most matured devolution
program—challenge the assumption that civil and
criminal law enforcement are compatible. Here,
normalizing error is part and parcel of building
capacity.
ICE failure in the oversight of immigration
detention has led to numerous detainee
deaths.
The 287(g) program as it evolved in Arizona is
just one glaring example of how ICE has devolved
enforcement powers without proper supervision.
The 287(g) statute requires that a federal agency
“supervise and direct” each deputized officer and
the program contract names ICE as the supervisor.
But where was ICE when Sheriff Joe Arpaio denied
any obligation for compliance with the basic
requirements set forth in his 287(g) MOA? The
conservative Goldwater Institute explains:
[Maricopa County Sheriff’s Office’s]
contract with ICE requires specific
procedures for immigration enforcement,
such as establishing trustworthy evidence
that crimes are taking place. Such
evidence has not always preceded the
sweeps, such as the sweep in October
2007 in Fountain Hills, the town where
Arpaio lives. Fountain Hills is not
connected to human smuggling activity.
To the criticism that he has not followed
requirements of the ICE contract, Sheriff
Arpaio has responded, “Do you think I’m
going to report to the federal
government? I don’t report to them.”42
Yet civil immigration detention, where ICE is
ultimately responsible for oversight as well, stands
as the best documented example of negligence.
The most frequent theme in government OIG
audits of ICE is detention mismanagement. In
an investigation of five county jails subcontracted
to house detainees, the OIG found that every
single facility violated the Detention Standards.43
The audit itself was a procedural fluke: Detainees
had no formal procedure to report abuse. Instead
detainees’ complaints were echoed by advocates
and the media. Three facilities investigated failed to

51

CHAPTER III. ICE: Force Without Mission

properly monitor those who attempted to commit
suicide. Also in three facilities, 196 of 481 medical
requests were not responded to in a timely fashion.
Four of five jails violated the rules for hunger
strikers. Crawling with vermin, facilities were
literally home to mice and men. Detainees got food
poisoning too. In 2006, at the same time that bird
flu crossed the globe, facilities served undercooked
poultry to immigrant detainees.
In an investigation of a private telephone company
subcontracted by ICE to service detainees, the
General Accounting Office (GAO) of Congress
found that “insufficient internal controls and
weaknesses in ICE’s compliance review process
resulted in ICE’s failure to identify telephone
system problems at most facilities GAO visited.”44
The auditors also reprimand ICE for the most
basic error: “The structure of the contract does
not provide a mechanism for the government to
withhold payment from the contractor.”
In 2001 the Supreme Court ruled that it is
unlawful to indefinitely detain a person who has
already been ordered deported, but cannot be
shipped out because the receiving country either
no longer exists or cannot accept the deportee.
ICE dragged its feet with compliance. By 2007
the Inspector General audited and found that
ICE lost in its system more than nineteen percent
of people eligible for release. The audit asserts,
“The weaknesses and potential vulnerabilities in
the POCR [post-order custody review] process
cannot be easily addressed with ICE’s current
oversight efforts, and ICE is not well positioned
to oversee the growing detention caseload that will
be generated by DHS’ planned enhancements to
secure the border.”45
In a separate audit, the OIG found that ICE
insufficiently prioritizes data needed to fulfill its
mandate and appraise its performance in civil
detention. The audit charges that ICE lacks even a
functioning data management system. Failures to
monitor the detainees who are actually removed,
and to maintain a civil detainee classification
system measuring the risk level of detainees, were
among the holes in data collection.46

52

ICE’s abysmal failure to manage detention has been
the subject of media headlines and congressional
concern. Beginning in 2004, National Public Radio
ran a series of stories on corrections officers in a
New Jersey county jail attacking civil detainees with
guard dogs;47 an officer thrashing another detainee’s
knee caps while he was recovering from knee
surgery;48 and the death of Richard Rust, a young
Jamaican man from Brooklyn who collapsed in a
Louisiana detention facility.49 It took an ambulance
over forty-five minutes to arrive and officers ordered
that no one give him CPR as he lay dying.
Although Rust’s death occurred in civil detention,
a prison medical expert suggested that the cause
was “deliberate indifference” to serious medical
needs, a “cruel and unusual punishment.”50 Janis
Rosheuvel, the director of Families for Freedom,
an organization that documented Rust’s death and
other abuses, charged, “When it doesn’t kill you,
detention breaks you down. ‘Civil’ prison adds
insult to injury. Even the people who have claims
to stay here sign out because they can’t take it.”51
Moved by the death, one congressman introduced
a bill to investigate all detainee deaths.52 Eleven
representatives wrote a letter to the Government
Accountability Office demanding a full inves­
tigation of detention conditions. They wrote,
“Congress is currently considering legislation to
significantly expand the numbers of and classes
of aliens subject to mandatory detention in DHS
custody. Before such expansion, we must be certain
that DHS is capable of protecting detainees in its
charge.”53
In May 2008 another barrage of media stories
resurrected the detention management crisis. The
New York Times exposed the “death by detention”
of at least sixty-six immigrants.54 A week later,
the Washington Post reported at least eighty-three
detainees dead and widespread medical neglect.55
Soon after, the House and Senate both introduced
legislation to address detainee medical care.56
By Fall 2008, no legislation had passed. Arizona
Congressman Raul Grijalva sponsored another
briefing on detention conditions, following
constituents’ reports of rampant abuse by ICE
and Border Patrol against detainees in short-term

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

confinement.57 The faith-based group No More
Deaths, located in Arizona, reported widespread
denial of food and water to detainees; physical
and verbal abuse; and even the separation of
minors from their families during the deportation
process.58 A retired judge, part of the team of
trained volunteers and medical professionals
documenting violations, reported repeated
complaints that “water was provided in a single,
large dirty bucket with one ladle placed in the
middle of a large detention room.”59
The US Congress has responded to the detention
crisis with a demand for improved conditions.
But that may be putting the cart before the
horse. ICE has glaring failure points. Devolution
strategies multiply these failure points and make
errors spiral. The poor conditions indicted in
media and advocacy accounts are a symptom
of the organizational failures documented in
governmental audits of ICE. To date, the solution
to ICE negligence has been limited to internal
checks.

53

CHAPTER IV:
new jersey
dollars &
sense
Morris County is an affluent New Jersey
community. Its median household income of
$92,000 is nearly double the national average.1
While statewide the number of white residents has
dipped since 2000, Morris County has seen a slight
increase. But the sharpest growth in the county has
been in the foreign-born population—from fifteen
percent in 2000 to nineteen percent in 2006.2
Morristown, the county seat, was home to George
Washington’s headquarters during the American
Revolution. The town made history again when, in
February 2007, its Democratic mayor was the first
in the Garden State to apply to ICE for a 287(g)
agreement. The ensuing debate polarized the
community. A local organization swiftly mobilized
a broad cross-section of leaders to educate elected
officials. Proponents of 287(g) were decisively
defeated when the Republican county sheriff
flagged a basic fact: The ICE program requires jail
beds, but does not pay for them.
The mayor of Morristown waged a vigorous
campaign for a 287(g) contract with ICE.
Donald Cresitello, the mayor of Morristown, is a
tenacious politician. He was first elected the town’s
mayor as a Democrat in 1978, serving until 1981.
He ran again in 1997 as a Republican, but lost in
the primary race. In 2005, he switched back to a
Democrat and won the post in a race dominated by
the issue of illegal immigration.3
In 2006, while the US Congress was in the
middle of debating a plan to overhaul the nation’s
immigration system, Cresitello stumbled upon
the 287(g) program. He suspected it could be a
novel way to make good on an election promise:
cracking down on day laborers and residential
overcrowding.4 Soon after his lawyers looked into

the program, Cresitello decided, “The tool was
important for law enforcement.”5 In February
2007, three months before the final push to pass
Comprehensive Immigration Reform failed in
Congress, Cresitello announced plans to deputize
ten officers with civil immigration powers.
The mayor was not a straightforward or traditional
xenophobe. He took pride in his daughter, a law
student at the Catholic Seton Hall University, who
was studying to defend the immigrant victims of
human trafficking. He said of illegal immigration:
This is another form of slavery. That’s all
it is. Here you have non-skilled labor
working at slave wages, being denied
benefits, decent housing, everything. You
think the employer gives a shit about
them? You think Archer Daniels Midland
cares? It’s just another form of the
sharecropper. It’s Big Business taking
advantage of poor people. My vision is
for the federal government to solve this
problem with a pathway to legalization.
If the federal government doesn’t do that,
then we need to go the way Arizona has
gone.6
But when Cresitello headed in that direction, the
move drew criticism from different corners: His
own police chief Peter Demnitz questioned the
need for the 287(g) program.7 Wind of the Spirit,
a community organization that worked to build
trust between police and Latino residents following
September 11, 2001, charged the mayor with
betrayal.8 Founding member Diana Mejia said,
“After so many years of working together, how
could they do this to us?”
Cresitello talked tough as he described his plans
to reporters, asserting that deputized police could
use civil immigration powers expansively against
day laborers, tenants in overcrowded apartments,
even jaywalkers. “The way I understand it, if they’re
stopped in conjunction with a violation, then you
would have the authority to look beyond that, to
look into the federal aspect of the violation … A
police officer has the discretion to decide when to
enforce any law. This is not different.” 9 He claimed
to have the popular mandate stating, “I can’t find

ICE
tttr&IRAHGIES

55

CHAPTER IV. New Jersey Dollars & Sense

people who are here who are legal residents who
would oppose me in general. Colombians that are
here for years and years say, ‘We don’t want those
people hanging out on the streets.’”10
The Colombian Consulate felt differently and sent
a letter of concern to ICE asking for clarification
about the program. ICE’s written response
contradicted Cresitello’s claims: “The 287(g)
program is not designed to allow state and local
agencies to perform random street operations. It is
also not designed to impact issues such as excessive
occupancy and day laborer activities.”11 Still, an
information vacuum grew around the mysterious
287(g) program and filled with rumors.12
A community-based organization worked
to influence decision makers publicly and
behind the scenes.
Wind of the Spirit (WotS) is a leading community
organization in Morristown focused on
immigration. Its members are no strangers to the
police department. When agencies around the
country stepped up identification requirements
following September 11, 2001, the group worked
out an agreement with the city to accept its
membership card as adequate ID.
Undocumented victims of crime would come to
the WotS office to meet with police and report
crimes. WotS gave cultural sensitivity presentations
for patrol officers and even recruited translators
to help police process Spanish-speaking arrestees.
According to founding member Diana Mejia, who
is also a community organizer with the American
Friends Service Committee, Mayor Cresitello
turned the tide. “We used to have this collaborative
relationship. Then the new administration killed it
with their politics of cleaning the town of ‘illegals.’”
In the summer of 2007, as ICE raids swept the
country, one raid landed in Morristown. WotS
member Pilar was among the undocumented
residents whose homes were targeted. The raid
reminded her of life in Guatemala decades ago, she
explained in her native Spanish:
On December 6, 1989, my husband was
disappeared. There was a lot of violence

56

that year. I don’t know what happened.
He probably was killed. A car came, a
grey one, and they took him at 6 p.m.
He was coming home from shopping in
another town.13
In 1996 she paid a coyote to come to the United
States. She came alone with a few belongings on her
back and a telephone number for a family friend in
South Carolina. When that number did not work,
Pilar followed a fellow traveler into New Jersey. She
soon sent for her children. They rebuilt a good life
in Morristown.
But Pilar’s memories of Guatemala came rushing
back on June 6, 2007:
They knocked on my door hard. I
opened it. They pushed the door in. They
didn’t look like police. There were in
plain clothes. One woman entered with a
gun. She wore a jacket that said I-C-E.
Just her. The other person, who spoke
Spanish, had jeans, no uniform. Another
tall man was at the open door. Those
three people were bad. They treated me
bad. The woman shoved the pistol in me.
I asked, “Why are you here? What are
you looking for?” I reached for the
phone. They pulled it out of the jack.
They pushed past me. I followed them up
the stairs. My son was in the bathroom.
He was practically naked. They saw the
tattoo on his arm. They said, “You’re a
gang member, aren’t you? AREN’T
YOU?”
ICE agents took Pilar’s son, Juan Carlos—a high
school student—into custody. Days before, a friend
had rubbed a temporary, water-based tattoo on his
arm. In immigration courts and the media, tattoos
are taken as a symbol of gang membership. But
Pilar refocused the issue. “They took him because
of the color of his skin, not the silly tattoo on it.”
He stayed in detention in Hudson County Jail,
another ICE-contracted facility, for the next three
months. The immigration judge set bail at $10,000.
“We couldn’t believe the amount,” Pilar explained.
“Everybody gave us a little bit. A thousand here,
two thousand dollars there. That’s how we put it
together.”

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

WotS leaders were looking for legal counsel to help
the raided families when Cresitello stepped up his
287(g) campaign with an anti-immigration rally at
city hall. The mayor later reflected that ICE activity
increased his interest in the program:
We are a center of activity that is more
likely to be a target of terrorism than any
other town in New Jersey. We need tools
that other towns don’t have. The plan
would be to work with ICE, to keep us
in the loop on investigations, so we
would be part of investigations. Rather
than having them come in on their own,
we would be in the loop. One of the
houses they raided, we were trying to get
in there for a year for stacking
violations.14

Anti-immigration protestor standing in the mayor’s camp of Morristown rally.
Photo by Stanley Rogouski.

The rally was intended as a media spectacle, with
organizers anticipating 1,000 protesters. Yet less
than 300 showed up—and half of them had come
to counter-protest.15 The truly glaring figure was
the $18,000 that the city paid in security costs.16
Police in riot gear formed a barricade that ran
the block. On the mayor’s side stood out-of-state
activists disgruntled with a recent defeat in the
courts against local immigration enforcement in
Pennsylvania.17 They were joined by members
of a white supremacist Internet forum called
Stormfront.18
Opposite the barricade were out-of-state activists
for open borders and a locally organized human
chain whose t-shirts spelled NO HUMAN BEING
IS ILLEGAL. Participants included members of
WotS, Christian ministers and lawyers. They stood
silently in protest. A Morristown native viewing the
scene recalled that the last time her town witnessed
such overt conflict was on July 4, 2000, when the
Nationalist Movement (a Mississippi-based white
supremacist organization) held a rally entitled
“Independence from Affirmative-Action Day.”19
For fear of deportation, WotS discouraged
undocumented members from attending the rally.
The group hosted a community forum in a local
church, where local residents attended to learn
about the 287(g) program and express concerns.
Over the length of the campaign the group held

Police in riot gear dividing the sides. Photo by Stanley Rogouski.

Immigrant rights organizer Diana Mejia caught crossing the line.
Photo by Stanley Rogouski.

57

CHAPTER IV. New Jersey Dollars & Sense

five forums and vigils that drew 2,000 people. They
also presented a petition against the ICE program
to the city’s political leadership, with more than
3,000 signatures collected.
But traditional protest tactics were only a piece
of the strategy. Using relationships built over the
years, WotS lobbied behind-the-scenes to get
meetings with key decision makers. In one meeting
with the Morris County Freeholders a diverse
delegation—including Pilar’s son Juan Carlos, a
local businessman, a local lawyer, a minister, and
legal experts from New York University School of
Law—came to express concern. Some attendees
referenced the importance of maintaining trust
between immigrants and the police. But the
conversation quickly turned to dollars and cents
when Mejia dropped a stack of papers, ten inches
thick, on the conference room desk. It outlined
potential lawsuits.20
Exercising due diligence WotS members also
requested a meeting with Mayor Cresitello. He
invited the group into his office on Christmas
Eve. The meeting began with a heated argument.
Following the ICE raids, WotS leaders had
held workshops to teach residents about their
constitutional right to see a judicial warrant
before admitting any law enforcement officer
into their homes. Nationwide, local organizations
in communities targeted by ICE raids educated
residents about the differences between civil and
criminal warrants, prompting mass resistance
to opening the door to ICE.21 Cresitello sharply
reprimanded Mejia. “You didn’t need to educate
them and tell them ‘Don’t open the door.’”22 She
retorted, “It’s the law. Shouldn’t we follow the law?”
Juan Carlos offered his story as a human example
of the cruel deportation system. The mayor
sympathetically offered to give him a letter of
support in immigration court. He also tried to put
Mejia’s concerns in perspective: “Just like Italians
were pushed out, African Americans and Latinos
will be pushed out.”

58

A technical requirement of the 287(g)
program—dedicated jail beds—disrupted the
mayor’s plan.
ICE officials injected a surprising twist in the
politicking when they revealed a basic requirement
of the 287(g) program: It requires a jail. ICE
does not just grant a local agency the privilege of
performing civil immigration arrests. It also confers
the duty of incarcerating each suspected noncitizen.
Morristown itself does not operate a jail. Cresitello
expressed his frustration: “I don’t think ICE should
be putting the requirement on me, that I find a jail
to hold our prisoners.”23 He turned to the Morris
County Freeholders, a legislative body that oversees
the county budget, to ask if the Morris County Jail
would donate beds to his immigration crackdown.
The Morris County Jail had lived through its own
controversy almost two decades prior. In the 1980s,
elected leaders decided that the county needed
to replace a fifty-year-old facility with a new and
bigger one. A decade-long battle ensued over
where to build it. No one wanted the jail in their
backyard. Former Freeholder Peter O’Hagan, who
headed a 1989 study on where to locate the new
facility, commented, “We went through hell on this
jail.”24
In 1995, a state judge finally settled the issue
by ruling that the county could build the jail in
Collinsville, home to forty percent of the county’s
Black families, against the residents’ claim of
environmental racism.25 The failed lawsuit starkly
contrasted with one already won by the county
against the state. In 1993 the Supreme Court of
New Jersey had ruled that the state could not solve
its problem of prison overcrowding by forcing
Morris County and others to house its prisoners.26
Opened in 1999, the new jail is a $32 million,
six-story facility with eight housing pods, 277
cells and the capacity to house 528 detainees.
Before its opening, the daily cost of incarceration
was estimated at $191.06 per person.27 Politicians
promised the community that they would not play
motel with the new space. It would be used strictly
for housing local arrestees subject to pre-trial or
short-term confinement.

