About half of Pennsylvania's 67 counties have stopped honoring federal demands to detain county jail inmates beyond their eligible release dates, ending the practice of holding them solely to accommodate Immigration and Customs Enforcement investigations, according to "A Changing Landscape," the first comprehensive study of "ICE holds" in Pennsylvania.
The 51-page study, released this week by the Stephen and Sandra Sheller Center for Social Justice of Temple University's Beasley School of Law, is based on a survey sent to county officials in August.
In March 2014, the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled that Lehigh County was liable for damages for wrongfully detaining Ernesto Galarza, a U.S. citizen who, despite posting bail and telling his jailers he was born in New Jersey, was incarcerated for four days because of an ICE detainer.
That landmark ruling led many Pennsylvania counties to adopt new policies and practices in 2014, according to the report researched and written by four Temple law students and prepared in collaboration with the American Civil Liberties Union of Pennsylvania and the Pennsylvania Immigration and Citizenship Coalition, an organization of immigrant advocacy groups.
The report was based on a questionnaire, submitted as a Right to Know request under Pennsylvania law, and on follow-up telephone interviews with county officials. The three questions asked were:
Does the county have a written policy on ICE detainers?
Does the county hold people based on detainer requests?
Does the policy apply to every law enforcement agency in the county?
Four of the state's 67 counties do not operate jails. Twelve counties ignored the survey or did not provide sufficient information to be categorized.
Of the 52 counties that responded, 32 said they do not honor ICE detainers and 20 said they do.
The counties that do not often cited the Galarza case as their rationale. In the counties that honor detainers, some officials said they believed it was their obligation. Others said they had modified their practices in ways they believed would reduce the likelihood of liability.
Berks County, for example, said it honors detainers but reduced the holding time to just four hours.
An ICE hold, also known as a detainer, is a request to local law enforcement to hold a person suspected of being in the country illegally for up to 48 hours after the normal release date so that ICE can take custody of the person for possible deportation.
Critics of the practice say detainers are unreliable and susceptible to abuse because they come directly from ICE, do not require a court finding of probable cause, and can be issued on mere suspicion that a person has violated a civil immigration law.
By ending or limiting ICE holds, cities and counties in about 23 states and the District of Columbia have curtailed the local-federal collaboration on immigration enforcement that had been in place since about 2008.
In Philadelphia, Mayor Nutter put an end to all ICE holds not supported by a warrant with an executive order issued in April. Nutter acted after the Philadelphia Family Unity Network, an umbrella group of advocates for immigrants, campaigned for the change.
Also not honoring detainers, according to the Temple study, are the Southeastern Pennsylvania counties of Bucks, Chester, Delaware, and Montgomery.
The trend in Pennsylvania "is moving away from honoring ICE detainers" as county officials "realize there is a huge liability" for erroneous incarceration, said Jennifer J. Lee, director of Temple's Social Justice Lawyering Clinic, through which she supervised the student-authors of the report.
"Clearly Galarza is a big stick prodding" county governments to change, she said. But another finding is that localities, faced with limited resources and limited bed space, "don't want to do an unfunded federal job."
When they realized that detainers are a choice, not a mandate, she said, many opted out.
ICE Demands, County by County
According to a Temple University report, here is how each of the 67 counties in Pennsylvania handles federal demands to detain county jail inmates beyond their eligible release to accommodate Immigration and Customs Enforcement (ICE) investigations:
Does not honor demand with a written policy
Bedford, Bradford, Bucks, Butler, Chester, Clarion, Delaware, Erie, Lebanon, Lehigh, Lycoming, Montgomery, Montour, Perry, Philadelphia, Pike, Westmoreland.
Does not honor demand with no written policy
Armstrong, Blair, Carbon, Columbia, Elk, Fayette, Jefferson, Lackawanna, Mifflin, Somerset, Susquehanna, Tioga, Washington, Wayne, York.
Honors demand with a written policy
Honors demand with no written policy
Adams, Beaver, Cambria, Centre, Clearfield, Clinton, Forest, Franklin, Luzerne, Mercer, Monroe, Potter, Schuylkill, Snyder, Union, Venango, Warren, Wyoming.
No facilities to detain
Cameron, Fulton, Juniata, Sullivan.
Supplied insufficient information
Allegheny, Crawford, Cumberland, Dauphin, Greene, Huntingdon, Indiana, Lancaster, Lawrence, McKean, Northumberland.