This is an excellent report. Thank you, Commissioner Bonner.
Robert C. Bonner, Commissioner
Los Angeles County Sheriff Civilian Oversight Commission
333 South Grand Avenue
Los Angeles, CA 90071
February 13, 2019
Patti Giggans, Chair
Los Angeles County Sheriff Civilian Oversight Commission
350 South Figueroa Street, Suite 288
Los Angeles, CA 90071
Re: Objections to Recommendations 1, 9 and 10 of the
Immigration Ad Hoc Committee
Immigration Ad Hoc Committee
Dear Chair Giggans,
As you know, the Immigration Ad Hoc Committee has presented
a report dated November 15,
a report dated November 15,
2018 containing 12 proposed recommendations,1
which I am understand
will be on the agenda
will be on the agenda
for our February 26 meeting. For reasons stated below, I
oppose Recommendations 1, 9, and 10
oppose Recommendations 1, 9, and 10
and hope these will be deleted from the recommendations
adopted by the full Commission.
adopted by the full Commission.
While I address my concerns about each of the three
recommendations below, the effect of these
recommendations below, the effect of these
recommendations, individually and in combination, is to
preclude transfer of custody from the
preclude transfer of custody from the
Los Angeles County Sheriff’s Department to federal
immigration authorities of persons
immigration authorities of persons
convicted of serious and violent crimes who are not lawfully
in the United States. The job of the
in the United States. The job of the
Sheriff, first and foremost, is public safety, and
preventing such transfers will negatively impact
preventing such transfers will negatively impact
public safety in Los Angeles County.
Recommendations 1, 9 and 10 are unwise, adversely affect
public safety, and go well beyond
public safety, and go well beyond
what is required by state law. These recommendations have
the effect of protecting convicted
the effect of protecting convicted
aliens not legally in the U.S. Indeed, the effect of the
recommendations is to shield aliens who
recommendations is to shield aliens who
have been convicted of serious criminal activity from being
deported. Adopting these
deported. Adopting these
recommendations will make our community less safe.
I. Background
Some have argued that SB 54 (also known as the “Values Act”)
has made California a
has made California a
“sanctuary” state. This overstates the case. To be sure, SB
54 significantly limits the ability of
54 significantly limits the ability of
local law enforcement to cooperate with federal immigration
authorities. But the three
authorities. But the three
recommendations of the Ad Hoc committee go much further.
They go well beyond the carefully
They go well beyond the carefully
crafted compromise of SB 54.
SB 54, as enacted, made a policy judgment that certain
enumerated crimes were sufficiently
enumerated crimes were sufficiently
serious that California’s sheriffs are permitted to transfer
persons, who are in the U.S. illegally
persons, who are in the U.S. illegally
and convicted of these crimes, to federal immigration
authorities. These enumerated crimes
authorities. These enumerated crimes
include: 2
(1) Sexual abuse and exploitation of children,
(2) Crimes resulting in death or involving infliction of
great bodily injury,
great bodily injury,
(3) Crimes requiring a sex offender to register under the
California Penal Code,
California Penal Code,
(4) Torture and mayhem,
(5) Hate crimes,
(6) Rape,
(7) Kidnapping,
(8) Burglary and Robbery, and
(9) Felony Drug Offenses involving the selling, distribution
and trafficking in hard drugs,
and trafficking in hard drugs,
such as heroin, fentanyl and meth.
In other words, these crimes involve serious and/or violent
criminal acts by persons who are not
criminal acts by persons who are not
lawfully in our country. Moreover, these are all crimes
punishable under state law as felonies.
punishable under state law as felonies.
II. Ad Hoc Committee’s Report does not analyze the public
safety impact of
safety impact of
the Recommendations.
The effect of Recommendations 1, 9 and 10 is to prohibit the
LASD from transferring an alien
LASD from transferring an alien
not legally in the U.S., but convicted of one of these
enumerated crimes, to federal immigration
enumerated crimes, to federal immigration
authorities. As a result, aliens unlawfully in the U.S. who
have committed serious crimes will be
have committed serious crimes will be
allowed to walk right out of the jail and back into our
community.
community.