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

The mayor argued that the 287(g) program was a
worthy exception. He turned to the Freeholders
for help and even suggested that the entire county
should get deputized by ICE. The Freeholders
politely turned to their sheriff for his expert
opinion.
In the face of ICE silence, the Republican
sheriff conducted an investigation of the
287(g) program.
Sheriff Edward Rochford is not an open border
activist. He was an ardent supporter of John
McCain during each of his failed presidential runs.
He sized up Morristown’s chief executive affably.
“I grew up with Mayor Cresitello. I know him. We
are friends. He wants to go after day laborers and
people stacking” in overcrowded apartments.28
Rochford is a fiscal conservative always on the
lookout for new funding streams. Before the
new Morris County Jail opened he had asked the
Freeholders to approve a contract with federal
authorities to house federal immigration detainees
because the estimated annual payment of $10
million would offset jail construction costs.29 The
Freeholders declined.
In 2003, the sheriff enrolled Morris County Jail
in the State Criminal Alien Assistance Program
(SCAAP). Managed by the Bureau of Justice
Assistance in Washington, DC, the program
reimburses local and state facilities for part of the
cost of incarcerating local arrestees who are noncitizens. Morris County has received a total of
$2.1 million in SCAAP payments through end
of 2008.30 Yet in 2004, when Sheriff Rochford
approached the Freeholders about another contract
offer to house federal prisoners for per diem
payment, they turned it down.31
This time, the intractable Freeholders were
approaching the sheriff. He was ready to find out
how the 287(g) program could benefit his bottom
line. He submitted a long list of questions to ICE
officials. To his surprise, Rochford recounts, ICE
was not eager to help.
We had a meeting with ICE reps in
Newark. They were very nice, but

wouldn’t answer our questions. I
thought, “If they are like that prior to us
signing on, what would they be like
after?” You know the only question ICE
answered? I asked if we were sued, by a
group, the inmate or family, who defends
us? They said, “Oh, we give you govern­
ment attorneys.” But typically on a
lawsuit two parties are named: the
government title and the individual
officer. They only represent the title. So
who represents me as an individual? They
said, “We only do the title, not the
individual.” So we’re talking about
$80,000 in legal fees that my family
pays!32
After the meeting, Rochford set out to further
investigate the program: What authority did it
grant? What was the supervisory structure? How
did funding work? Would ICE legally indemnify
the sheriff and his employees? He commented:
Most sheriffs go into this blindly. When
you buy a house or a car, you read what
you’re signing. The same principle applies
here. The sheriffs who are against it say,
“Why waste resources when the feds
aren’t doing their job?” Some do it for
political purposes. Usually it’s money or
publicity.33
Given the chronic errors in ICE databases,
Rochford worried that American citizens could sue
for being wrongfully categorized as immigrants.
His eyebrows raised even higher after interviewing
authorities in neighboring Passaic County.
Passaic County was among the private and public
correctional agencies that had signed an intergovernmental service agreement with ICE to house
civil immigration detainees under a contract that
would pay “per diem” expenses for each prisoner.
In the wake of September 11, 2001, public scrutiny
of Passaic’s contract grew with civil rights groups
clambering at the jail gates in protest for detainees’
human rights.34 While 287(g) is a different ICE
devolution program, Rochford thought his
neighbor’s experience with the feds could prove
instructive.

59

CHAPTER IV. New Jersey Dollars & Sense

Passaic County’s warden told Rochford that five
pro-immigrant demonstrations had cost his jail
$50,000 for riot control teams; patrols for the
jail’s interior and the demonstration area outside;
mounted police for crowd control; undercover
agents to photograph demonstrators; and sniper
units for lethal force protection.35 The county spent
another $200,000 in litigation costs in response
to detainees’ lawsuits, while ICE secured its own
dismissal from these lawsuits by way of motion in
federal court.
Discrepancies between state and federal rules on
holding detainees proved volatile. For example,
sheriffs interpret the New Jersey Administrative
Code to allow officers to use dogs to search and
control prisoners.36 But, ICE detention standards
explicitly forbid the use of canine force against civil
detainees. Passaic jailers followed the state code,
even after contracting with ICE. In November
2004, National Public Radio broadcast an exposé
on the treatment of ICE detainees in the Passaic
County Jail, charging that guards were taunting
and beating detainees, and terrorizing them with
dogs.37 In 2006 the Department of Homeland
Security’s inspector general launched his own
investigation of the jail. Passaic officials complained
that auditors were intrusive. Their final report
indicted Passaic for rampant detainee abuse.38 On
the verge of losing the ICE contract, the Passaic
sheriff terminated it himself.
Sheriff Rochford reflected on the aftermath.
“Passaic really suffered from its work with ICE.
It became so reliant on immigration money, now
that it’s done, they have to lay off officers.”39 He
also considered that even if ICE offered Morris
County a separate contract for housing detainees,
the purported federal reimbursement rate of $95
per day was too low given the relatively high cost of
incarceration for any jail in the Northeast US.40
Given personnel, overhead, and indirect costs,
Sheriff Rochford suspected that signing a 287(g)
contract was essentially handing a blank check to
ICE. The County Administrator John Bonnani
echoed, “ICE tries to make [287g] sound like
the greatest thing since sliced bread. But there’s

60

21 county jails and none of them have signed up.
Why? I think the feds just want jail space.”41
Sheriff Rochford compiled his findings in a fifteenpage report to the Freeholders.42 Just to be certain
he had portrayed the details correctly, he asked ICE
officials to review the draft:
We gave ICE the option of proofreading
our report. They didn’t respond! We said,
“You can check it. Please just don’t
change anything factual.” How do you
not take that type of offer? And while
you are asking me to come on board! In
our report, we spoke with many experts.
But ICE was the single most influential
source because they did nothing.43
In the face of ICE silence during the research
process, Mayor Cresitello submitted a set of
“Anticipated Answers” to each of the questions the
sheriff had posed to ICE officials. In his own report,
Sheriff Rochford cautioned Cresitello’s document
should not be relied upon for guidance.
We do not believe it would be prudent to
use answers that we are unsure are correct
and of which the origin is unknown. We
also do not understand how Morristown
is privy to an “Anticipated Answer” when
we are still awaiting a response from
ICE.44
The final report, unedited by ICE, includes an
estimate that to have the capacity to house 60 civil
detainees, the county would pay $1.3 million in
personnel and facility start-up costs. The lack of
ICE funding for basic costs was noted in boldface:
“ICE would not reimburse the County for
any start up costs such as those mentioned.”
Collateral expenses such as lawsuits or security
against protesters could not be accurately projected.
The 287(g) program did not appear to serve
any public safety mandate.
ICE claims that the 287(g) program is an essential
tool for capturing “criminal illegal aliens.”45 Yet
in Morristown, no one persuasively made the
case that immigrants are a strategic target group.
Even Mayor Cresitello fell short of making a

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

public safety argument. “If we had a 287(g) in
Morristown, there’s no question that people would
be frightened. They’d leave the community. Do
I say all illegals leave? No. I just say, ‘Get out of
Morristown. Go to Dover!’”46
Sheriff Rochford said that the anticipated fallout
from the Morris County sheriff’s report was no
more than a trickle. “We got four letters blasting
us for not doing it. We sent them the report.
Three retracted.”47 According to his warden, Frank
Corrente, in the eighteen months preceding
Rochford’s investigation only one percent of 4,500
jail admissions were foreign born.48 Without 287(g)
authority, jail officers reported each one to ICE.
ICE agents visited the facility and placed a federal
warrant on any detainee, legal or undocumented,
who may be deportable.49
Sheriff Rochford concluded that 287(g) was simply
unnecessary. “You can’t put a dollar amount on
safety, but the system is working. Why expose
officers to undue liability? New Jersey taxes are
already so high. 287(g) would hit the taxpayer.
When are we going to have our own Boston Tea
Party?”50

partnership once more in January 2007. Without
a jail to hold civil immigration arrestees, Cresitello
lost his bid to bring 287(g) to Morristown. He
moved on to launch a political campaign for the
US Senate, hoping to unseat incumbent Frank
Lautenberg. His anti-immigration platform did
not carry him past the Democratic primary.
Meanwhile, Robb Pearson—the lead organizer
of Morristown’s pro-287(g) rally—made a 180degree turn, repenting for his activism in an open
letter to the Morris County Daily Record. “I had
allowed myself to be overly influenced by toxic
super-nationalism, which was underscored by
exclusionary and bigoted political viewpoints using
the logic of ‘rule of law’ as a justifying façade.”52
Juan Carlos, the high school student picked up
in the ICE raids, was deported to Guatemala in
September 2008. His living family remains in
Morristown.

Conclusion
In August 2007 New Jersey Governor Jon Corzine
created his state’s first “blue ribbon” commission
on immigration. At the inauguration, the chairman
criticized Morristown’s “flurry” of anti-immigrant
action.
…For every Hightstown, a town that is
welcoming and embracing its newest
residents, there is a Morristown, where
an attempt to federally deputize the local
police to enforce civil immigration
violations, is creating division, spurring
resentment and making segments of the
population feel unsafe and reluctant to
report crimes for fear of deportation. For
this very reason, we cannot have each of
our 566 municipalities creating separate
immigration policies.51
The Morris County Freeholders saved the city
from statewide disgrace when they rejected federal

61

RECOMMENDATIONS
We cannot put a price tag on safety. But American citizens should not be obliged to pay for specious
federal programs. Nor should we allow the operations of our criminal justice system to be highjacked by a
broken immigration system. Our broken immigration system must be fixed, not burdened with avoidable
dead weight. To address the harms that the 287(g) program has already inflicted on public safety and local
democracy, we recommend:
The Obama Administration should terminate the 287(g) program.
Day laborers and drivers of color make poor law enforcement targets. The 287(g) program amounts to a
local and state bailout of the failed federal immigration enforcement business. It has taken the handcuffs
off local law enforcement by giving them civil arrest powers, while at the same time distracting them from
their core public safety mission. The program fails to strike the correct balance between safety and rights. It
has harmed US citizens of color, disrupted the operation of the criminal justice system, and burdened US
taxpayers with unnecessary costs. The 287(g) program must be terminated immediately.
The US Government Accountability Office should investigate the 287(g) program.
The GAO should conduct a thorough investigation of the 287(g) program to determine how its operations
have impacted public safety; and how much local, state, and federal tax monies have been used for its
implementation. Critical questions include: How did ICE determine which agencies would be deputized
and what civil immigration powers to include in each contract? How did ICE personnel comply with the
federal requirement to “supervise and direct” each participating agency? Which localities violated the terms
of their contract and precisely what violations have occurred? Who are the 70,000-plus immigrants arrested
under the program? And, how has the program diverted resources from critical needs such as community
policing?
ICE asserts that it has already conducted an internal investigation of all 287(g) contracts and has found
no errors. Documented abuses from Maricopa County, Arizona, to Prince William County, Virginia, tell
another story. ICE itself cannot be charged with investigating its own errors. Thorough documentation of
the poor performance of this program will provide essential feedback for reform efforts undertaken at ICE
and the Department of Homeland Security under the new administration. An independent assessment is
urgently needed.
The Justice Department should investigate the 287(g) program.
The Civil Rights Division of the Department of Justice should investigate the 287(g) program for violation
of the executive order banning racial profiling. Deputized agencies appear to have systemically violated
the 287(g) contract obligations on record keeping. Widespread “crime suppression sweeps” in Maricopa
County and documented cases of racial profiling throughout the country warrant an investigation of the
program’s compliance with the US Constitution, particularly the equal protection clause of the Fourteenth
Amendment and the Fourth Amendment ban on arrest without probable cause. Following a criminal
arrest an arrestee typically can file a lawsuit to challenge constitutional violations. But victims of unlawful
civil immigration arrests have a legal and practical barrier to suing: They are deported. The Department of
Homeland Security should adopt the ban on all racial profiling set by the Department of Justice.

ICE
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RECOMMENDATIONS

Congress should require a racial impact analysis before authorizing new immigration law
enforcement programs.
In the twenty-first century, noncitizens in the U.S. are increasingly people of color. Immigration law
enforcement efforts, while not intentionally based on race, have a disproportionate impact on people of
color, including US citizens. The 287(g) program in Maricopa County, for example, has clearly enabled
racial profiling. Given the nexus between migration status and skin color, the federal government must
conduct a racial impact analysis of any immigration enforcement efforts before implementing them.
Congress should create mandatory, meaningful reporting requirements for monitoring all ICE
operations.
Facing a global fiscal crisis, the United States cannot afford wasteful spending. The ICE budget, which has
grown more than 200 percent since the agency’s inception in 2003, is not above public scrutiny. ICE is a
novel agency with a complicated mission. Internal reports conducted by the Office of the Inspector General
indicate that ICE routinely fails to collect critical data needed to analyze its own performance and impact.
The 1996 immigration reforms made prosecutorial power the cornerstone of the immigration enforcement
system. ICE has extraordinary power to create programs and exercise discretion. ICE does not disclose how
it chooses state and local partners in its various devolution programs and does not adequately report on
their operations. Holes in data collection are detrimental to the most basic external oversight of the public
agency. Congress should require ICE to systematically document and disclose detailed data related to the
implementation and impact of all its programs.

64

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

appendices
Appendix A: Crime in Focus
State

Jurisdiction

Florida
Nevada
North Carolina
Florida
Oklahoma
Tennessee
Arizona
Forida
California
South Carolina
New Mexico
South Carolina
Colorado
Texas
Missouri
Florida
Virginia
Arizona
Arizona
Florida
Florida
USA
Georgia
Arkansas
Massachusetts
Alabama
Arizona
California
Colorado
Virginia
Georgia
California
North Carolina
Arkansas
Arizona
Massachusetts
Texas
Arizona

Manatee County
Las Vegas
Durham
Jacksonville
Tulsa County
State
Phoenix
State
Los Angeles County
Beaufort County
State
York County
El Paso County
Harris County
State
Bay County
City of Manassas
State
State
Brevard County
Collier County
nationwide
State
Springdale
State
State
Yavapai County
Riverside County
State
Fairfax County
Whitfield County
San Bernardino County
Cumberland County
Washington County
Maricopa County
Framingham
Farmers Branch
Pinal County

Violent Crimes
Index
(2006)
1,023.3
982.9
936.7
837.2
815.9
760.2
737.8
712
682.9
646.4
643.2
622.7
604.6
578.6
545.6
535.8
521.8
501.4
501.4
491.6
477.4
473.5
471
462.3
447
425.2
415.1
392.8
391.6
387.7
380.1
354.8
353.6
295.6
264.3
249
238.6
238.1

Property Crimes
Index
(2006)
4,850.3
4,667.4
5679.4
5,416.2
3,126.7
4128.3
5934.3
3986.1
1885.3
3,518.8
3937.2
2,775.6
1635.6
3,300.6
3826.5
3158.8
3181.1
4627.9
4627.9
2,517.5
1873.2
3334.5
3889.2
4305.6
2391
3936.1
1996.8
2982.6
3451.3
2199.8
3490.5
2110.6
3124.9
1698.3
2082.4
2,400.3
4,376.2
4058.8

Violent Crimes
Index Change
(2000 - 2006)
13.2%
64.2%
-5.1%
-25.0%
30.9%
7.5%
-0.1%
-12.3%
-28.3%
-14.8%
-15.1%
-7.8%
187.1%
31.4%
11.3%
-11.3%
34.8%
-5.7%
-5.7%
-16.9%
-20.2%
-6.5%
-6.7%
99.7%
-6.1%
-12.5%
3.9%
-22.6%
17.2%
44.8%
126.0%
-1.7%
-26.6%
0.9%
-3.4%
36.6%
-20.0%
-66.1%

Property Crimes
Index Change
(2000 - 2006)
21.7%
20.6%
-27.0%
-7.1%
-2.1%
-1.3%
-10.7%
-18.4%
1.1%
-18.8%
-17.3%
-16.9%
-8.7%
10.0%
-5.2%
-24.2%
-13.7%
-12.6%
-12.6%
-17.3%
-44.1%
-7.8%
-8.4%
29.9%
-6.2%
-3.0%
-36.1%
32.8%
-5.4%
-28.5%
3.4%
-5.4%
-20.1%
114.8%
-6.1%
42.6%
-10.0%
58.7%
continued next page

MICE
tttr&IRAHGIES

65

APPENDICES

Appendix A: Crime in Focus (continued)
State

Jurisdiction

Virginia
Arizona
North Carolina
Arkansas
Arkansas
California
Texas
Georgia
North Carolina
North Carolina
New Hampshire
Maryland
Virginia
Ohio
North Carolina
Virginia
Alabama

Prince William County
Pima County
Alamance County
Rogers
Benton County
Orange County
Carrollton
Hall County
Henderson County
Wake County
Hillsborough County
Frederick County
Loudoun County
Butler County
Cabarrus County
Rockingham County
Etowah County

Violent Crimes
Index
(2006)
235.6
228.4
214.2
206.5
195.8
187.7
187.3
159.5
130
116.8
105.4
88.2
79.7
75.3
56.4
46.3
6.4

Property Crimes
Index
(2006)
2167.9
3989.2
2110.7
5152.8
1416.6
1186.3
3,093.9
2208
1744.1
1588.1
1,650.4
1,021.5
1364.1
1,414.1
2119.8
540
801.7

Violent Crimes
Index Change
(2000 - 2006)
16.4%
-14.1%
41.9%
1.5%
143.2%
4.2%
-1.3%
Not Available
33.2%
-18.0%
51.0%
47.5%
-50.1%
-40.8%
-39.5%
63.6%
-96.3%

Property Crimes
Index Change
(2000 - 2006)
-16.0%
20.4%
10.1%
45.9%
196.4%
-9.6%
-3.2%
Not Available
5.8%
-20.6%
12.3%
11.8%
-32.6%
3.2%
15.4%
-5.7%
-33.3%

Source: Federal Bureau of Investigations 2000-2006
Note: Includes only those jurisdictions for which crime data is available.

Appendix B: Race in Focus
State

Jurisdiction

Latino Population Growth (2000 – 2006)

Virginia
Virginia
Maryland
Arkansas
South Carolina
North Carolina
Arkansas
North Carolina
North Carolina
North Carolina
North Carolina
Ohio
North Carolina
Texas
Georgia
Georgia
Florida
Georgia
Florida
Tennessee

Loudoun County
Prince William County
Frederick County
Benton County
York County
Cabarrus County
Washington County
Wake County
Mecklenburg County
Gaston County
Alamance County
Butler County
Henderson County
Denton County
Hall County
Cobb County
Collier County
State
Manatee County
Davidson County

159.7%
150.3%
147.4%
100.1%
95.4%
92.1%
86.0%
84.4%
81.1%
80.2%
72.2%
71.8%
67.8%
63.5%
62.1%
61.3%
61.0%
60.0%
58.4%
58.0%
continued next page

66

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Appendix B: Race in Focus (continued)
State

Jurisdiction

Latino Population Growth (2000 – 2006)

North Carolina
Florida
Nevada
Arizona
South Carolina
Oklahoma
California
Florida
Florida
Alabama
Tennessee
Arizona
Arizona
Georgia
Alabama
Virginia
Arizona
California
Florida
Missouri
Texas
Arizona
Massachusetts
Colorado
Colorado
USA
Arizona
Massachusetts
California
New Mexico
California
Massachusetts
North Carolina

Durham
Brevard County
Las Vegas
Yavapai County
Beaufort County
Tulsa County
Riverside County
Jacksonville
Bay County
Etowah County
State
Pinal County
Maricopa County
Whitfield County
State
Rockingham County
State
San Bernardino County
State
State
Harris County
Phoenix
Barnstable County
El Paso
State
nationwide
Pima County
State
Orange County
State
Los Angeles County
Framingham
Cumberland County

57.4%
56.8%
54.2%
54.1%
53.7%
53.3%
52.9%
52.9%
52.5%
51.7%
51.6%
49.1%
48.0%
47.7%
46.9%
42.5%
39.2%
37.2%
35.8%
35.7%
32.6%
30.8%
27.3%
27.0%
27.0%
25.3%
24.3%
19.1%
12.8%
12.5%
11.0%
7.5%
-23.4%

Source: US Census 2000-2006
Note: Includes only those jurisdictions for which census data is available.

67

CHAPTER I. 287(g) A Pilot Project in Devolution

endnotes
CHAPTER 1. 287(g): A Project in Devolution
1 See: “Re: Non-preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for

Immigration Violations” [memorandum]. Office of Legal Counsel, Department of Justice (3 Apr. 2002). A heavily
redacted copy was provided to the American Civil Liberties Union in July 2005, in response to a lawsuit under the
Freedom of Information Act.
2 “Re: Handling of INS Warrants of Deportation in Relation to NCIC Wanted Person File” [memorandum]. Office
of Legal Counsel, Department of Justice (11 Apr. 1989). The 1989 opinion states, “Because not everyone for whom
a warrant of deportation is outstanding has violated a criminal law, we believe that a warrant of deportation fails to
constitute a sufficient basis for including in the NCIC Wanted Person File all persons subject to such a warrant.” The
NCIC database is accessed by local police to see if a person stopped has any outstanding warrants. The 2002 Office
of Legal Counsel opinion cited in endnote 1 reverses the 1989 opinion.
3 There are two legal regimes that govern noncitizens within the United States: immigration laws that articulate the
power of government to determine membership; and domestic laws that determine the rights of territorially present
persons. The proper jurisdiction of each regime appears as a battle between “separation” and “convergence” models.
The convergence model advocates powerful membership regulation and, treating alienage as a morally relevant
status, recognizes formal rather than sociological community ties. The separation model limits the moral relevance
of alienage and instead emphasizes individual rights. The community’s right to control immigration is just one part
of an ongoing relationship between the individual and the polity. See: Bosniak, Linda S. Membership, Equality, and
the Difference that Alienage Makes. 69 N.Y.U. L. Rev. 1047 (1994). Bosniak also points to how the debate between
separation and convergence is not the same as that between nationalism and communitarianism, as the former
one agrees that the nation-state, by policing citizenship, protects liberal values. See: Bosniak, Linda S. Citizenship
Denationalized. 7 Ind. J. of Global Legal Stud. 447 (2000).

Peter Schuck posits that there exists a harmful dialectical relationship between open-door communitarianism and
exclusionary nativism that only efficient immigration machinery can sedate. In order for the concept of citizenship to
be meaningful, the institution must be limited and protected by the state. See: Schuck, Peter H. The Transformation
of Immigration Law. 84 Colum. L. Rev. 1, 1 (1984).
4 For an excellent history of restriction in US immigration law, see: Ngai, Mai. Impossible Subjects: Illegal Aliens

and the Making of Modern America. Princeton, NJ: Princeton University Press, 2004.

5 Fong Yue Ting v. United States, 149 U.S. 698 (1893).
6 Demore v. Kim (01-1491), 538 U.S. 510 (2003).
7 See Simon, Jonathan. Governing Through Crime: How the War on Crime Transformed American Democracy

and Created a Culture of Fear. New York: Oxford University Press, 2007. Simon argues that unlike most European
countries, the United States manages risk by developing a crime strategy to reduce it—that is, by codifying the
underlying behavior into the penal code and investing in its criminal prosecution.
8 Under former President Bill Clinton immigration law prosecutions doubled from 1996 to 2000. Immigrants

became the fastest growing segment of the federal prison population. The total length of incarceration for an
immigration felony conviction spiked, from about four months in 1985 under the Reagan Administration to twentyone months in 2000. See: Bureau of Justice Statistics. Special Report: Immigration Offenders in the Federal Criminal
Justice System, 2000. Washington: Department of Justice, August 2002. Available at http://www.ojp.usdoj.gov/bjs/
pub/pdf/iofcjs00.pdf.
Under the Bush Administration immigration offenses became the largest category of federal prosecutions. Referrals
climbed sixty-five percent, from just under 24,000 in fiscal year 2003 to almost 40,000 in fiscal year 2004. In
the same period, prosecutions rose eighty-two percent, from almost 21,000 to just below 38,000. The increase in
convictions was similarly up, from 18,000 to 31,000. Immigration-related offenses now account for one-third of
federal prosecutions—the largest single group, exceeding even drug enforcement (which now comprises about a

ICE
tttr&IRAHGIES

69

ENDNOTES

quarter of the federal prosecution caseload). See: Transactional Records Access Clearinghouse. Prosecution of Immigration
Cases Surge in U.S. 2005. Syracuse, NY: Syracuse University, 2005. Retrieved 22 July 2008, from http://trac.syr.edu/tracins/
latest/131/.
9 On the expansion of executive powers following September 11th, see: Chang, Nancy. Silencing Political Dissent: How Post-

September 11 Anti-Terrorism Measures Threaten Our Civil Liberties. New York: Seven Stories Press, 2002.

10 Simon, Jonathan. Personal interview by Aarti Shahani and Judith Greene. 21 Mar. 2008. On file with authors.
11 Georgetown University law professor David Cole summarized his legacy, “We had an attorney general who treated criticism

and dissent as treason, ethnic identity as grounds for suspicion and Congressional and judicial oversight as inconvenient
obstacles … He was a disaster from a civil liberties perspective but also from a national security perspective.” See: Bumiller,
Elisabeth. “Ashcroft Quits Top Justice Post; Evans Going, Too.” New York Times 10 Nov. 2004. Retrieved 30 Aug. 2008
http://www.nytimes.com/2004/11/10/politics/10cabinet.html.
12 �������������������������������������������������������
See, for example, Schuck,
�������������������������������������
Peter H., and John Williams. Removing Criminal Aliens: The Pitfalls and Promises of

Federalism. 22 Harv. J.L. & Pub. Pol’y 367, 374 (1999). Meanwhile, other skeptics of the plenary power doctrine believe
that immigration is an inherently federal function. See: Motomura, Hiroshi. Federalism, International Human Rights, and
Immigration Exceptionalism. 70 U. Colo. L. Rev. 1361 (1999). Motomura argues������������������������������������������
that as the plenary power doctrine grows
�����������������������������������������
obsolete in immigration, the foundations of immigration exceptionalism, which legislates against judicial review in removal, are
crumbling. The fact that constitutional norms increasingly define immigration jurisprudence has two seemingly contradictory
implications: Lawmakers ought to end immigration exceptionalism against judicial review and give each immigrant a hearing;
meanwhile the government should not end immigration exceptionalism with regard to federalism because the US traditionally
defines itself as a nation through its newcomers.
13 Since 2006 the National Conference of State Legislators has monitored this movement. See regularly updated reports at

http://www.ncsl.org/programs/immig/index.htm. Last visited 8 July 2008.

14 See: Kretsedemas, Phil. “What Does an Undocumented Immigrant Look Like? Local Enforcement and the New Immigrant

Profiling.” Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today. Eds. David C. Brotherton,
and Philip Kretsedemas. New York: Columbia University Press, 2008. Kretsedemas summarizes the movement for inherent
authority from 2002 through 2006 including the REAL ID Act enacted in 2005, along with the proposed CLEAR Act and
HR 4437. He argues that responses against locally driven immigration enforcement are fractured, taking on only the most
egregious violations without an overt analysis in opposition to the fundamental premise of devolution.

15 In 1996 lawmakers were overhauling death penalty, prisoner, welfare, and immigration systems. States criticized the feds for

the latter’s failure to close our physical borders. Some sued for the costs of educating, medicating and incarcerating legal and
undocumented immigrants. See,
���������������������������������������������������������������
for example: Schuck,
���������������������������������������������
Schuck, Peter H., and John Williams. Removing Criminal Aliens: The
Pitfalls and Promises of Federalism. 22 Harv. J.L. & Pub. Pol’y 367, 374 (1999).

16 See: Subhash, Kateel, and Aarti Shahani. “Families for Freedom, Against Deportation and Delegalization.” Keeping Out the

Other: A Critical Introduction to Immigration Enforcement Today. Eds. David C. Brotherton, and Philip Kretsedemas. New
York: Columbia University Press, 2008.
17 See: Powers of Immigration Officers and Employees, INA § 287(g) (1996), 8 U.S.C. § 1357(g). See also: Standards for

Enforcement Activities for Regulations Which Further Define and Curtail Immigration Officers’ Powers, 8 CFR § 287.8.
18 Powers of Immigration Officers and Employees, INA § 287(g) (1996), 8 U.S.C. § 1357(g).
19 Comments of Senator Orrin Hatch, in: Re-Create a Meltdown. 104th Cong. 2nd sess., S11504 (1996).
20 See: 8 U.S.C. § 1357 (5)(B)(iii).

21 Center for Immigration Studies. Immigration Enforcement Disrupts Criminal Gangs in Virginia: State Should Expand

Involvement of Local LEAs. Washington: Center for Immigration Studies. January 2008. Available at www.cis.org.

22 A former commissioner of the federal immigration authority under Bill Clinton argued that along with prosecutorial power

comes the obligation to exercise prosecutorial discretion. She described prosecutorial discretion in a memo to her agency’s
directors, enforcement officers, and attorneys writing, “Service members are not only authorized by law but expected to
exercise discretion in a judicious manner at all stages of the enforcement process—from planning investigations to enforcing
final orders—subject to their chains of command and to the particular responsibilities and authority applicable to their specific

70

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

position.” Her memo outlined basic factors to consider in granting discretion, such as community ties, humanitarian concerns,
honorable military service, and the agency’s limited enforcement resources. See: Meissner, Doris. “Exercising Prosecutorial
Discretion” [memorandum]. Washington: Immigration and Naturalization Service, Department of Justice. 17 Nov. 2000.
23 INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). Lawyers and scholars argue that now that violations are widespread,

the exclusionary rule should apply. See, for example: Aldana, Raquel E. Of Katz and Aliens: Privacy Expectations and
the Immigration Raids. 41 U.C. Davis L. Rev. 1081 (Feb. 2008). See also: Burch, Stella Jane. “Good Reason to Believe”:
Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza.
2008 Wis. L. Rev. 6 (2008). The 9th Circuit ruled in favor of extending the exclusionary rule to civil immigration proceedings
in a case where immigration agents forcefully entered a home without a judicial warrant. See: Lopez-Rodriguez v. Mukasey, 536
F.3d 1012 (9th Cir. 2008).
24 See: Cole, David. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. New York: The
New Press, 2004.
25 Bureau of Justice Statistics. Prisoners in 2006; Prisoners in 2007. In Prison Statistics. Web. 2007. Available at http://www.

ojp.gov/bjs/prisons.htm.

26 INA § 236(c) (1996), 8 U.S.C. § 1226(c). Categories subject to mandatory detention include “arriving aliens” and those

“released” from criminal custody. After the 1996 laws were enacted and before September 11, 2001, both the legislative and
judicial branches revisited the wisdom of the laws’ detention and deportation provisions. The Supreme Court ruled that
indefinite civil detention is unconstitutional. See: Zadvydas v. Davis, 533 U.S. 678 (2001). The bipartisan Fix ’96 campaign
included legislative proposals to repeal the mandatory deportation and detention provisions. See, for example: H.R. 4966,
Restoration of Fairness in Immigration Law Act of 2000. 106th Cong., 2nd sess. (26 July 2000). See also: H.R. 1485, Family
Reunification Act of 1999. 106th Cong., 1st sess. (20 Apr. 1999); and H.R. 5062, To establish the eligibility of certain aliens
lawfully admitted for permanent residence for cancellation of removal under section 240A of the Immigration and Nationality
Act. 106th Cong., 2nd sess. (27 July 2000).
27 Office of Inspector General. Detention and Removal of Illegal Aliens. Washington: Department of Homeland Security,

April 2006. The report notes that the increase in the mandatory detention population limits the agency’s ability to use
discretion-based detention in non-mandatory cases.

28 Attorney General John Ashcroft also caused controversy when he removed judges from the administrative bench who,
he charged, took cases with “no colorable grounds for appeal” and thereby delayed review of urgent matters. He overhauled
the decision-making structure of the Board of Immigration Appeals, the appellate body of the immigration court system,
and reduced the number of judges from twenty-three to eleven. See: Executive Office for Immigration Review. Board of
Immigration Appeals. AG Order No. 2609–2002, Procedural Reforms to Improve Case Management [EOIR No. 131].
Washington: Department of Justice, 26 Aug. 2002. Retrieved 30 Nov. 2008, from http://www.usdoj.gov/eoir/vll/fedreg/2002_
2003/fr26aug02.pdf.
29 Chertoff, Michael. “Letter to Senator Christopher J. Dodd.” Washington: Department of Homeland Security, 14 June
2007. On file with authors.
30 See: Appleseed. Forcing Our Blues into Gray Areas: Local Police and Federal Immigration Enforcement. A Legal Guide

for Advocates. Washington: Appleseed Network, Jan. 2006: 30. For an excellent summary of the Florida Department of Law
Enforcement Pilot Program, see: Little, Cheryl and Kathie Klarreich. Post 9/11 Scapegoating of Immigrants. Miami: Florida
Immigrant Advocacy Center, Apr. 2005, 50-54.
31 Immigration and Customs Enforcement. Factsheets: Delegation of Immigration Authority Section 287(g) Immigration and

Nationality Act. Washington: Department of Homeland Security, 6 Sept. 2007.

32 See: Bureau of Labor Statistics. Career Guide to Industries, 2008-09 Edition. Washington: U.S. Department of Labor,
12 Mar. 2008. Retrieved 31 Jan 2009, from http://stats.bls.gov/oco/cg/cgs042.htm; and Bureau of Justice Statistics. “Justice
System Employment and Payroll.” Sourcebook of Criminal Justice Statistics Online. Washington: Department of Justice, 2009.
Retrieved February 4, 2009, from http://www.albany.edu/sourcebook/pdf/t1172006.pdf.
33 Immigration and Customs Enforcement. Factsheets: Delegation of Immigration Authority Section 287(g) Immigration and
Nationality Act [updated]. Washington: Department of Homeland Security, 18 Aug 2008.

71

ENDNOTES

34 Immigration and Customs Enforcement. Factsheets: Delegation of Immigration Authority Section 287(g) Immigration and

Nationality Act. Washington: Department of Homeland Security, 6 Sept. 2007.

35 Immigration and Customs Enforcement. ICE Strategic Context. Washington: Department of Homeland Security, 2009. 6.
36 Office of Inspector General. An Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations

Teams. Washington: Department of Homeland Security, March 2007.

37 Immigration and Customs Enforcement. Factsheets: Delegation of Immigration Authority Section 287(g) Immigration and

Nationality Act. Washington: Department of Homeland Security, 6 Sept. 2007.

38 While the undocumented population doubled from 1994 to 2004, data from the Bureau of Justice Statistics indicates that

the US witnessed a sharp drop in both violent and property crime rates. See: Bureau of Justice Statistics. Reported Crime in the
United States—Total [1960 to 2007]. In Data Online: Crime Trends. Web. Retrieved 30 Jan 2009. Available online at http://
bjsdata.ojp.usdoj.gov/dataonline/Search/Crime/State/statebystaterun.cfm?stateid=52.
A study by the conservative Americas Majority Foundation finds that crime rates are lowest in states with the highest growth
rates of immigrants. See: Nadler, Richard. Immigration and the Wealth of States. Overland Park, KS: Americas Majority
Foundation, Jan. 2008: 9. Available at http://www.amermaj.com/ImmigrationandWealth.pdf. Another study finds that US
incarceration rates among young men are lowest for immigrants. In 2000 the 3.5 percent incarceration rate for native-born
men ages eighteen to thirty-nine was five times higher than the 0.7 percent rate for foreign-born men. See: Immigration Policy
Center. The Myth of Immigrant Criminality and the Paradox of Assimilation: Incarceration Rates among Native and ForeignBorn Men. Washington: American Immigration Law Foundation, Spring 2007. Available at http://www.immigrationpolicy.
org/images/File/specialreport/Imm%20Criminality%20(IPC).pdf.
One journalist in Arizona suggested that media played a key role in propagating myths about immigrant criminality. See:
Kiefer, Michael. “Media Coverage May Be Feeding Illegal-Immigrant-Crime Beliefs.” Arizona Daily Star 9 Apr. 2007.
Retrieved 14 July 2008, from http://www.azstarnet.com/metro/177523.php.
39 Crowley, P.J. Personal interview by Aarti Shahani. 31 Oct. 2008. On file with authors.
40 For excellent summary of initial law enforcement objections to the 287(g) program, see: Appleseed. Forcing Our Blues

into Gray Areas: Local Police and Federal Immigration Enforcement. A Legal Guide for Advocates. Washington: Appleseed
Network, Jan. 2006. See also: Harris, David. The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale
of Police Power in Post-9/11 America. 38 Rutgers L. J. (Fall 2006).
41 See the adopted “Nine Point Position Statement” in Major Cities Chiefs Association. Immigration Committee

Recommendations for Enforcement of Immigration Laws by Local Police Agencies. Sun Valley, ID: Major Cities Chiefs, June
2006. Retrieved 30 Dec. 2008, from http://www.houstontx.gov/police/pdfs/mcc_position.pdf.
42 Paliga, Gailya. “Letter to the Editor: Victims Repeatedly.” The News & Observer (Raleigh) 16 Aug. 2008: A8.
43 Orange County Board of Commissioners. A Resolution Opposing the Use of Local Law Enforcement to Enforce Civil

Immigration Law and Policy. Orange County, NC: Board of Commissioners, 23 Jan. 2007. On file with authors.