Although there are clear public safety implications in
adopting these recommendations, the Ad
adopting these recommendations, the Ad
Hoc Committee’s report contains no analysis of the public
safety impact of its proposed
safety impact of its proposed
recommendations.
For this reason
alone, the three recommendations should be rejected by the
alone, the three recommendations should be rejected by the
full Commission. Absent an evaluation of impact on public
safety, we are not in a position to
safety, we are not in a position to
weigh the merits of the recommendations.
To move forward
without such an analysis would be irresponsible.
without such an analysis would be irresponsible.
III. There will likely be a significant adverse impact on
public safety if the
public safety if the
Recommendations are adopted.
According to a 2016 Office of Justice Programs study of
recidivism:
recidivism:
“Research has demonstrated that repeat offenders [person
convicted who repeat crime
convicted who repeat crime
after release] account for a disproportionate amount of
crime and that convicted offenders
crime and that convicted offenders
are re-arrested at a rate 30 to 45 times higher than the
general population. As a result,
general population. As a result,
there is a widespread recognition that recidivism has a
direct impact on public safety.”7
direct impact on public safety.”7
(Emphasis added.)
In addition to being serious and heinous crimes, many of the
enumerated crimes in SB 54 are
enumerated crimes in SB 54 are
well known to be “recidivistic.” In other words, a
significant percentage of people convicted of
significant percentage of people convicted of
these crimes, e.g., rape, robbery, and burglary, repeat
these offenses, most often in the
these offenses, most often in the
communities from which they came. According to the 2014
Bureau of Justice Statistics study,
Bureau of Justice Statistics study,
82% of property offenders (e.g., burglary) recidivate within
five years. For violent offenders, the
five years. For violent offenders, the
recidivism rate is 71%. It is recidivism, for example, that
has led California and other states to
has led California and other states to
require registration of sex offenders, acknowledging that
these criminals may pose an ongoing
these criminals may pose an ongoing
threat to the public.
The Sheriff’s job, first and foremost, is public safety. He
is charged with taking steps to increase
is charged with taking steps to increase
public safety, not steps that leave our community more
vulnerable to crimes, especially those as
vulnerable to crimes, especially those as
serious as the enumerated crimes. It is highly likely that
adopting Recommendations 1, 9 and 10
adopting Recommendations 1, 9 and 10
will negatively impact public safety in Los Angeles County.
For this reason alone, we should
For this reason alone, we should
vote against these recommendations.8
IV. There are adverse, unintended consequences if the
Recommendations are
Recommendations are
implemented.
Besides additional crimes committed by convicted aliens who
should not be in our country in the
should not be in our country in the
first place, there is another public safety risk if
Recommendations 1, 9 and 10 are adopted. If
Recommendations 1, 9 and 10 are adopted. If
persons have been convicted, for example, of robbery, rape
or an assault involving “great bodily
or an assault involving “great bodily
5
U.S. Dept. of
Justice, Bureau of Justice Statistics, Recidivism of State Prisoners (Apr.
2014),
Justice, Bureau of Justice Statistics, Recidivism of State Prisoners (Apr.
2014),
https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.
6 The limited information available regarding the recidivism
rate for aliens residing unlawfully in the U.S. who have
rate for aliens residing unlawfully in the U.S. who have
been convicted of crimes tends to indicate that it is not
significantly different from the rest of the population
significantly different from the rest of the population
convicted criminals. See, e.g., Sacchetti, Maria. “Criminal
Aliens Reoffend at Higher Rates than ICE has
Aliens Reoffend at Higher Rates than ICE has
Suggested,” The Boston Globe (June 4, 2016).
7 Office of Justice Programs, Chapter 5: Adult Sex Offender
Recidivism (2016),
Recidivism (2016),
https://www.smart.gov/SOMAPI/sec1/ch5_recidivism.html.
8 Even if they did not engage in further crime, the fact
remains that these individuals have been convicted of violent
remains that these individuals have been convicted of violent
or otherwise serious crimes and, as they are here illegally,
they have no right to remain in the U.S.
they have no right to remain in the U.S.