44 For a deeper treatment of racial profiling and equal protection issues raised by the 287(g) program, see Chapter II: The

Arizona Laboratory.

45 Lozano, et al. v. City of Hazleton. No. 3:06 CV 1586 (M.D. Pa. 2006)
46 Immigration Reform and Control Act of 1986, P.L. 99-603, 100 Stat 3359 (6 Nov. 1986).
47 Litigators raised four constitutional issues: United States Constitution’s supremacy clause, due process clause, equal

protection clause, and privacy guarantees. The court granted claims based on pre-emption and due process. See: Lozano, et al.
v. City of Hazleton. No. 3:06 CV 1586 (M.D. Pa. 2006). The court based its decision on the explicit pre-emption of the federal
Congress when it passed the 1986 law and also on two types of implied preemption: First, “field preemption exists where
the federal regulatory scheme is ‘so pervasive as to make reasonable the inference that Congress left no room for the States to
supplement it.’” A second type of implied preemption, called “conflict preemption,” exists when a party cannot comply with
the different legal schemes, or when the state or local law obstructs the execution and objectives of Congress. In Hazleton, the
court continued, due process was violated by denying a meaningful notice to tenants or hearing to employees. Employers could

72

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

just fire employees rather than go through trouble of documentation. Employers, employees, landlords, and tenants would all
be referred to a court that cannot even hear their claims.
For an overview of the federal preemption of immigration law, see Rodríguez, Cristina, Muzaffar Chisti, and Kimberly
Nortman. Testing the Limits: A Framework for Assessing the Legality of State and Local Immigration Measures. Washington:
Migration Policy Institute, 2007. Available at http://www.migrationpolicy.org/pubs/NCIIP_Assessing%20the%20Legality%20
of%20State%20and%20Local%20Immigration%20Measures121307.pdf.
48 Morawetz, Nancy, and Alina Das. Personal Interview by Aarti Shahani. 26 Aug. 2008. On file with authors.
49 Morawetz, Nancy, and Alina Das. Personal Interview by Aarti Shahani. 26 Aug. 2008. On file with authors.
50 Rosenbloom, Rachel E. Is the Attorney General the Custodian of an INS Detainee? Personal Jurisdiction and the

‘Immediate Custodian’ Rule in Immigration-Related Habeas Actions. 27 N.Y.U. L. Rev. & Soc. Change (2002). See also:
Vasquez v. Reno, 233 F.3d 688, 697 (1st Cir. 2000). For a recent treatment of habeas corpus issues in deportation proceedings,
see: American Immigration Law Foundation. Introduction to Habeas Corpus. Washington: American Immigration Law
Foundation, 2008. Available at http://www.ailf.org/lac/pa/lac_pa_0406.pdf.
Federal courts have ruled differently on which parties are responsible for legal custody in habeas actions challenging the
physical detention of a civil immigration detainee. See Supreme Court decision in: Rumsfeld v. Padilla, 542 U.S. 426 (2004).
It is also unclear how the Prison Legal Reform Act (PLRA) applies to immigration detainees housed in jails and prisons.
While the Supreme Court has not ruled on this issue, some lower courts have held that the sections of the PLRA applying to
“prisoners” do not apply to civil detainees, such as the exhaustion requirement, the mental and emotional injury requirement,
and the filing fee provision. See: Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002). But the section of the PLRA on the
requirements for and termination of injunctive relief, which apply to “all civil actions with respect to prison conditions,” may
apply to immigration detainees. See: Vasquez v. Carver, 18 F. Supp.2d 503 (E.D. Pa. 1998). See also: Center for Constitutional
Rights and National Lawyers Guild. The Jailhouse Lawyer’s Handbook: How to Bring a Federal Lawsuit to Challenge
Violations of Your Rights in Prison. New York: Center for Constitutional Rights and National Lawyers Guild, 2003. Available
at http://www.jailhouselaw.org/CCRNLGJHL.pdf.
The proper respondent in a lawsuit seeking monetary damages for medical neglect is also unclear. The Supreme Court ruled
in West v. Atkins that for defendants facing criminal charges, “contracting out medical care does not relieve the state of its
constitutional duty to provide adequate medical care to those in its custody.” See: West v. Atkins, 487 U.S. 42 (1988). Although
West specifically extended liability to the private physician under contract with the state to provide care (rather than to the
state itself ), the basic premise was that the obligation is the state’s and it is a non-delegable obligation. If a detainee or if a
class of detainees sues regarding inadequate medical care, overcrowding, or another violation, it is unclear if liability rests with
ICE (assuming the Eighth Amendment test applies) for the Fifth Amendment civil immigration detainee’s claim. According
to Tom Jawetz of the American Civil Liberties Union, “The question for both local and federal defendants should be whether
the defendants were deliberately indifferent to the serious medical needs of the detainees. The evidence to prove that may
well be quite different. The on-site people can show deliberate indifference by not keeping medical records, responding slowly
to medical requests, having a bad emergency response system, etc. The off-site folks may have liability if they routinely and
unreasonably delay or deny requests for off-site medical care or if they know of inadequate treatment but send detainees there
anyway, or if they are so willfully ignorant of the problems that you can presume indifference.” See: Jawetz, Tom. Personal
email to Judith Greene. 18 Dec. 2008. On file with authors.
51 Harris, David. The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-

9/11 America. 38 Rutgers L. J. 1, 4 (Fall 2006).

52 Morawetz, Nancy, and Alina Das. Personal interview by Aarti Shahani. 26 Aug. 2008. On file with authors.
53 See appendix for tables that present index crime and Latino population data for the 287(g) jurisdictions.
54 Barrett, Michael. “Officers Decide When to Arrest, But for Immigrant Community Decision Can Lead to Deportation.”
Gaston Gazette 7 July 2008. Retrieved 30 Sept. 2008, from http://www.gastongazette.com/news/cloninger_22388___article.
html/charges_arrested.html. See also: McKinney, Jeremy. “287(g) Program Won’t Keep Us Safer.” Greensboro News & Record
12 Oct. 2008. Data was disclosed followed an American Civil Liberties Union public records request. See ACLU North
Carolina fact sheet on file with authors.
55 Ross, Janell. “Pregnant Woman’s Jailing Questioned.” The Tennessean. 4 Aug. 2008.

73

ENDNOTES

56 Preston, Julia. “Immigrant, Pregnant, Is Jailed Under Pact.” The New York Times. 20 July 2008.
57 Sloan, Scott. “Norris Targets Legislation to Immigration Training.” The Commercial Appeal (Memphis) 3 Nov. 2005.

Retrieved 28 Nov. 2008, from http://senatornorris.org/media2005/11-09-05a.htm.

58 For the purpose of the Missouri State Highway Patrol, see http://www.mshp.dps.missouri.gov/MSHPWeb/AboutThePatrol/

patrolGeneral.html. Last visited 28 Aug. 2008.

59 Abrams, Vivi. “More Troopers to Train for Immigration Busts.” Birmingham News 22 Feb. 2005.
60 Hernandez, Daisy, and Vanessa Huang. “Roundups: Watching the War on Terror.” Colorlines 8.1, Spring 2005: 10.
61 Barrett, Greg. “Homeland Security Funds Often Spent to Meet Political Needs.” Baltimore Sun 20 Mar. 2005.
62 Quick Shots. “Agroterrorism Workshop Set.” Birmingham News 13 June 2005.
63 Taylor, Steven L. “What in the World is Homeland Security?” Birmingham News 19 Dec. 19 2004.
64 Mary Orndorff. “State Has Third Most Gang Arrests in National Sweeps.” Birmingham News 2 Aug. 2005.
65 Greene, Judith, and Kevin Pranis. Gang Wars: The Failure of Enforcement Strategies and the Need for Effective Public

Safety Strategies. Washington: Justice Policy Institute, July 2007. Available at http://justicestrategies.org/?q=node/123.
66 Anderson, Jon. “Police Seek End to Latino Gang Activity.” Birmingham News 7 Sept. 2005.
67 Sanford, Peggy. “ICE Raid Needs Absolute Certainty.” Birmingham News 27 July 2005.

68 Hansen, Jeff, Kelli Hewett Taylor, and Dawn Kent. “Banished: Jefferson County Judge Orders Illegal Immigrants to Leave;

U.S. Justice Department Says Only Federal Judges Have That Authority.” Birmingham News 19 Mar. 2006.

69 Jones, Richard. “Illegal Aliens.” Butler County Sheriff’s Office Official Blog 8 Nov. 2005. Retrieved 20 Nov. 2008 http://

butlersheriff.org/blog/?p=4.

70 Preston, Julia. “Sheriff Defies Immigrants by Billboard and by Blog.” New York Times 30 July 2006. Retrieved 20 Nov.

2008, from http://www.nytimes.com/2006/07/31/us/31sheriff.html.

71 Federal Bureau of Investigation. Uniform Crime Reports. Washington: Federal Bureau of Investigation, 2006-2008.
72 Seper, Jerry. “Ohio Deputies Get Federal Training.” The Washington Times 9 Jan. 2008. Retrieved 19 Nov. 2008, from

http://video1.washingtontimes.com/immigration/2008/01/ohio_deputies_get_federal_trai.html.

73 Hershey, William. “Illegal Immigrant Home from Jail, Lawyer Says Armando Mondragon’s Arrest Could Help Him.”

Dayton Daily News (OH) 16 Aug. 2008: A4.

74 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
75 Reagan’s 1986 legalization created a program to provide partial reimbursement to states for the costs incurred in

incarcerating noncitizens that have committed crimes. The State Criminal Alien Assistance Program (SCAAP) was funded for
the first time in 1994. Every state in the nation, as well as the Virgin Islands and Puerto Rico, now receive SCAAP funding.
The program, administered by the Bureau of Justice Assistance, is described at: http://www.ojp.usdoj.gov/BJA/grant/scaap.
html.
Joining 287(g) was not traditionally a prerequisite for SCAAP, yet an internal report indicates that ICE may try to make it one.
See: Office of Inspector General. Cooperation of SCAAP Recipients in the Removal of Criminal Aliens from the United States
(Audit Report 07-07, Redacted—Public Version). Washington: Department of Justice, Jan. 2007. Retrieved 29 Nov. 2008,
from http://www.usdoj.gov/oig/reports/OJP/a0707/final.pdf.
76 Bureau of Justice Assistance. Fiscal Year 2008 State Criminal Alien Assistance Awards. Available at http://www.ojp.usdoj.

gov/BJA/grant/scaap.html.

77 See: “Official Minutes of the Manassas Park Governing Body Board of Directors Meeting.” Manassas Park, VA. Web.

4 Mar. 2008. Retrieved 8 Aug. 2008 www.cityofmanassaspark.us/Public_Documents/ManassasParkVA_CouncilMin/
I0142AABA.0/MinMar42008.doc.

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LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

78 See: “Official Minutes of the Manassas Park Governing Body Board of Directors Meeting.” Manassas Park, VA. Web.

4 Mar. 2008. Retrieved 8 Aug. 2008 www.cityofmanassaspark.us/Public_Documents/ManassasParkVA_CouncilMin/
I0142AABA.0/MinMar42008.doc.

79 HR 1645, Security Through Regularized Immigration and a Vibrant Economy Act of 2007 (Strive). Committee on the

Judiciary, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. 110th Cong., 1st
sess. (6 Sept. 2007) (testimony of Corey A. Stewart, chairman of the Prince William Board of County Supervisors). Retrieved 4
Sept. 2008, from http://judiciary.house.gov/hearings/September2007/Stewart070906.pdf.

80 “Tab for Jailing Illegals is $800K More Than Expected.” WTOPnews.com 6 Aug. 2008. Retrieved 4 Sept. 2008, from
http://www.wtopnews.com/?nid=25&sid=1454458.
81 “Immigration Control a Brisk, Costly Business” [editorial]. The Roanoke Times (VA) 3 Apr. 2008: B8
82 Mack, Kristen. “Pr. William Softens Policy on Immigration Status Checks; Police Officers Can Question Crime Suspects

About Their Residency Only After They Are Arrested.” Washington Post 30 Apr. 2008: B01

83 Mack, Kristen. “Pr. William Softens Policy on Immigration Status Checks; Police Officers Can Question Crime Suspects

About Their Residency Only After They Are Arrested.” Washington Post 30 Apr. 2008: B01.

84 “County Tweaks Illegal-Immigration Plan; Prince William Police Will Ask About a Suspect’s Status Only After an Arrest is

Made.” Richmond Times-Dispatch (VA) 2 May 2008: B4.

85 “County Tweaks Illegal-Immigration Plan; Prince William Police Will Ask About a Suspect’s Status Only After an Arrest is

Made.” Richmond Times-Dispatch (VA) 2 May 2008: B4.

86 U.S. Library of Congress. Congressional Research Service. Homeland Security Department: FY2006 Appropriations.

Washington DC: The Service, 24 Jan. 2006. 41.

87 Powers of Immigration Officers and Employees, 8 USC § 1357.
88 Mills, Ryan. “Jailed Illegal Immigrants Cost Collier Taxpayers. $9 Million Yearly, Sheriff Says.” Naples Daily News 18 June
2007.
89 “New Task Force Set to Fight Illegal Immigration.” NBC2 News 10 July 2007. Retrieved 24 Nov. 2008, from http://www.

nbc-2.com/articles/readarticle.asp?articleid=13408&z=3&p.

90 Mills, Ryan. “Special Report: Collier Sheriff, Feds Try to Curb Immigrant Jail Population.” Naples Daily News 30 June

2007.

91 al-Sahli, Charu. Personal interview by Aarti Shahani. 11 July 2008. On file with authors.
92 Rodriguez, Maria. Personal interview by Aarti Shahani. 30 July 2008. On file with authors.
93 See the adopted “Nine Point Position Statement” in Major Cities Chiefs Association. Immigration Committee

Recommendations For Enforcement of Immigration Laws By Local Police Agencies. Sun Valley, ID: Major Cities Chiefs, June
2006. Retrieved 30 Dec. 2008, from http://www.houstontx.gov/police/pdfs/mcc_position.pdf.

94 Harris, David. The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-

9/11 America. 38 Rutgers L. J. 1, 45 (Fall 2006). Harris argues that when budget shortfalls were devastating local police
budgets, they made the principled decision to say no to greater executive power.

95 See: Miami-Dade Police Department. “Detention of Illegal Aliens.” Legal Bulletin 2007-01. 31 Jan. 2007. See also: Miami-

Dade Police Department. “Civil Detention of Aliens.” Legal Bulletin 2007-02. 14 Feb. 2007.
96 Improper Entry by Alien, 8 USC § 1325 (1990).

97 Miami-Dade Police Department. “Detention of Illegal Aliens.” Legal Bulletin 2007-01. 31 Jan. 2007. The bulletin states,

“Many of the violations are civil in nature, and an arrest for a non-criminal violation could result in civil liability. Additionally,
whether to routinely enforce federal immigration law is a policy decision based on a myriad of factors, including the extra
burden on limited resources.”
98 Miami-Dade Police Department. “Detention of Illegal Aliens.” Legal Bulletin 2007-01. 31 Jan. 2007.

75

ENDNOTES

99 “Immigration, Justice and Crime: Where Do We Go From Here?” Comments of Professor Scott H. Decker, Arizona State

University, at John Jay College of Criminal Justice Conference. 2 June 2008. Personal notes. On file with authors.

CHAPTER 2. The Arizona Laboratory
1 Bureau of Justice Statistics data indicates that Arizona leads western states with an incarceration rate of 554 prisoners per

100,000 people in the state’s general population. See: West, Heather C., and William Sabol. Prisoners in 2007. Washington:
Bureau of Justice Statistics, 2008. Available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p07.pdf.
2 Justice Center. “Recent and Projected Growth of the Arizona Prison Population.” New York: Council of State Governments,

2007.

3 US Census Bureau. Census: 2006. Web. Retrieved 5 Nov. 2008, from http://factfinder.census.gov/home/saff/main.html?_

lang=en.

4 Pew Hispanic Center. Arizona: Population and Labor Force Characteristics, 2000-2006. Washington: Pew Research Center,

23 Jan. 23, 2008. Retrieved 5 Nov. 2008 http://pewhispanic.org/files/fact sheets/37.pdf.

5 Arpaio, Joe. Personal interview by Aarti Shahani and Judith Greene. 18 Jan. 2008. On file with authors.
6 Jordon, Miriam. “Arizona Seizes Spotlight in U.S. Immigration Debate.” The Wall Street Journal 1 Feb. 2008.
7 Smuggling; classification; definitions. Arizona Revised Statutes § 13-2319.

Jonathan Paton was the bill’s author. Critics in the legislature charged that the proposal was unconstitutional and a gross
overstep in the state’s rights. If the failure of the US Attorney’s Office to prosecute human trafficking was cause for action, they
argued, then that action should be calling on Arizona’s congressional delegation to intervene. See comments of Ted Downing
in H.B. 2539, Smuggling of Persons. Arizona House of Representatives, Committee on Judiciary. 47th Leg., 1st sess. (10 Feb.
2005). Retrieved 16 July 2008, from http://www.azleg.state.az.us/FormatDocument.asp?format=print&inDoc=/legtext/47leg/
1R/comm_min/House/0210JUD.DOC.htm.
8 ICE’s detention mismanagement has been the ongoing subject of internal investigation. See Chapter III: ICE, Force

Without Mission.

9 McNichol, Elizabeth C., and Iris J. Lav. 29 States Face Total Budget Shortfall of At Least $48 Billion in 2009. Washington:

Center on Budget and Policy Priorities, 9 June 2008. Retrieved 30 Sept. 2008, from http://www.cbpp.org/1-15-08sfp.pdf.

10 Comments of Arizona Representatives Bill Konopnicki and Kyrsten Sinema. See: Konopnicki, Bill. Personal interview by

Aarti Shahani and Judith Greene. 13 June 2008. On file with authors. See also: Sinema, Kyrsten. Personal interview by Aarti
Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
11 Pearce, Russell. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.