4
injury,” and are not transferred to federal immigration
authorities at or near the IRC (the intake
authorities at or near the IRC (the intake
and release area of the L.A. County Jail), we should ask
ourselves:
ourselves:
Do we really want armed ICE Agents going out into the
community and arresting them?
community and arresting them?
This is what we will be forcing ICE to do if these
recommendations are adopted, and there is
recommendations are adopted, and there is
every reason to believe that ICE will do so. When armed law
enforcement officers go out to the
enforcement officers go out to the
field to make arrests–as all law enforcement officers know
well–it potentially endangers other
well–it potentially endangers other
persons at the residence and in the nearby community as well
as law enforcement officers.
as law enforcement officers.
Is this what our Commission wants to happen?
In addition to the danger this creates, other persons in the
vicinity who are unlawfully in the U.S.
vicinity who are unlawfully in the U.S.
will also be arrested by ICE for deportation. These
“collateral” arrests can be avoided by
“collateral” arrests can be avoided by
transferring custody of convicted aliens, who are a primary
focus of ICE, in the secure
focus of ICE, in the secure
environment of the Los Angeles County jail.
In addition to the potential for recidivism, greater ICE
presence in Los Angeles County
presence in Los Angeles County
communities and more arrests of noncriminal aliens are among
the likely unintended
the likely unintended
consequences of the unwise policy that underlies
Recommendations 1, 9, and 10. The only
Recommendations 1, 9, and 10. The only
population that stands to benefit are convicted criminals
unlawfully in the U.S.
unlawfully in the U.S.
V. Comments on the Recommendations
A. Recommendation No. 1
The adoption of this recommendation precludes the LASD from
giving information to ICE
giving information to ICE
regarding the release date of a person: (1) convicted of one
of the crimes enumerated in SB 54,
of the crimes enumerated in SB 54,
(2) who is illegally in the U.S. and subject to deportation,
(3) “unless required by federal or state
(3) “unless required by federal or state
law.”9
There is no federal
or state law requiring release dates be made available to ICE, even
or state law requiring release dates be made available to ICE, even
when ICE has provided the LASD with a detainer. Suffice it
to say, if ICE is not given notice of
to say, if ICE is not given notice of
the release date of persons convicted of a SB 54 crime in
advance, the effect is likely to prevent
advance, the effect is likely to prevent
transfer of custody by the LASD to ICE, and these convicted
aliens will return to the community.
aliens will return to the community.
B. Recommendation No. 9
By denying ICE access to Inmate Reception Center (IRC) of
the LA County Jail, the effect of
the LA County Jail, the effect of
this recommendation is to prohibit the Sheriff from
transferring custody within the IRC of a
transferring custody within the IRC of a
person convicted of a SB 54 crime who is illegally in the
U.S. According to Recommendation 9,
U.S. According to Recommendation 9,
such access must be denied to ICE “unless required by
federal or state law.” What the Ad Hoc
federal or state law.” What the Ad Hoc
committee’s report fails to mention is that there is no law,
state or federal, that requires ICE be
state or federal, that requires ICE be
given access to the IRC. If the Sheriff does not give ICE
access to the jail, as it does every other
access to the jail, as it does every other
federal and out of state law enforcement agency, a safe
transfer of custody cannot take place.
transfer of custody cannot take place.
9 Over the history of our country, this information has been
provided routinely as a matter of comity, that is, as part
provided routinely as a matter of comity, that is, as part
of the cooperation needed between federal and local law
enforcement in order for our federal system to function. See Section VI, below.
enforcement in order for our federal system to function. See Section VI, below.
5
Even assuming ICE has notice of the release date in advance
(see Recommendation 1, however),
(see Recommendation 1, however),
this recommendation will have the effect of requiring a
transfer of custody outside of the IRC,
transfer of custody outside of the IRC,
potentially endangering others, including the convicted
individual, family members, bystanders,
individual, family members, bystanders,
local law enforcement as well as the ICE officers effecting
the arrest.
the arrest.
C. Recommendation No. 10
This recommendation will prohibit the LASD from honoring ICE
detainers “unless required by
detainers “unless required by
federal or state law.” A “detainer” is well understood by
law enforcement and prison officials.
law enforcement and prison officials.
An immigration detainer is based on an administrative
warrant issued by federal immigration
warrant issued by federal immigration
authorities. Indeed, administrative warrants and detainers
are the only process available for
are the only process available for
giving notice of a deportation hold on an illegal alien in
state custody. They have been used and
state custody. They have been used and
honored for decades to ensure that convicted aliens not
legally present in the U.S. are removed
legally present in the U.S. are removed
from the country instead of being released back into the
community where they were previously
community where they were previously
arrested.
The Ad Hoc committee, however, wants to forbid the Sheriff
from honoring administrative
from honoring administrative
warrants and detainers and only transfer custody to ICE if
ICE presents a criminal, sometimes
ICE presents a criminal, sometimes
called a “judicial,” warrant. However, a federal “judicial”
warrant can be issued only when there
warrant can be issued only when there
is to be a federal criminal prosecution. Most of ICE’s
detainers are for administrative deportation
detainers are for administrative deportation
proceedings, which are not criminal cases.
On its face, this recommendation has a patina of
reasonableness, but, in context, it requires ICE
reasonableness, but, in context, it requires ICE
to secure criminal charges, e.g., for illegally entering the
U.S.,10 filed by the U.S. Department of
U.S.,10 filed by the U.S. Department of
Justice. As the only action contemplated by ICE is
administrative deportation proceedings, we
administrative deportation proceedings, we
should not require the federal government to institute
federal criminal charges in order to satisfy
federal criminal charges in order to satisfy
the Ad Hoc Committee’s insistence on a federal criminal
warrant. Moreover, as a former United
warrant. Moreover, as a former United
States Attorney, I can state categorically that it is not
appropriate to criminally charge an alien in
appropriate to criminally charge an alien in
federal court merely to secure his custody for
administrative deportation. Indeed, most aliens
administrative deportation. Indeed, most aliens
who are unlawfully present would probably prefer not to be
prosecuted and convicted in federal
prosecuted and convicted in federal
court after serving time on a state charge.
The bottom line is that there is no federal or state law
requiring the Sheriff to honor an
requiring the Sheriff to honor an
administrative warrant and detainer. Thus, the effect of
this recommendation is that a person
this recommendation is that a person
convicted of a SB 54 crime, not legally in the U.S., will be
released back into our community.
released back into our community.
VI. The Recommendations undermine our federal system.
Under the United States Constitution, the Congress and the
federal government are charged with
federal government are charged with
creating and enforcing the laws relating to illegal
immigration. And under the U.S. Constitution,
immigration. And under the U.S. Constitution,
the federal law is supreme, overriding state laws that are
in conflict with it.11 While a local or
in conflict with it.11 While a local or
state agency is not required to affirmatively assist federal
authorities in enforcing federal law,
authorities in enforcing federal law,
they are also not free to thwart such efforts. Indeed, basic
principles of comity, essential to the
principles of comity, essential to the
10 See, e.g., 18 U.S.C. §§ 1325 and 1326.
11 See U.S. Const., Art. VI, Cl. 2.
6
smooth functioning of our federal system, suggest that no
local agency should be required to take
local agency should be required to take
measures that obstruct or defeat federal law enforcement.
The adoption of the three
The adoption of the three
recommendations tend to negate even that minimal level of
comity and cooperation essential to
comity and cooperation essential to
our federal union. As a Commission, we should not direct the
Sheriff to take steps that
Sheriff to take steps that
fundamentally undermine our federal system.12
VII. The adoption of the Recommendations will likely invite
increased illegal
increased illegal
migration of criminals into the U.S. and Los Angeles County.