12 See: McCloy, Mike. “Ex-MVD Director Eyes Spot in House Was Fired in ’99 in Record Tampering.” The Arizona Republic

28 Mar. 2000. See also: Petrie, Bob, and Mary Jo Pitzl. “MVD Chief Is Placed on Leave.” The Arizona Republic 18 Aug. 1999.
13 Arizona writer Stephen Lemons writes regularly on Pearce’s connections to white supremacist groups in his blog for

the Phoenix New Times. See, for example, a blog containing video footage of Pearce and J.T. Ready in: Lemons, Stephen.
“Feathered Bastard.” Phoenix New Times. 11 Aug. 2008. Retrieved 9 Sept. 2008, from http://blogs.phoenixnewtimes.com/
bastard/2008/08/russell_pearce_applauds_alread.php.
14 See photograph of Pearce at the “March for America.” Available on the website, White Knights of American: http://www.

whiteknightsofamerica.com/id7.html. Last accessed 8 Sept. 2008.

15 Ready is also a member of New Saxon, a social networking site on “defending the rights of white people, preservation of

European culture and heritage, reform of illegal immigration policies, workers rights, withdrawal of our military from an illegal
Middle Eastern occupation and promotion of white separation.” Available at: www.NewSaxon.org. See also: Arizona House
Democrats Seminar on the Tone of the Immigration Debate. Arizona State Legislature. 48th Leg., 1st sess. (2007). Retrieved
30 Sept. 2008, from http://azleg.granicus.com/MediaPlayer.php?view_id=3&clip_id=698. See also: Lynch, Sarah N. “Mesa

76

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Parade Panel Weighs Ready Military Record.” East Valley Tribune 28 Sept. 2006. Retrieved 30 Sept. 2008, from http://www.
eastvalleytribune.com/story/75224.
16 “Follow City Council’s Lead” [editorial]. The Arizona Republic 7 Oct. 2006: 30.
17 Proposition 200, The Arizona Taxpayer and Citizen Protection Act. State of Arizona Ballot Propositions, 2004. Retrieved

30 Sept. 2008, from http://www.azsos.gov/election/2004/info/pubpamphlet/english/prop200.pdf.

18 Riley, Jason A. “Repudiating Reagan.” The Wall Street Journal 21 Mar. 2004. The Southern Poverty Law Center lists

FAIR on its Hate Groups Map. See: http://www.splcenter.org/intel/map/hate.jsp#s=DC. For a historical account of FAIR, see
Fernandes, Deepa. Targeted: Homeland Security and the Business of Immigration. New York: Seven Stories Press, 2007. For
FAIR’s documented connections to the racist Council of Conservative Citizens, which describes Black people as “a retrograde
species of humanity,” see: Center for New Community. Special Report: FAIR. Chicago: Center for New Community, 2004.
Available at www.buildingdemocracy.org/reports/fair2004.pdf.
19 See: American Immigration Lawyers Association, Restrictionist Watch 2.1 (Feb. 2005).

Coalitions that formed to champion the ballot measure included “Protect Arizona NOW” and “YES on Proposition 200.” For
their ties to race extremist Dr. Virginia Deane Abernethy, see: Center for New Community. Special Report: Protect Arizona
Now Selects White Supremacist Leader to Chair National Advisory Board. Chicago: Center for New Community, August
2004.
20 Volpe, Paul. “New Immigration Ads Stir the Melting Pot.” The Washington Post 9 Sept. 2008. Retrieved 30 Sept. 2008,

from http://voices.washingtonpost.com/sleuth/2008/09/new_immigration_ads_stir_the_m.html.

21 See: Voter Identification, H.B. 2345. Arizona State Legislature. 46th Leg., 1st reg. sess. (26 June 2003). Vetoed by Janet

Napolitano. For more information, see: http://www.azleg.gov/.

22 Fischer, Howard. “Lawsuit Accuses Napolitano of Failing to Enforce Prop 200.” East Valley Tribune 4 Mar. 2008. In
2005 the governor vetoed S.B. 1118, a move that the Arizona secretary of state said set back implementation of the voter ID
provisions of Prop 200. See: Brewer, Jan. “U.S. Attorney General Disagrees with Napolitano on Voter I.D. at Polls” [press
release]. Phoenix: Arizona Secretary of State. 15 Apr. 2005. Retrieved 31 Oct. 2008, from http://www.azsos.gov/Releases/2005/
pressrelease10.htm.
23 Ripley, Amanda. “America’s 5 Best Governors.” Time Magazine 13 Nov. 2005.
24 Squitieri, Tom. “Democrat Attorney General Finally Wins in ‘Ugliest Race.’” USA Today 11 Nov. 2002.
25 Bill Clinton is widely regarded as the father of triangulation as the Democratic Party strategy. This strategy has drawn

criticism and praise. For praise of Hillary Clinton as the mother of triangulation, see: Bai, Matt. “Mrs. Triangulation.” The
New York Times Magazine 2 Oct. 2005: 62.
26 Fears, Darryl. “U.S. to Beef Up Border Force ICE to Help More in Areas With High Illegal Immigration.” The Washington
Post 24 Aug. 2005: A02. Retrieved 16 July 2008, from http://www.washingtonpost.com/wp-dyn/content/article/2005/08/23/
AR2005082301274_pf.html.
27 Stern, Ray. “Meltdown: The Phoenix Branch of the U.S. Immigration and Customs Enforcement Bureau is Exhibit
A of This Country’s Failed Border Policies.” Phoenix New Times 16 Nov. 2006. Retrieved 8 Sept., from http://www.
phoenixnewtimes.com/2006-11-16/news/meltdown/2.
28 See: Napolitano, Janet. “Letter to Michael Chertoff, Secretary, US Department of Homeland Security.” 1 July 2005. On

file with authors. See also: Carroll, Susan, and Judi Villa. “Arizona Wants Feds to Deport Criminals.” The Arizona Republic 24
Feb. 2005.
29 Carroll, Susan. “DPS Plan Welcomed at Migrant Summit; 12 State Officers Would Help Feds.” The Arizona Republic 13

July 2005.

30 See Napolitano, Janet. “Letter to Michael Chertoff, Secretary, US Department of Homeland Security.” 1 July 2005. On file
with authors.
31 Chertoff, Michael. “Letter to Arizona Governor Janet Napolitano.” 22 Aug. 2005. On file with authors.

77

ENDNOTES

32 See quotation of Maj. Patrick Manning, chief of the Alabama Department of Public Safety’s Highway Patrol Division, in:

Carroll, Susan. “DPS Plan Welcomed at Migrant Summit; 12 State Officers Would Help Feds.” The Arizona Republic 13 July
2005. For discussion of Alabama, see Chapter I of this report.
33 Carroll, Susan. “DPS Plan Welcomed at Migrant Summit; 12 State Officers Would Help Feds.” The Arizona Republic 13

July 2005.

34 Vanderpool, Roger. “Bold Steps are Needed on Immigration Policy.” The Arizona Republic 10 Jul. 2005.
35 Comment of Director Dora Schriro in: Arizona Criminal Justice Commission. “DHS and ADC Sign MOU to Expedite

Criminal Alien Removals. Pact Provides Immigration Enforcement Training for Arizona Department of Corrections Staff”
[press release]. Sept. 2005. Retrieved 1 July 2008, from http://acjc.state.az.us/news/fullstory/September2005/ice_adc_mou.asp.
36 Citizenship can be acquired or derived from a parent. For an overview of citizenship claims, see: Immigrant Legal Resource

Center Staff. A Guide for Immigration Advocates, A Comprehensive Immigration Practice Manual Written Especially for
Paralegals. San Francisco: Immigrant Legal Resource Center, Dec. 2008. Available at http://www.ilrc.org/pub_output.
php?id=59.

37 Garcia, Michael John. The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the

Removal of Aliens. Washington: Congressional Research Service. 4 Apr. 2006. Available at http://trac.syr.edu/immigration/
library/P1339.pdf.

38 See: “Representing Noncitizen Criminal Defendants: A National Guide.” Defending Immigrants Partnership. Web. 2008.

Available at http://defendingimmigrants.org/.

39 Schriro, Dora. Personal interview by Aarti Shahani and Judith Greene. 25 Oct. 2008. On file with authors.
40 The number of Arizona’s early releases was small until 2005. Following the 287(g) agreement, State Corrections began

actively identifying eligible immigrants, and also reducing a backlog of prisoners awaiting deportation. Schriro reported that
the state projected 928 early releases in 2008 and 249 in 2009. See: Holstege, Sean. “Ariz. Deportation Policy a Model, Feds
Say.” 15 Apr. 2008. Retrieved 11 Nov. 2008, from http://www.azcentral.com/news/articles/2008/04/15/20080415deport0414.
html.
41 Arizona Department of Corrections. “ADC Opens First Ice Unit Inside a State Prison—First for the United States” [press

release]. 28 Mar. 2007.

42 Immigration and Customs Enforcement. Factsheets: Delegation of Immigration Authority Section 287(g) Immigration and

Nationality Act. Washington: Department of Homeland Security, 6 Sept. 2007.

43 For ICE documentation that its identification of noncitizens in state prisons has not been connected to 287(g) authority,

see: Immigration and Customs Enforcement. Fiscal Year 2007 Annual Report. Protecting National Security and Upholding
Public Safety. Washington: Department of Homeland Security, 2008. iv. The report states, “For the first time, ICE’s DEPORT
center made it possible to identify and screen criminal aliens incarcerated in federal prisons nationwide to ensure their removal
upon the completion of their sentences. Result: 11,292 charging documents have been issued to criminal aliens housed in
federal prisons.” Available at http://www.ice.gov/doclib/about/ice07ar_final.pdf.
44 Arizona Department of Corrections. “ADC Opens First Ice Unit Inside A State Prison—First For The United States” [press

release]. 28 Mar. 2007.

45 Scutari, Chip. “Will Recent Immigration Moves Help Napolitano?” The Arizona Republic 6 Sept. 2005. See also: Robb,

Robert. “Governor Is Focused on Immigration.” The Arizona Republic 14 Sept. 2005: B9. See also: Fischer, Howard. “AZ
Prison Workers to Speed Deportations.” The Arizona Daily Star 21 Sept. 2005: A1.
46 Pearce, Russell. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.

47 Carroll, Susan. “DPS Plan Welcomed at Migrant Summit; 12 State Officers Would Help Feds.” The Arizona Republic 13

July 2005.

48 Scutari, Chip. “Will Recent Immigration Moves Help Napolitano?” The Arizona Republic 6 Sept. 2005. See also: Robb,

Robert. “Governor Is Focused on Immigration.” The Arizona Republic 14 Sept. 2005: B9.
49 See summary of law in Supreme Court Case: Truax v. Raich, 239 U.S. 33, 41 (1915).

78

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

50 See summary of law in Supreme Court Case: Truax v. Raich, 239 U.S. 33, 41 (1915).
51 Smuggling; classification; definitions. Arizona Revised Statutes § 13-2319. 
52 Trafficking Victims Protection Act of 2000, Pub. L. no. 106-386, Division A, 114 Stat 1464 (2000).
53 Sinema, Kyrsten. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
54 See: National Conference of State Legislatures. Web. Available at: http://www.ncsl.org/programs/immig/

2007immigrationfinal.htm. Last accessed 13 July 2008.

55 Decker, Scott H., Paul G. Lewis, Doris Marie Provine, and Monica W. Varsanyi. “Immigration and Local Policing: Results

from a Survey of Law Enforcement Executives in Arizona.” Phoenix: Arizona State University, May 2008. On file with authors.
56 Kiefer, Michael. “Law Agencies Cool to New ‘Coyote’ Law - Units Say They Will Abide By Federal, Not State,

Requirements.” The Arizona Republic 21 Aug. 2005.

57 Jordon, Miriam. “Arizona Seizes Spotlight in U.S. Immigration Debate.” The Wall Street Journal 1 Feb. 2008.
58 With 135 capital cases in 2006, Maricopa County exceeded Harris County, Texas—the former US county leading in the

death penalty with seventeen pending cases. Maricopa County also dwarfs Los Angeles County, which is more than twice its
size but has thirty-six pending capital cases. See: Steinhauer, Jennifer. “Policy Shift on Death Penalty Overwhelms Arizona
Court.” The New York Times 5 Mar. 2007. See also: Berry, Jahna. “Death-Penalty Backlog Strains Justice System.” The Arizona
Republic. 22 Feb. 2007; and “The Andrew Thomas/Death Penalty Index.” Blog for Arizona. Web. Retrieved 8 Sept. 2008,
from http://arizona.typepad.com/blog/2007/07/the-andrew-thom.html.
59 Thomas, Andrew. “County Attorney Urges Enforcement of Anti-Coyote Law. Announces Fall Conference on Illegal

Immigration, Border Security and Crime” [news release]. Phoenix: Maricopa County Attorney’s Office, 30 Aug. 2005. Among
the featured speakers was Congressman Tom Tancredo, founder of the Congressional Immigration Reform Caucus. Tancredo
played a vital role among policymakers in moving immigration into a national security framework following September 11,
2001.
60 Thomas, Andrew. “County Attorney Urges Enforcement of Anti-Coyote Law. Announces Fall Conference on Illegal

Immigration, Border Security and Crime” [news release]. Phoenix: Maricopa County Attorney’s Office, 30 Aug. 2005.

61 Thomas, Andrew. Maricopa County Attorney Annual Report 2005. Phoenix: Maricopa County Attorney’s Office, 2006.
62 Sinema, Kyrsten. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
63 Michael Kiefer. “Law Agencies Cool To New ‘Coyote’ Law - Units Say They Will Abide By Federal, Not State,

Requirements.” The Arizona Republic. 21 Aug. 2005.

64 Kiefer, Michael. “Law Agencies Cool To New ‘Coyote’ Law - Units Say They Will Abide By Federal, Not State,

Requirements.” The Arizona Republic. 21 Aug. 2005.

65 See: State of Arizona v. Antonio Gonzalez Alvarado (033). CR2006-005932-033 DT (Ariz. Super. 9 June 2006). Available

at http://www.courtminutes.maricopa.gov/docs/Criminal/062006/m2257277.pdf.

66 O’Toole, Thomas. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
67 State of Arizona v. Juan Barragan-Sierra, 534 Ariz. Adv. Rep. 3 (App. July 17, 2008).
68 The lawsuit was filed in US District Court in Phoenix in November 2006 by the Center for Human Rights and
Constitutional Law. Sheriff Joe termed it a stunt by the Mexican government because Mexico is among the clients of the
legal group’s director, Peter Schey. See: We Are America/Somos America Coalition of Arizona v. Maricopa County Board of
Supervisors, WL 2775134 (D. Ariz. 21 Sept. 2007)
69 Sinema, Kyrsten. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
70 Kiefer, Michael. “’Coyote’ Law Still Untested By a Jury.” The Arizona Republic 18 Aug. 2006.
71 Immigration and Customs Enforcement. Office of Detention and Removal. Endgame: Detention and Removal Strategic

Plan 2003–2012. Washington: Department of Homeland Security, June 2003. 3-6.

79

ENDNOTES

72 Kiefer, Michael. “Smuggling Trial May Come to an Abrupt End.” The Arizona Republic 11 July 2006.
73 Kiefer, Michael. “IDs Unequal Across the Board.” The Arizona Republic 16 Mar. 2008. Retrieved 30 Sept. 2008, from

www.azcentral.com/php-bin/clicktrack/email.php/7880982.

74 Gabrielson, Ryan, and Paul Gibline. “Reasonable Doubt.” East Valley Tribune 8 July 2008. Retrieved 9 July, from http://

www.eastvalleytribune.com/page/reasonable_doubt.

75 Figure based on booking and per diem rate as reported by Maricopa Association of Governments for 750 people thus far

convicted of smuggling, with average length of incarceration at ninety days. See: Stern, Ray. “$5 Million (and Counting) to Jail
‘Human Cargo’ of Smugglers Under AZ Law.” Phoenix New Times 17 Jul. 2008. Retrieved 10 Aug. 2008, from http://blogs.
phoenixnewtimes.com/valleyfever/2008/07/5_million_and_counting_to_jail.php.
76 Pearce, Russell. “What Part of Illegal Do They Not Understand?” PHXnews 16 Aug. 2005. Retrieved 30 Sept. 2008, from

http://www.phxnews.com/fullstory.php?article=24206.

77 Pearce, Russell. “What Part of Illegal Do They Not Understand?” PHXnews 16 Aug. 2005. Retrieved 30 Sept. 2008, from

http://www.phxnews.com/fullstory.php?article=24206.
78 Bailable offenses. Ariz. Const. Art. 2 § 22.
79 Bailable offenses. Ariz. Const. Art. 2 § 22.

80 House Concurrent Resolution 2028. Proposing An Amendment to the Constitution of Arizona; Amending Article II,

Section 22, Constitution of Arizona; Relating to Bailable Offenses. Arizona House of Representatives. 47th Leg., 1st reg. sess.
(2005).
81 Felonies that are classified as level 1 to 4 include simple marijuana possession, possession of a forgery tool and similar low

level offenses.

82 “Proof Evident, Presumption Great” is a standard established in Simpson hearings. 207 Ariz. 261, 274 ¶ 40, 83 P.3d 478,

491 (App. 2004). See Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004).

83 Pearce, Russell. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
84 While the undocumented population doubled from 1994 to 2004, data from the Bureau of Justice Statistics indicates

that the US witnessed a sharp drop in both violent and property crime rates. See: Department of Justice. Bureau of Justice
Statistics. Available at http://bjsdata.ojp.usdoj.gov/dataonline/Search/Crime/State/statebystaterun.cfm?stateid=52. See Chapter
I, endnote 38.
85 Ariz. R. Crim. P 7.4(a).
86 For a statutory provision that identifies immigration status as a factor in assessing risk and community ties, see Release on

Bailable Offenses Before Trial; definition. A.R.S. § 13-3967(11).