The number of aliens illegally residing in the U.S. is
unknown, but it is estimated to be between
unknown, but it is estimated to be between
11 and 20 million people. Under our immigration laws, we
currently welcome nearly one million
currently welcome nearly one million
people annually as legal immigrants, including refugees, a
number that far exceeds any other
number that far exceeds any other
country in the world. As a nation that values and has
benefitted from immigration, we can and
benefitted from immigration, we can and
should continue to admit a large numbers of legal
immigrants. Because we are also a nation of
immigrants. Because we are also a nation of
laws, with a belief in the rule of law, it is appropriate to
take reasonable steps to discourage
take reasonable steps to discourage
further illegal migration–the most obvious and reasonable
of which is allowing federal
of which is allowing federal
immigration authorities to remove criminals, here illegally,
who have committed serious crimes
who have committed serious crimes
in Los Angeles County.
The effect of adopting these recommendations would be to
establish Los Angeles County as a
establish Los Angeles County as a
sanctuary for criminal aliens. Such a policy invites
criminals who illegally enter the U.S. – – a
criminals who illegally enter the U.S. – – a
small percentage of illegal migrants – – to come to places
where they will not be turned over to
where they will not be turned over to
ICE, no matter what crimes they commit. Because these
recommendations go beyond California
recommendations go beyond California
state law by seeking to shield even serious criminals from
immigration enforcement, we can
immigration enforcement, we can
reasonably anticipate that adopting them will incentivize
criminal aliens to seek shelter in Los
criminal aliens to seek shelter in Los
Angeles County.
VIII. The Ad Hoc Committee’s Recommendations are beyond the
scope of its
scope of its
mandate.
The Commission established the Ad Hoc committee for the
limited purpose of evaluating the
limited purpose of evaluating the
LASD’s compliance with the Sheriff’s policies described in
his letter dated January 10, 2017. Its
his letter dated January 10, 2017. Its
charter was and is coterminous with a request from the Board
of Supervisors, as follows:
of Supervisors, as follows:
“Request the Civilian Oversight Commission, in collaboration
with the Inspector General
with the Inspector General
and the Auditor-Controller, review, analyze and make
recommendations to the Sheriff’s
recommendations to the Sheriff’s
department’s adherence to the policies described in his
January 10, 2017 letter and any
January 10, 2017 letter and any
other relevant policies as needed to carry out the intention
of this policy and report back
of this policy and report back
in writing to the Board quarterly . . . .”
Despite this limited mandate, the Ad Hoc committee’s three
recommendations go far beyond
recommendations go far beyond
whether the LASD is adhering to of the policies set forth in
the Sheriff’s January 10, 2017 letter
the Sheriff’s January 10, 2017 letter
or the intent of those policies. Indeed, the Ad Hoc
committee appears to concede, and the
committee appears to concede, and the
12 Indeed, such a direction from us would potentially put
the Sheriff in the untenable position of violating that part
the Sheriff in the untenable position of violating that part
of his oath of office requiring him to support and defend
the U.S. Constitution.
the U.S. Constitution.
7
Inspector General has found, that the LASD has substantially
complied with the policy set forth
complied with the policy set forth
in the January 10, 2017 letter.13 Thus, the three
recommendations have virtually nothing to do
recommendations have virtually nothing to do
with what this Commission requested the Ad Hoc committee to
do.
do.
This is, of course, a procedural point, but it is an
important one for the governance of our
important one for the governance of our
Commission. The sound functioning of our Commission is aided
by ad hoc committees, but these
by ad hoc committees, but these
committees should stay within their mandate, unless they
request expansion of the scope of their
request expansion of the scope of their
mandate and such expansion is approved by the full
Commission. This did not occur in this
Commission. This did not occur in this
instance. If we failed to adhere to such a procedural rule,
any ad hoc committee could on its own
any ad hoc committee could on its own
expand the scope of its mandate and speak for the Commission
as a whole on any subject on
as a whole on any subject on
which it deems fit.
Conclusion
In the final analysis, Recommendations 1, 9 and 10 protect
criminals, are antithetical to public
criminals, are antithetical to public
safety, at odds with the public interest, and contrary to
the Sheriff’s obligation to promote public
the Sheriff’s obligation to promote public
safety. Accordingly, I would urge my fellow Commissioners to
reject them.
reject them.
Sincerely,
Robert C. Bonner
Commissioner
Cc: Brian Williams, Executive Director