87 See Simpson v. Owens, 207 Ariz. 261, 85 P.3d 478 (App. 2004).
88 Welch, Dennis. “County Courts Refuse to Check Immigration Status.” East Valley Tribune 3 Apr. 2007.
89 Friddle, Tracy. Personal interview by Aarti Shahani and Judith Greene. 18 Jan. 2008. On file with authors.
90 Anonymous interview with employee of the Arizona Unified Court System. On file with authors.
91 Wingett, Yvonne, and Michael Kiefer. “4 Legislators Seeking Inquiry on County Release of Migrant.” The Arizona Republic

4 Apr. 2007. B5

92 Comments of Andrew Thomas in: Kiefer, Michael. “Supreme Court Ruling Sought on Migrant Bail.” The Arizona

Republic 16 June 2007. B7.

93 See Pearce, Russell. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors. Meanwhile

the Police Chief of Pearce’s home district Mesa insisted that, “The system broke down because the system is broken.” See
comment of George Gascon in: Redhage, Jill. “Missteps Blamed for Suspect’s Release.” East Valley Scottsdale Tribune 29 Mar.
2007.

80

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

94 Roberts, Laurie. “Judges Who Ignore No-Bail Law May As Well Give You the Finger.” The Arizona Republic 21 Mar. 2007.

B1

95 Ariz. Sup. Ct. Admin. Order No. 2007-30. Available at http://www.supreme.state.az.us/orders/admorder/Orders07/2007-

30.pdf.

96 Ariz. Sup. Ct. Admin. Order No. 2007-30. Available at http://www.supreme.state.az.us/orders/admorder/Orders07/2007-

30.pdf.

97 Ariz. Sup. Ct. Admin. Order No. 2007-30. Available at http://www.supreme.state.az.us/orders/admorder/Orders07/2007-

30.pdf.

98 McGregor, Ruth V. “Letter to State Senate President Timothy Bee and House Speaker Jim Weiers Re: Proposition 100.” 3

Apr. 2007. See section on “Pretrial Inquiry.” On file with authors.

99 See: S.B. 1265: An Act Amending Sections 13-3906 And 13-3961, Arizona Revised Statutes; Relating To Bail. Arizona

Senate. 48th Leg., 1st reg. sess. (2007).

100 See Pearce, Russell. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
101 Napolitano, Janet. “Letter to Timothy S. Bee, President of the Senate.” Phoenix: Arizona Office of the Governor. 2 July
2007.
102 Arizona Supreme Court. “Chief Justice McGregor Announces New Rules to Govern Prop 100 Cases” [news release].

Phoenix: Arizona Supreme Court. 3 July 2007. Available at http://www.supreme.state.az.us/media/archive/2007/07-0307Rules.pdf.
103 See: Segura v. Cunanan, 196 P.3d 831, 841-42 (App. 2008).
104 Segura v. Cunanan, 196 P.3d 831, 841-42 (App. 2008).

105 Ariz. Sup. Ct. Admin. Rules No. R-07-0003. Available at http://supreme.state.az.us/rules/2008%20Rules%20a/R-07-

0003.pdf.

106 Friddle, Tracy. Personal interview by Aarti Shahani and Judith Greene. 18 Jan. 2008. On file with authors. See also:

Hernandez v. Lynch, 216 Ariz. 469, 472-73, 167 P.3d 1264, 1267-68 (App. 2007).

107 See: Melvin Omar Hernandez v. State of Arizona. Petition for Review by the US Supreme Court. 6 Dec. 2007. On file

with authors.

108 Hernandez v. Lynch, 216 Ariz. 469, 472-73, 167 P.3d 1264, 1267-68 (App. 2007).
109 Lopez-Valenzuela, et al. v. Maricopa County, et al. Civ 08-660-PHX-SRB, ¶ 5. (D. Ariz. 4 Apr. 2008). Available at http://

www.aclu.org/pdfs/immigrants/lopezvalenzuela_complaint.pdf.

110 Pearce, Russell. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors. The Arizona

Constitution provides for merit selection and retention of judges only in counties with populations of 250,000 or greater.
Currently, this includes Maricopa and Pima Counties, which contain the state’s two largest cities, Phoenix and Tucson.
111 Rubin, Paul. “Power Play.” Phoenix New Times 6 Dec. 2007.
112 Waters, Kathy. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
113 Unattributed comment. On file with authors.

114 Office of Inspector General. Detention and Removal of Illegal Aliens. Washington: Department of Homeland Security,

April 2006. 5.

115 The state construct is similar to the federal “aggravated felony,” a category that has undergone drastic expansion and

includes offenses that may not be considered “serious” or “aggravated” by conventional wisdom, such as shoplifting or forging
documents to obtain work. See: Morawetz, Nancy. “Understanding the Impact of the 1996 Deportation Laws and the Limited
Scope of Proposed Reforms.” 113 Harvard L. Rev. 1936 (2000).

81

ENDNOTES

116 Gabrielson, Ryan, and Paul Gibline. “Reasonable Doubt.” East Valley Tribune 8 July 2008. Retrieved 9 July 2008, from

http://www.eastvalleytribune.com/page/reasonable_doubt.

117 Arpaio, Joe. Personal interview by Aarti Shahani and Judith Greene. 18 Jan 2008. On file with authors.
118 Manning, Michael. Jail White Paper on Maricopa County Sheriff’s Office Jail Investigations and Recommendations.

Phoenix: Michael Manning (private attorney), 2008. On file with authors.

119 Reveles, Roberto. Personal interview by Aarti Shahani and Judith Greene. 27 Mar. 2008. On file with authors.
120 Manning, Michael. Jail White Paper on Maricopa County Sheriff’s Office Jail Investigations and Recommendations.

Phoenix: Michael Manning (private attorney), 2008. On file with authors.

121 Carroll, Susan. “DPS Plan Welcomed at Migrant Summit; 12 State Officers Would Help Feds.” The Arizona Republic 13

July 2005.

122 Melendez, Mel. “Mesa Mayor Drops Plans to Help INS.” The Arizona Republic 26 Jan. 2001: B1.
123 Immigration and Customs Enforcement. “ICE to Train Maricopa County Sheriff’s Deputies to Enforce Immigration

Law. ICE and Sheriff’s Office Sign Agreement to Work Together to Combat Illegal Immigration” [news release]. Washington:
Department of Homeland Security, 26 Feb. 2007. Available at http://www.ice.gov/pi/news/newsreleases/articles/
070226phoenix.htm.
124 ICE describes two types of 287(g) deputies, the Task Force Officer and the Jail Enforcement Officer. See Chapter I of this

report.

125 Immigration and Customs Enforcement. “ICE to Train Maricopa County Sheriff’s Deputies to Enforce Immigration

Law. ICE and Sheriff’s Office Sign Agreement to Work Together to Combat Illegal Immigration” [news release]. Washington:
Department of Homeland Security, 26 Feb. 2007. Available at http://www.ice.gov/pi/news/newsreleases/articles/
070226phoenix.htm.
126 For more on Inter-Governmental Service Agreements, see Chapter III of this report.
127 Immigration and Customs Enforcement and Maricopa County Board of Supervisors. “Memorandum of Agreement re:

287(g) Authority.” (7 Feb. 2007).

128 Immigration and Customs Enforcement and Maricopa County Board of Supervisors. “Memorandum of Agreement re:

287(g) Authority.” (7 Feb. 2007).

129 Muench, Sarah. “Day-Labor Center Use Up 50%.” The Arizona Republic 30 Sept. 2005.
130 When Janet Napolitano served as Arizona’s Attorney General her office defined “racial profiling” as “the use by law

enforcement personnel of an individual’s race or ethnicity as a factor in articulating reasonable suspicion to stop, question or
arrest an individual (unless race or ethnicity is part of an identifying description of a specific suspect for a specific crime.)” See:
Arizona Attorney General’s Office. Report on Racial Profiling. Phoenix: Civil Rights Division and Office of Intergovernmental
Affairs, 2001. Available at http://www.azag.gov/law_enforcement/racial%20profiling.PDF.
In a survey of sixty-five Arizona police chiefs, conducted by researchers at Arizona State University, sixty percent reported that
their departments had neither a written nor an unwritten policy on immigration. The research team observed the critical nature
of the policy lapse. “While nearly every department has a policy prohibiting racial profiling, the potential for conflict between
these policies and immigration enforcement remains unresolved in many departments.” See: Decker, Scott H., Paul G. Lewis,
Doris Marie Provine, and Monica W. Varsanyi. “Immigration and Local Policing: Results from a Survey of Law Enforcement
Executives in Arizona.” Phoenix: Arizona State University, May 2008. On file with authors.
131 Wingett, Yvonne. “Day-Labor Dispute Simmers - Immigrants Soliciting Work Seek Center Where They Could Avoid

Wrath Of Businesses On Thomas.” The Arizona Republic 1 Dec. 2006: B1.

132 Wingett, Yvonne. “Day-Labor Dispute Simmers - Immigrants Soliciting Work Seek Center Where They Could Avoid

Wrath Of Businesses On Thomas.” The Arizona Republic 1 Dec. 2006: B1.

133 Reza, Salvador. Personal interview by Aarti Shahani. 22 July 2008. On file with authors.

82

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

134 See the organization’s website at: http://www.judicialwatch.org/.
135 “From the Desk of Judicial Watch President Tom Fitton: JW Complaint Leads to Illegal Alien Arrests.” Judicial Watch.

Web. 19 Oct. 2007. Available at http://www.judicialwatch.org/jwnews/101907.htm. Last accessed 27 Aug. 2008.

136 Fitton, Tom. “JW Complaint Leads to Illegal Alien Arrests.” Judicial Watch. Web. 19 Oct. 2007. Retrieved 27 Aug. 2008,
from http://www.judicialwatch.org/jwnews/101907.htm.
137 Among the volunteers who rally to Arpaio’s sweeps is Rusty Childress, the founder of American Freedom Riders and
member of United for a Sovereign America, a grassroots partner of FAIR. See the group’s political platform at: http://
immigrationbuzz.com/?page_id=29. FAIR’s profile of Childress is online at: http://www.fairus.org/site/PageServer?pagenam
e=research_sept07nl09. For Childress’ participation in protests against day laborers, see: González, Daniel. “Protests Target
Day-Labor Center.” The Arizona Republic 1 Jan. 2008. See also: O’Connell, Stacey. “Pruitt’s Protest: Report.” Patriots’ Border
Alliance. Web. 8 Dec. 2007. Online at http://www.patriotsborderalliance.com/archive-Dec8.html. For his attendance in Sheriff
Arpaio’s sweeps, see photo-essay: Kurtz, Jack. “MCSO Conducts Sweep in North Phoenix.” The Arizona Republic 2009.
Available at http://www.azcentral.com/commphotos/azcentral/5520/6/11. See also testimony of Salvador Reza: Reza, Salvador.
Personal interview by Aarti Shahani. 22 July 2008. On file with authors.
138 Gabrielson, Ryan, and Paul Gibline. “Reasonable Doubt.” East Valley Tribune 8 July 2008. Retrieved 9 July 2008, from

http://www.eastvalleytribune.com/page/reasonable_doubt.

139 The Associated Press. “Thomas, Sheriff Arpaio Re-Elected in Maricopa County. Maricopa Attorney, Sheriff Win Easily;

Arpaio May Expand Crackdowns.” The Tucson Citizen 5 Nov. 2008. Retrieved 5. Nov. 2008, from http://www.tucsoncitizen.
com/ss/border/101725.php.
140 Reza, Salvador. Personal interview by Aarti Shahani. 22 July 2008. On file with authors.
141 Bolick, Clint. Mission Unaccomplished: The Misplaced Priorities of the Maricopa County Sheriff’s Office. Phoenix:
Goldwater Institute, 2008. Available at http://www.goldwaterinstitute.org/Common/Img/Mission%20Unaccomplished.pdf.
142 Bolick, Clint. Mission Unaccomplished: The Misplaced Priorities of the Maricopa County Sheriff’s Office. Phoenix:

Goldwater Institute, 2008. Available at http://www.goldwaterinstitute.org/Common/Img/Mission%20Unaccomplished.pdf.
143 Lemons, Stephen. “Joe Arpaio’s Deputies Placed ‘Hold’ on U.S. Citizen Israel Correa, Failed to Inform ICE.” Phoenix

New Times 25 Jan. 2008. Retrieved 15 Sept. 2008, from http://blogs.phoenixnewtimes.com/bastard/2008/01/joe_arpaios_
deputies_placed_a.php.
144 Manuel De Jesus Ortega Melendres, et al. V. Joseph Arpaio, et al. No. CV 07-025 13-PHX-MHM (D. Ariz. 16 July

2008). See also: Arizona ACLU. “Sheriff Arpaio Sued Over Racial Profiling of Latinos in Maricopa County” [press release].
Phoenix: Arizona Civil Liberties Union. 16 July 2008.
The first racial profiling lawsuit against Arpaio and Maricopa County for the immigration raids came from Manuel de Jesus
Ortega Melendres, a Mexican citizen in the US legally. See: Villa, Judi. “Lawsuit Accuses Arpaio of Profiling. Man Legally in
U.S. Who was Detained is Fighting Crackdown.” The Arizona Republic 13 Dec. 2007. Retrieved 30 July 2008, from http://
www.azcentral.com/arizonarepublic/news/articles/1213arpaiosuit1213.html.
145 Pochoda, Dan. Personal interview by Aarti Shahani. 26 Nov. 2008. On file with authors.
146 Chapter 279, House Bill 2779: Amending Section 13-2009, Arizona Revised Statutes; Amending Title 23, Chapter

2, Arizona Revised Statutes, By Adding Article 2; Making Appropriations; Relating To Employment. Arizona House of
Representatives. 48th Leg., 1st reg. sess (2007). Available at http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/
48leg/1r/laws/0279.htm.
147 Arizona Office of the Governor. “Governor Signs Employer Sanctions Bill” [press release]. 2 July 2007.
148 Sunnucks, Mike. “Sheriff Joe Arpaio: Bad for Arizona’s business image?” Phoenix Business Journal 25 Apr. 2008. Retrieved
29 Sept. 2008, from http://phoenix.bizjournals.com/phoenix/stories/2008/04/28/story6.html.
149 Harris, Craig. “Fallout From Ariz. Employer Sanctions Law.” The Arizona Republic 14 Sept. 2008.
150 Konopnicki, Bill. Personal interview by Aarti Shahani and Judith Greene. 13 June 2008. On file with authors.

83

ENDNOTES

151 Hensley, JJ. “ACLU Legal Director Acquitted of Trespassing. Man Faced Charge in Pruitt’s Protests. The Arizona Republic

10 Sept. 2008.

152 Lemons, Steve. “Update: New Times Founders Mike Lacey and Jim Larkin Released From Sheriff’s Custody, Vow to Fight

On.” Phoenix New Times 10 Oct. 2007. Retrieved 12 Sept. 2008, from http://blogs.phoenixnewtimes.com/bastard/2007/10/
update_new_times_founders_mich.php.
153 US Census Bureau. Census: 2006. Retrieved 5 Nov. 2008, from http://factfinder.census.gov/home/saff/main.html?_

lang=en.

154 Lemons, Stephen. “Open Rebellion: Guadalupe Mayor Rebecca Jimenez Demands Sheriff Joe Arpaio Cease Anti-

Immigrant Sweep.” Phoenix New Times 4 Apr. 2008. Retrieved 12 Sept. 2008, from http://blogs.phoenixnewtimes.com/
bastard/2008/04/open_rebellion_guadalupe_mayor.php.
155 Tripp, Kevin. “Guadalupe Mayor Faces Off Against Sheriff Joe.” KTAR.com 4 Apr. 2008. Retrieved 12 Sept. 2008 http://

www.ktar.com/?nid=6&sid=797001.

156 Martin, Nick R. “Arpaio Gives Guadalupe 180 Days to Break Ties.” East Valley Tribune 18 Apr. 2008. Retrieved 12 Sept.

2008, from http://www.eastvalleytribune.com/story/114204.

157 Scarborough, Senta, and William Hermann. “Arpaio: Go Back Where You Came From.” The Arizona Republic. 14 Jul.

2008.

158 Fenske, Sarah. “Sheriff Joe Wants to Read Phil Gordon’s Email.” Phoenix New Times 13 May 2008.
159 Gordon, Phil. “Letter to US Attorney General Mukasey Re: Request for Civil Rights Investigation of the Maricopa

County Sheriff.” Phoenix: Office of the Mayor. 2 Apr. 2008.

160 Giblin, Paul, and Ryan Gabrielson. “Reasonable Doubt Part V: Why No One Is Willing to Hold Sheriff Arpaio

Accountable.” East Valley Tribune 13 July 2008. Retrieved 29 Sept. 2008, from http://www.eastvalleytribune.com/
story/120706.

161 See news coverage of Phoenix Police Enforcement President Mark Spencer in: “ICE: No Proof Home Invasion Suspects

Part of Mexican Militia.” Newstalk KFYI 25 June 2008. Retrieved 15 Sept. 2008, from http://kfyi.com/pages/local_news.
html?feed=118695&article=3875223.

162 Immigration and Customs Enforcement. Factsheets: Delegation of Immigration Authority Section 287(g) Immigration

and Nationality Act. Washington: Department of Homeland Security, 6 Sept. 2007.

163 “Gang & Immigration Intelligence Team Enforcement Mission” [memo]. Phoenix: Department of Public Safety, 11 Sept.

2006. On file with authors.

164 Greene, Judith, and Kevin Pranis. Gang Wars: The Failure of Enforcement Strategies and the Need for Effective Public

Safety Strategies. Washington: Justice Policy Institute, July 2007. Available at http://justicestrategies.org/?q=node/123.

165 HB 2582, Immigration Enforcement Mission; Council; Appropriations. Arizona State Legislature, 47th Leg., 2nd sess.

(2006).

166 HB 2781, General Appropriations; 2007-2008. Arizona State Legislature, 48th Leg., 1st sess. (2007).
167 Pearce, Russell. Personal interview by Aarti Shahani and Judith Greene. 17 Jan. 2008. On file with authors.
168 Ruelas, Richard. “State Money for Sheriff Joe’s Smuggling Operation.” The Arizona Republic 14 Mar. 2007.
169 Konopnicki, Bill. Personal interview by Aarti Shahani and Judith Greene. 13 June 2008. On file with authors. Konopnicki

cautioned fellow politicians against prison growth, “Whatever decision we make, let’s at least be sure it’s a conscious one,
after a rigorous review of data and an understanding of what neighboring states are doing.” See: The Council of State
Governments Justice Center. “Arizona’s Prison Population Projected to Grow Twice as Fast as General Resident Population,
Independent Study Finds” [press release]. 6 Feb. 2007. Retrieved 14 Sept. 2008, from http://justicecenter.csg.org/downloads/
AZ+Pew+Press+Release+PDF.pdf.

84

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

170 Gabrielson, Ryan, and Paul Gibline. “Reasonable Doubt.” East Valley Tribune 8 July 2008. Retrieved 9 July 2008 http://

www.eastvalleytribune.com/page/reasonable_doubt.

171 “Interview with Matthew Allen, Special Agent in Charge of Immigration and Customs Enforcement (ICE).” Horizonte;

Arizona PBS 30 Oct. 2008. Retrieved 4 Dec. 2008, from http://www.azpbs.org/horizonte/transcript06.asp?ID=546#.

172 Stern, Ray. “Police State: How the U.S. Immigration and Customs Enforcement Agency Turned All Local Authorities Into
La Migra.” Phoenix New Times 30 Sept. 2008.
173 Pochoda, Dan. Personal interview by Aarti Shahani. 26 Nov. 2008. On file with authors.
174 Comments of Jennifer Allen at “Strengthening Communications from the Border to the Four Corners.” Conference by

Arizona State University and New American Media. 30 Sept. 2008. Personal notes by Aarti Shahani. On file with authors. See
also: Allen, Jennifer. Personal Interview by Aarti Shahani. 30 Sept. 2008. On file with authors.

CHAPTER 3. ICE: Force Without Mission
1 Ngai, Mai. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, NJ: Princeton University

Press, 2004: 4-5.

2 S. HRG. 107–931, Immigration Reform and the Reorganization of Homeland Defense: Committee on the Judiciary,

Subcommittee on Immigration. 107th Cong., 2nd sess. (26 June 2002). Retrieved on 24 Aug. 2008, from http://www.access.
gpo.gov/congress/senate/pdf/107hrg/86931.pdf.
3 Homeland Security Act of 2002, Pub. L. no. 107-296. 116 Stat 2153 (2002). The underlying House bill was introduced by

Texas Rep. Richard K. Armey. See: H.R. 5005, Homeland Security Act of 2002. 107th Cong., 1st sess. (2002). Retrieved 25
Aug. 2008, from http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR05005.
4 Crowley, P.J. Personal interview by Aarti Shahani. 31 Oct. 2008. On file with authors.

5 Morrison, Bruce A., Morrison Public Affairs Group, and Robert Charles Hill, Arent, Fox, Kintner, Plotkin, & Kahn. “Letter
to US Representative Jim Kolbe.” 18 Apr. 2002. Rep. Kolbe read the letter into the congressional record during a hearing on
H.R. 3231, Barbara Jordan Immigration Reform and Accountability Act Of 2002 (25 Apr. 2002).
6 Building Democracy Initiative. Nativism in the House: A Report on the House Immigration Reform Caucus. Chicago:

Center for New Community, September 2007: 3. Available at http://www.newcomm.org/content/view/59/88/.

7 See statement of Senator Sam Brownback (R-Kansas) in: S. HRG. 107–931, Immigration Reform and the Reorganization

of Homeland Defense: Committee on the Judiciary, Subcommittee on Immigration. 107th Cong., 2nd sess. (26 June 2002).
Retrieved on 24 Aug. 2008, from http://www.access.gpo.gov/congress/senate/pdf/107hrg/86931.pdf.
8 For an analysis of the impact of immigration on the middle class, see: Traub, Amy M. Principles for an Immigration Policy
to Strengthen and Expand the American Middle Class, 2007 edition. New York: Drum Major Institute, 2007. Available at
http://www.drummajorinstitute.org/immigration.

For a journalistic account of how immigrant entrepreneurs prevented economic collapse in New York City beginning in the
1970s, see: Millman, Joel. The Other Americans: How Immigrants Renew Our Country, Our Economy, and our Values. New
York: Penguin, 1997.
9 According to the government’s analysis of the federal budget, ICE devoted $2.2 billion to counterterrorism in fiscal year

2008, down from almost $2.5 billion in 2007. See: United States Office of Management and Budget. Analytical perspectives:
Budget of the United States Government, FY 2009. Washington: GPO, 2008. Retrieved 31 Jan. 2009, from http://www.
whitehouse.gov/omb/budget/fy2009/pdf/spec.pdf.
10 Immigration and Customs Enforcement. Office of Detention and Removal. Endgame: Detention and Removal Strategic

Plan 2003–2012. Washington: Department of Homeland Security, June 2003.

11 See, for example: Sassen, Saskia. Globalization and Its Discontents. New York: The New Press, 1998.

85

ENDNOTES

12 Dobbs, Lou. “Populist Tide Has Elitists Running Scared.” CNN.com 22 Nov. 2006. Retrieved 5 Dec. 2008. Available

from http://www.cnn.com/2006/US/11/21/Dobbs.Nov22/index.html. See also: Goodman, Amy and Juan Gonzalez. “FactChecking Dobbs: CNN Anchor Lou Dobbs Challenged on Immigration Issues.” Democracy Now! 4 Dec. 2007. Retrieved 5
Dec. 2008, from http://www.democracynow.org/2007/12/4/fact_checking_dobbs_cnn_anchor_lou.
13 Pew Hispanic Center. Unauthorized Migrants: Numbers and Characteristics. Washington: Pew Research Center, June

2005. Available at http://pewhispanic.org/files/reports/46.pdf.

14 Crowley, P.J. Personal interview by Aarti Shahani. 31 Oct. 2008. On file with authors.
15 Shapiro, Walter. “Unfortunate Photo Shatters One Man’s American Dream.” USA Today 1 July 2004. Retrieved 31 Jan.

2009, from http://www.usatoday.com/news/opinion/columnist/shapiro/2004-07-01-hype_x.htm. Refer also to the Chatham
Peace Initiative, a Columbia County citizens group that formed the Ansar Mahmood Defense Committee. Available at http://
www.chathampeace.org.
16 Semple, Kirk. “Man Arrested Over Photos After 9/11 Is Deported.” New York Times 14 Aug. 2004. Retrieved 31 Jan.

2009, from http://query.nytimes.com/gst/fullpage.html?res=9D01E2D9153FF937A2575BC0A9629C8B63.

17 Simon, Jonathan. Personal interview by Aarti Shahani and Judith Greene. 21 Mar. 2008. On file with authors.
18 See Chapter II: The Arizona Laboratory. In 1924, Congress both created categories of criminal activity that could result in

deportation, and made crossing the border without inspection the first immigration offense punishable by the criminal courts.
Since then, the types of state crimes that can result in deportation and the types of immigration violations that can lead to
criminal prosecution have grown. Since 2006 the National Conference of State Legislators has monitored this movement. See
regularly updated reports at http://www.ncsl.org/programs/immig/index.htm. Last visited 8 July 2008.
19 Bureau of Justice Statistics. Special Report: Immigration Offenders in the Federal Criminal Justice System, 2000.

Washington: Department of Justice, August 2002. Retrieved 31 Jan. 2009, from http://www.ojp.usdoj.gov/bjs/pub/pdf/
iofcjs00.pdf.
20 Transactional Records Access Clearinghouse. Prosecution of Immigration Cases Surge in U.S., Sentences Slump, Massive

Jump Found in One Judicial District. Syracuse: Syracuse University, 2005. Retrieved 22 July 2008, from http://trac.syr.edu/
tracins/latest/131.
21 Office of Inspector General. Coordination Between FBI and ICE on Investigations of Terrorist Financing.

Washington: Department of Homeland Security, July 2007. Retrieved 31 Jan. 2009, from http://grassley.senate.gov/
releases/2007/08102007.pdf.
22 Office of Inspector General. DHS’ Progress in Addressing Coordination Challenges Between Customs and Border

Protection and Immigration and Customs Enforcement. Washington: Department of Homeland Security, April 2007.
Retrieved 31 Jan. 2009, from http://trac.syr.edu/immigration/library/P1804.pdf.
23 Office of Inspector General. Technical Security Evaluation of U.S. Immigration and Customs Enforcement Activities at

the Chet Holifield Federal Building (redacted). Washington: Department of Homeland Security, May 2008. Retrieved 31 Jan.
2009, from http://trac.syr.edu/immigration/library/P2720.pdf.
24 Office of Inspector General. A Review of Immigration and Customs Enforcement Discipline Procedures. Washington:

Department of Homeland Security, August 2006. Retrieved 31 Jan. 2009, from http://trac.syr.edu/immigration/library/P1066.
pdf.
25 Office of Inspector General. An Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations

Teams. Washington: Department of Homeland Security, March 2007. Retrieved 31 Jan. 2009, from http://www.dhs.gov/xoig/
assets/mgmtrpts/OIG_07-34_Mar07.pdf.
26 See: Senate Committee on the Judiciary Hearing. The Insurrection Act Rider and State Control of the National Guard (24

Apr. 2007) (testimony of Ted G. Kamatchus). Retrieved 31 Jan. 2009, from http://www.sheriffs.org/userfiles/file/Congressiona
l%20Testimony/Testimony,Kamatchus_Insurrection_Act_Written_Testimony.pdf.

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LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

Immigration expert Roberto Lovato makes a similar observation in his essay describing ICE as a paramilitary force. See:
Lovato, Roberto. “One Raid at a Time: How Immigrant Crackdowns Build the National Security State.” The Public Eye 23.1.
(Spring 2008). Retrieved on 5 Sept. 2008, from http://www.publiceye.org/magazine/v23n1/immigrant_crackdowns.html..
27 Greene, Judith, and Kevin Pranis. Gang Wars: The Failure of Enforcement Strategies and the Need for Effective Public

Safety Strategies. Washington: Justice Policy Institute, July 2007. Available at http://justicestrategies.org/?q=node/123.

28 Bernstein, Nina. “Raids Were a Shambles, Nassau Complains to U.S.” The New York Times 3 Oct. 2007. Retrieved 24
Sept. 2008, from http://www.nytimes.com/2007/10/03/nyregion/03raid.html.
29 See: Nassau County Executive. “Suozzi and Mulvey Call for Federal Investigation of Immigration and Customs
Enforcement (ICE) Raids in Nassau. Among Charges: Tactics Compromised Safety of Nassau County Police Officers and
the Public” [press release]. Nassau County Executive website. 2 Oct. 2007. Retrieved 11 Oct. 2007, from http://www.
nassaucountyny.gov/agencies/countyexecutive/NewsRelease/2007/10-2-2007.html.
30 For the ICE fact sheet on its gang enforcement initiative, Operation Community Shield, see http://www.ice.gov/pi/

investigations/comshield. For an overview of the growth of gang taskforces in US law enforcement agencies, see: Greene,
Judith, and Kevin Pranis. Gang Wars: The Failure of Enforcement Strategies and the Need for Effective Public Safety Strategies.
Washington: Justice Policy Institute, July 2007. Available at http://justicestrategies.org/?q=node/123.

31 Lipton, Eric. “Official Had Controversial Photos Deleted, Report Says.” The New York Times 9 Apr. 2008. See

also: Committee on Homeland Security. The ICE Halloween Party: Trick, Treat, or Cover-up? Washington: House of
Representatives, April 2008. Available at http://homeland.house.gov/SiteDocuments/20080408171515-43354.pdf.
32 Office of the Press Secretary. “Statement by Homeland Security Secretary Michael Chertoff on the Resignation of the
Assistant Secretary of U.S. Immigration and Customs Enforcement” [press release]. Washington: Department of Homeland
Security, 5 Nov. 2008. Retrieved 31 Jan. 2009, from http://www.dhs.gov/xnews/releases/pr_1225920873224.shtm.
33 O’Hara, Patrick. Why Law Enforcement Organizations Fail: Mapping the Organizational Fault Lines in Policing. Durham,
NC: Carolina Academic Press, 2005.
34 Immigration and Customs Enforcement. Office of Detention and Removal. Fact sheet: Partners, ICE ACCESS.

Washington: Department of Homeland Security, 15 Apr. 2008. Available at http://www.ice.gov/partners/dro/iceaccess.htm.
35 The current ICE detention system consists of more than 400 local and state facilities acquired through IGSAs; seven

contract detention facilities; eight ICE-owned facilities and five Bureau of Prisons (BOP) facilities, which are either funded
directly through congressional appropriations to BOP or through ICE reimbursement. Approximately fifty-two percent of the
ICE population is designated to IGSA, nineteen percent to contract facilities, eighteen percent to ICE-owned facilities, and
eleven percent to BOP facilities. See, ICE Detention Management Program at http://www.ice.gov/partners/dro/dmp.htm.
36 Siskin, Alison, et al. Immigration Enforcement Within the United States. Washington: Congressional Research Service, 6
Apr. 2006. Available at http://digitalcommons.ilr.cornell.edu/crs/15.
37 Siskin, Alison, et al. Immigration Enforcement Within the United States. Washington: Congressional Research Service, 6
Apr. 2006. Available at http://digitalcommons.ilr.cornell.edu/crs/15.
38 Black, Andrea. Personal interview by Aarti Shahani. 15 Jan. 2009. On file with authors.
39 Immigration and Customs Enforcement. Office of Detention and Removal. Endgame: Detention and Removal Strategic

Plan 2003–2012. Washington: Department of Homeland Security, June 2003.

40 The codified standards are available from: Immigration and Customs Enforcement. Office of Detention and Removal.
Detention Operations Manual. Washington: Department of Homeland Security, 17 Nov. 2008. Available at http://www.ice.
gov/pi/dro/opsmanual/index.htm.
41 The detention system suffered from chronic abuse prior to the formation of ICE. The Office of Inspector General
investigated the rampant abuse of detainees who were held without charge, indefinitely, and in abusive conditions by ICE
predecessor, Immigration and Naturalization Service, following September 11, 2001. See: Office of Inspector General.
September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the
Investigation of the September 11 Attacks. Washington: Department of Justice, June 2003. Available at http://www.usdoj.gov/
oig/special/0306/full.pdf.

87

ENDNOTES

42 Bolick, Clint. Mission Unaccomplished: The Misplaced Priorities of the Maricopa County Sheriff’s Office.

Phoenix: Goldwater Institute, 2 Dec. 2008.. Available at http://www.goldwaterinstitute.org/Common/Img/
Mission%20Unaccomplished.pdf.

43 See: Office of Inspector General. Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement

Facilities. Washington: Department of Homeland Security, 22 Dec. 2006. Retrieved on 31 Jan. 2009, from http://www.dhs.
gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf.

ICE violated the standards which specify that all detainees are entitled to “reasonable and equitable access” to telephones; and
to call legal services, consulates, and the Office of Inspector General hotline at no charge to the detainee or the receiving party.
See: General Accountability Office. GAO-07-875, Alien Detention Standards: Telephone Access Problems Were Pervasive at
Detention Facilities; Other Deficiencies Did Not Show a Pattern of Noncompliance. Washington: Government Accountability
Office, July 2007. Available at http://www.gao.gov/htext/d07875.html.
44 General Accountability Office. GAO-07-875, Alien Detention Standards: Telephone Access Problems Were Pervasive at

Detention Facilities; Other Deficiencies Did Not Show a Pattern of Noncompliance. Washington: Government Accountability
Office, July 2007. Available at http://www.gao.gov/htext/d07875.html.
45 Office of Inspector General. OIG-07-28, ICE’s Compliance with Detention Limits for Aliens with a Final Order of

Removal from the United States. Washington: Department of Homeland Security, February 2007. Available at http://www.
dhs.gov/xoig/assets/mgmtrpts/OIG_07-28_Feb07.pdf.
46 Office of Inspector General. Detention and Removal of Illegal Aliens. Washington: Department of Homeland Security,

April 2006. Available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_06-33_Apr06.pdf.

47 Zwerdling, Daniel. “Immigrant Detainees Tell of Attack Dogs and Abuse.” National Public Radio 17 Nov. 2004. Retrieved

2 Dec. 2008, from http://www.npr.org/templates/story/story.php?storyId=4170152.

48 Zwerdling, Daniel. “U.S. Detainee Abuse Cases Fall Through the Cracks.” National Public Radio 18 Nov. 2004. Retrieved

2 Dec. 2008, from http://www.npr.org/templates/story/story.php?storyId=4173701.

49 Zwerdling, Daniel. “The Death of Richard Rust.” National Public Radio 5 Dec. 2005. Retrieved 2 Dec. 2008, from http://

www.npr.org/templates/story/story.php?storyId=5022866.

50 Zwerdling, Daniel. “The Death of Richard Rust.” National Public Radio 5 Dec. 2005. Retrieved 2 Dec. 2008, from http://

www.npr.org/templates/story/story.php?storyId=5022866.

51 Rosheuvel, Janis. Personal interview by Aarti Shahani. 2 Dec. 2008. On file with authors.
52 Representative Robert Scott (D-Virginia) offered an amendment to H.R. 4437 (The Border Protection, Anti-terrorism, and

Illegal Immigration Control Act of 2005), to conduct a GAO study on deaths in immigration custody. On file with authors.
53 “House Judiciary Committee Letter to Government Accountability Office.” 14 Dec. 2005. On file with authors.

54 Bernstein, Nina. “Few Details on Immigrants Who Died in Custody.” New York Times 5 May 2008: 1. Retrieved 3 Dec.

2008, from http://www.nytimes.com/2008/05/05/nyregion/05detain.html?_r=1&scp=3&sq=bah%20death%20&st=cse.
55 Priest, Dana, and Amy Goldstein. “System of Neglect: As Tighter Immigration Policies Strain Federal Agencies, the

Detainees in Their Care Often Pay a Heavy Cost.” Washington Post 11 May 2008: A1. Retrieved 3 Dec. 2008, from http://
www.washingtonpost.com/wp-srv/nation/specials/immigration/cwc_d1p1.html.
56 Representative Zoe Lofgren introduced the first bill to make legally binding detention conditions. See: H.R. 5950,

Detainee Basic Medical Care Act of 2008 110th Cong., 2nd sess. (2008). Retrieved 31 Jan. 2009, from http://thomas.loc.gov/
cgi-bin/query/z?c110:H.R.5950. New Jersey Senator Robert Menendez introduced the companion bill in the Senate.
57 Grijalva commented on the government’s own violations of law and order in the immigration system: “When we look at

our policy [we see] that [it] has been primarily focused on enforcement and security and enforcement and security with no
balance of what humanitarian issues are out there, what the rule of law issues are out there, what due process issues are out
there, and no balance trying to solve this immigration law of ours in a way that lends some respect and dignity to the process
and to the people involved.” See: Starr, Penny. “Arizona Group Accuses Border Patrol of Routinely Abusing Illegal Aliens.”
CNS News 18 Sept. 2008. Retrieved 2 Dec. 2008, from http://www.cnsnews.com/public/Content/Article.aspx?rsrcid=35979.

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LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

58 No More Deaths. Crossing the Line: Human Rights Abuses of Migrants in Short-Term Custody on the Arizona/Sonora

Border. Tucson, AZ: No More Deaths, Sept. 2008. Available at http://nomoredeaths.org/index.php?option=com_content&task
=view&id=38&Itemid=31.
59 No More Deaths. Crossing the Line: Human Rights Abuses of Migrants in Short-Term Custody on the Arizona/Sonora

Border. Tucson, AZ: No More Deaths, Sept. 2008. 5. Available at http://nomoredeaths.org/index.php?option=com_content&t
ask=view&id=38&Itemid=31.

CHAPTER 4. New Jersey Dollars & Sense
1 “Morris County, New Jersey: 2005-2007 American Community Survey 3-Year Estimates.” American FactFinder. 2008.

Bureau of the Census. Retrieved 20 Jan. 2009, from http://factfinder.census.gov.

2 “Morris County, New Jersey: Census 2000 Demographic Profile Highlights.” American FactFinder. 2008. Bureau of

the Census. Retrieved 10 Sept. 2008, from http://factfinder.census.gov; and “Morris County, New Jersey: Census 2006
Demographic Profile Highlights.” American FactFinder. 2008. Bureau of the Census. Retrieved 10 Sept. 2008, from http://
factfinder.census.gov. While the number of Whites increased, the percentage of Whites in the total population decreased from
eighty-seven percent in 2000 to eighty-three percent in 2006. In contrast, the percentage of foreign-born residents increased
from fifteen percent in 2000 to nineteen percent in 2006.
3 McDermott, Maura. “Day Labor Woes Face Candidates in Morris.” The Star-Ledger 30 Oct. 2005: 30.
4 McDermott, Maura. “Day Labor Woes Face Candidates in Morris.” The Star-Ledger 30 Oct. 2005.
5 Cresitello, Donald. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
6 Cresitello, Donald. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
7 McDermott, Maura. “Town seeks new power over illegal immigrants: Morristown wants to give its police the same authority

as federal officers.” The Star-Ledger 13 Mar. 2007: 3. See comments of Chief Peter Demnitz who cited the Major Cities Chiefs
Association opposition to local police enforcement of immigration laws.
8 Mejia, Diana. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.

9 Donohue, Brian, and McDermott, Maura. “More Than Immigration Agents Morristown Cops, Unlike Other ICE Deputies,

Would Practice Street-Level Enforcement.” The Star-Ledger 30 Mar. 2007: 19.

10 Cresitello, Donald. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
11 “Letter from Immigration and Customs Enforcement to Consulate General of Colombia.” 10 Oct. 2007. On file with
authors.
12 McDermott, Maura. “Town Seeks New Power Over Illegal Immigrants: Morristown Wants to Give Its Police the Same

Authority as Federal Officers.” The Star-Ledger 13 Mar. 2007: 3. See also: Hassan, Minhaj. “Groups Worry About Morristown
Immigration Plan.” Morristown Daily Record 21 Mar. 2007: 32.
13 Pilar (member, Winds of the Spirit). Last name omitted for fear of immigration enforcement action. Personal interview by

Aarti Shahani. 21 Feb. 2008. On file with authors.

14 Cresitello, Donald. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
15 Morristown Pro-America rally. Personal notes by Aarti Shahani. 28 July 2007. On file with authors.
16 Hassan, Minhaj. “Morristown Police Put Cost of Rally OT at $18K.” Morristown Daily Record 5 Aug. 2007: 2.
17 Lozano, et al. v. City of Hazleton. No. 3:06 CV 1586 (M.D. Pa. 2006). The federal judge in a Pennsylvania federal district

court ruled that the city of Hazleton violated the Supremacy Clause of the Constitution when it passed a measure to penalize
landlords and employers who rent to and hire undocumented immigrants, respectively.
18 Maura McDermott, “Immigration Rallies Planned Today in Morristown,” The Star Ledger 28 July 2007. Retrieved 5 Nov.

2008, from http://blog.nj.com/ledgerupdates/2007/07/immigration_rallies_planned_to.html. See also, Stormfront.org: White
Pride Worldwide http://www.stormfront.org/forum/.

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ENDNOTES

15 Morristown Pro-America rally. Personal notes by Aarti Shahani. 28 July 2007. On file with authors.
16 Hassan, Minhaj. “Morristown Police Put Cost of Rally OT at $18K.” Morristown Daily Record 5 Aug. 2007: 2.
17 Lozano, et al. v. City of Hazleton. No. 3:06 CV 1586 (M.D. Pa. 2006). The federal judge in a Pennsylvania federal district

court ruled that the city of Hazleton violated the Supremacy Clause of the Constitution when it passed a measure to penalize
landlords and employers who rent to and hire undocumented immigrants, respectively.
18 Maura McDermott, “Immigration Rallies Planned Today in Morristown,” The Star Ledger 28 July 2007. Retrieved 5 Nov.

2008, from http://blog.nj.com/ledgerupdates/2007/07/immigration_rallies_planned_to.html. See also, Stormfront.org: White
Pride Worldwide http://www.stormfront.org/forum/.
19 County of Morris v. Nationalist Movement, Appellant, 273 F.3d 527 (3rd Cir. 2001).
20 Wind of the Spirit Meeting with Morris County Freeholders. Personal notes by Aarti Shahani. 5 Nov. 2007. On file with

authors.

21 “Federal agents sweep midstate for undocumented immigrants.” WTVF News, Nashville. 14 July 2008. Retrieved 10 Sept.

2008, from http://www.newschannel5.com/global/story.asp?s=8674115.

22 Wind of the Spirit Meeting with Mayor Donald Cresitello. Personal notes by Personal notes. 19 Dec. 2007. On file with

authors.

23 Cresitello, Donald. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
24 Ragonese, Lawrence. “The Project That Held a County Captive. Morris County Jail Ready to Open After Decades-Long

Odyssey.” The Star-Ledger 9 Jan. 2000: 31.

25 Ritchie, Diana (president, Collinsville Civic and Improvement League). Personal interview by Aarti Shahani. 5 Nov. 2007.

On file with authors. See also: Murray, Brian T. “Judge Rules Out Racism in Morris Jail Site Pick.” The Star-Ledger 8 Mar.
1995.
26 County of Gloucester v. State, 132 N.J. 141 (1993).

27 Morris County Sheriff’s Office. An Impact Review of the United States Bureau of Immigration and Customs Enforcement

287(g) Program Upon the County of Morris. Morris County, NJ: Sheriff’s Office, October 2007. 8. Estimate provided by the
accounting firm of Deloitte & Touche LLP to the County of Morris in January 1997.
28 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
29 Ragonese, Lawrence. “County Jail Weighs Lure of Housing U.S. Inmates.” The Star-Ledger 24 Jan. 1999: 35.
30 See Bureau of Justice Assistance. State Criminal Alien Assistance Program. “SCAAP Award Amounts” [2006 to 2008].

Available at http://www.ojp.usdoj.gov/BJA/grant/scaap.html.

31 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors. The Freeholders declined the

offer by US marshals against the advice of Sheriff Rochford and the county treasurer.

32 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
33 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
34 In the immediate aftermath of September 11, 2001, the most vocal protests came from Desis Rising Up and Moving, a

South Asian organization based in Queens, New York. See, http://www.drumnation.org/. Protest built within New Jersey
too, as evidenced by the growth of the New Jersey Civil Rights Defense Committee, an activist organization that developed
relationships with Passaic detainees, documented allegations of abuse, and frequently outreached to the media. See, http://
www.nj-civilrights.org/.
35 Morris County Sheriff’s Office. An Impact Review of the United States Bureau of Immigration and Customs Enforcement

287(g) Program Upon the County of Morris. Morris County, NJ: Sheriff’s Office, October 2007. 9.

36 Morris County Sheriff’s Office. An Impact Review of the United States Bureau of Immigration and Customs Enforcement

287(g) Program Upon the County of Morris. Morris County, NJ: Sheriff’s Office, October 2007. 9.

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LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

37 Zwerdling. Daniel. “Immigrant Detainees Tell of Attack Dogs and Abuse.” National Public Radio 18 Nov. 2004. Retrieved

5 Nov. 2008, from http://www.npr.org/templates/story/story.php?storyId=4170152.

38 Office of the Inspector General. Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement

Facilities. Washington: Department of Homeland Security. 22 Dec. 2006. While the report was critical, the New Jersey Civil
Rights Defense Committee charged that it understated abuse. The group, in partnership with Rutgers University, issued a
subsequent “shadow report.” Retrieved on 11 Nov. 2008, from http://www.nj-civilrights.org/archived/Home/20071003.htm.
In the immediate aftermath of the September 11th attacks, Amnesty International investigated New Jersey county jails
including Passaic County and issued its own report charging abuse. See: Amnesty International. USA: Amnesty International’s
Concerns Regarding Post September 11 Detentions in the USA. London: Amnesty International. 4 Mar. 2002. Retrieved 11
Nov. 2008, from http://www.amnesty.org/en/library/asset/AMR51/044/2002/en/dom-AMR510442002en.html.
39 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
40 Morris County Sheriff’s Office. An Impact Review of the United States Bureau of Immigration and Customs Enforcement

287(g) Program Upon the County of Morris. Morris County, NJ: Sheriff’s Office, October 2007. 8.

41 Bonnani, John. Personal interview by Aarti Shahani. 10 Oct. 2007. On file with authors. As of August 2008, neighboring

Hudson County Jail joined the ICE program without public hearing or media scrutiny. Local residents were not aware of the
new partnership with ICE until that November, when the federal agency updated its 287(g) factsheet, online at http://www.ice.
gov/pi/news/factsheets/section287_g.htm.
42 Morris County Sheriff’s Office. An Impact Review of the United States Bureau of Immigration and Customs Enforcement
287(g) Program Upon the County of Morris. Morris County, NJ: Sheriff’s Office, October 2007. In his report and personal
interview, Sheriff Rochford repeatedly and (we believe) unintentionally misstated that all of his deportable immigrants are
“illegal.” When asked, however, he clarified that all non-citizens, including lawful permanent residents (or green card holders),
are referred to ICE.
43 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
44 Morris County Sheriff’s Office. An Impact Review of the United States Bureau of Immigration and Customs Enforcement

287(g) Program Upon the County of Morris. Morris County, NJ: Sheriff’s Office, October 2007. 14.

45 See, for example: Immigration and Customs Enforcement. Factsheets: Delegation of immigration authority Section 287(g)

Immigration and Nationality Act. 6 Sept. 2007. This initial fact sheet, which was removed from the ICE website in late 2008,
continually focuses on the program as a response to criminal activity: “[Participants] ensure that criminal aliens incarcerated
within federal, state and local facilities are not released into the community upon completion of their sentences.” Also, local
partners purportedly “gain necessary resources and authority to pursue investigations relating to violent crimes, human
smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.”
46 Wind of the Spirit Meeting with Mayor Donald Cresitello. Personal notes by Personal notes. 19 Dec. 2007. On file with
authors.
47 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
48 Corrente, Frank. Personal interview by Aarti Shahani. 7 Jan. 2008. On file with authors.
49 If the jail referrals to ICE made 287(g) seem inessential, a statewide policy requiring police to call ICE suggested the

program was downright superfluous. In September 2007, following the murder of three students by an alleged undocumented
immigrant, New Jersey Attorney General Anne Milgram directed all police to check the immigration status of anyone arrested
for a “serious crime.” She defined the term expansively to include any indictable offense (misdemeanor or felony) and Driving
While Intoxicated. The directive expressly applies to “undocumented immigrants.” See: NJ Att’y Gen. Law Enforcement
Directive no. 2007-03. 22 Aug. 2007.
A subsequent memo to criminal and municipal court officers elaborates that flagging for ICE referral should occur “only if the
officer has reason to believe that defendant is an illegal immigrant.” [Emphasis in original.] The consistent reference to noncitizens who are out of status suggests that the AG directive does not apply to lawful permanents residents (green card holders).
See: Administrative Office of the Courts (NJ). Directive no. 11-07. 25 Oct. 2007.

91

ENDNOTES

The state directive permits an immigration inquiry if there is already basis for criminal arrest—the same slippery slope treaded
by 287(g) deputized officers nationwide. In response to the state order, Cresitello recited his own version of the Inherent
Authority Doctrine: “Any Morristown police officer has right to ask name, address, country of birth under federal law. Anne
Milgram can’t make NJ a sanctuary state, as she’s attempting to do.” See: Cresitello, Donald. Personal interview by Aarti
Shahani. 10 Mar. 2008. On file with authors.
The New Jersey statewide directive differs from an administrative order passed by New York City Mayor Michael Bloomberg,
which indicates that any city agency may report a non-citizen if “the individual to whom such information pertains is
suspected by such officer or employee of such officer’s or employee’s agency of engaging in illegal activity, other than mere
status as an undocumented alien…” See: New York City. Office of the Mayor. “Exec. Order No. 41, City-wide Privacy Policy
and Amendment of Executive Order No. 34 Relating to City Policy Concerning Immigrant Access to City Services.” 17 Sept.
2003.
50 Rochford, Edward. Personal interview by Aarti Shahani. 10 Mar. 2008. On file with authors.
51 Chen, Ronald. “Press Conference, Liberty State Park, Announcing the Creation of the Governor’s Blue Ribbon Advisory

Panel on Immigrant Policy” [remarks]. Trenton, NJ: Department of the Public Advocate, 6 Aug. 2007. Available at http://
www.nj.gov/publicadvocate/home/pdf/immigrantpolicypanel/ImmigrantSpeech080607.pdf.

52 Pearson, Robb. “Transformation: One year after the ProAmerica Rally.” The Daily Record 14 July 2008. Retrieved 15 July

2008. Available at http://www.dailyrecord.com.

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LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement

93

about the authors

94

Acknowledgements

AARTI SHAHANI, an investigative researcher and
policy analyst for Justice Strategies, has a decade of
experience in the fields of immigration and criminal
justice. She is an adjunct professor of immigration
history and community organizing at New York
University’s Gallatin School. From 2002 through 2007,
she co-directed Families for Freedom, an immigration
non-profit organization which she also co-founded.
Ms. Shahani has produced educational materials,
training manuals, and reports and white papers on a
variety of topics related to non-citizens in the criminal
justice system, deportation and prisons. Her work
has been cited in local and national media including
National Public Radio, The New York Times, El Diario
La Prensa, and The Chicago Tribune. Recent publications
co-authored by Ms. Shahani include “Families for
Freedom, Against Deportation and Delegalization,” a
chapter in Keeping Out the Other (Columbia University
Press); and “Collective Prosperity: The Power of a
Multiethnic Agenda, A New York Model” (Harvard
Journal of Hispanic Policy). Ms. Shahani has received
numerous awards, including the New Voices Fellowship
from the Ford Foundation; the Charles H. Revson
Fellowship from Columbia University; and the Union
Square Award.

During our research on this urgent and complex federal
program, numerous people generously gave us their
insights, expertise and time. The authors sincerely thank
for their unique contributions:

JUDITH GREENE is a criminal justice policy analyst
and a founding partner in Justice Strategies. Over the
past decade she has received a Soros Senior Justice
Fellowship from the Open Society Institute, served as
a research associate for the RAND Corporation, as a
senior research fellow at the University of Minnesota
Law School, and as director of the State-Centered
Program for the Edna McConnell Clark Foundation.
From 1985 to 1993 she was Director of Court
Programs at the Vera Institute of Justice. Ms. Greene’s
articles on criminal sentencing issues, police practices,
and correctional policy have appeared in numerous
publications, including The American Prospect,
Corrections Today, Crime and Delinquency, Current Issues
in Criminal Justice, The Federal Sentencing Reporter,
The Index on Censorship, Judicature, The Justice Systems
Journal, Overcrowded Times, Prison Legal News, The
Rutgers Law Journal, and The Wake Forest Law Review.

The report was edited by Amy Sonnie and designed by
Mizue Aizeki.

Charu al-Sahli, Jennifer Allen, Joe Arpaio, Andrea
Black, John Bonnani, Frank Corrente , Donald
Cresitello, PJ Crowley, Alina Das, Scott Decker, Bassina
Farbenblum, Tracy Friddle, Robin Goldfaden , Amy
Gottlieb, David Harris, Lydia Hernandez, Tom Jawetz,
Laura Jones, Subhash Kateel, Dan Kesselbrenner,
Bill Konopnicki, Phil Kretsedemas, Joanne Lin, Peter
Markowitz, Diana Mejia , Nancy Morawetz, Chris
Newman , Dan Pachoda, Russell Pearce, Kevin Pranis,
Lawrence Ragonese, Roberto Reveles, Salvador Reza,
Diana Ritchie , Helen Rivas, Edward Rochford, Liana
Rowe, Dan Saban, Luissana Santibáñez, Jose Serrano,
Rinku Sen, Kerri Sherlock, Dora Schiro, Jonathan
Simon, Kyrsten Sinema, Kathy Waters, Nicola Wells,
Seth Wessler, Eric Wingerter, Michael Wishnie, and the
staff and members of Detention Watch Network, the
Florida Immigrant Coalition, the National Day Labor
Organizing Network, and Wind of the Spirit.
We also thank the Open Society Institute-New York for
its invaluable financial support.

Justice Strategies, a project of the Tides Center, Inc., is a
nonpartisan, nonprofit research organization dedicated
to the proposition that grassroots movements can win
real criminal justice reforms if given access to the right
information and public education tools. Our mission
is to provide high quality “action research” to advocates
and policymakers working to change the laws, policies
and practices that drive mass incarceration and racial
disparity in the U.S., and who are pursuing more
humane and cost-effective approaches to criminal justice
and immigration law enforcement. Justice Strategies’
work is focused on sentencing and correctional
policy, the political economy of incarceration, and
the detention and imprisonment of immigrants. Our
researchers have represented their findings before
legislative committees and commissions, and at
professional conferences and community forums across
the country. They serve as a critical resource for the
policymakers, media, and organizations working on
policy reform at the local, state and national level.

LOCAL DEMOCRACY ON ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement