Cumberland County Sheriff Kevin Joyce will no longer cooperate with requests by Immigration and Customs Enforcement to hold prisoners at the county jail beyond their scheduled release, becoming the first jurisdiction in the state to take a stance against the controversial practice.
The policy shift comes as federal agents ramp up immigration enforcement across the nation, including in Cumberland County, where the number of ICE detainees has more than doubled from last year.
Joyce announced the decision in a Sept. 14 letter to ICE officials in South Portland, citing recent federal court decisions that undercut ICE’s authority to detain someone without providing a warrant from a judge or showing probable cause.
Cumberland County Sheriff Kevin Joyce, seen at a news conference in 2015, said this month that the county will no longer cooperate with requests by Immigration and Customs Enforcement to hold immigration detainees at the county jail beyond their scheduled release.
“As the sheriff of Cumberland County, I am sworn to uphold the law, even in the times that it may be inconvenient to the criminal justice system,” Joyce wrote. “I must maintain the delicate balance of the constitutional rights of all citizens and the inmates we hold in our jail.”
Detainers are one way to give federal agents time to arrest or follow up with a local jail inmate who they suspect should be placed in the deportation system. Otherwise the inmate could be released at any time by making bail, finishing a sentence or resolving their state legal case.
BACKING DETAINERS WITH WARRANTS
Joyce said the court decisions challenging the detainer practice include a 2015 case that originated in Rhode Island, where a naturalized U.S. citizen was detained by ICE. Judges have determined that holding a person simply at the request of another agency without probable cause was a violation of the Fourth Amendment right against unreasonable seizures.
“I’m not putting the taxpayers of Cumberland County at risk for holding somebody that we could be left holding the bag on,” Joyce said. “So if you think you’ve got something, get a warrant. We’ll honor the warrant.”
The sheriff said he would continue to honor detainers accompanied by a judicial warrant, and would house ICE inmates who are booked into the facility directly from ICE custody.
An ICE spokesman condemned the sheriff’s decision in a statement that called it “an extreme step in the wrong direction.”
Joyce’s announcement illustrates the complicated relationship between local law enforcement and federal immigration officials as the Trump administration ramps up its enforcement efforts.
So far this year, 83 people have been arrested or detained by ICE at the Cumberland County Jail – 11 through detainer requests and 72 who were directly arrested, the sheriff’s office said. In 2016, local ICE agents held 40 people at the jail, with five through detainer requests.
“What we’re seeing now is the enforcement policies have changed with President Trump’s executive order,” said Sue Roche, executive director of the Immigrant Legal Advocacy Project, which provides free and low-cost legal defense, including immigration counsel, to low-income Maine residents. “Pretty much everybody is an enforcement priority.”
Roche, along with the ACLU of Maine, applauded Joyce’s policy change.
The local ACLU sent information in March to all 16 Maine counties warning them of the legal risks of complying with federal demands on immigration enforcement.
“I’m glad to hear at least one sheriff has already decided (not to honor detainers) and I’m hoping more will follow,” said Zachary Heiden, legal director for the ACLU of Maine.
Shawn Neudauer, a spokesman for the Boston ICE office, was disappointed in Joyce’s decision.
“Time and time again we’ve seen tragic consequences because local jurisdictions declined to cooperate with U.S. Immigration and Customs Enforcement,” Neudauer said in a written statement. “Policies like this deliberately obstruct our country’s immigration laws and shelter serious criminal alien offenders.”
Neudauer said ICE has the authority to obtain criminal arrest warrants and the authority to make warrantless arrests based on probable cause under federal law, but Joyce said that type of detailed information is not given to the sheriff’s department in support of a detainer.
LAWSUITS VS. THREAT OF CRIMES
The controversy illustrates a disconnect between local jails designed to handle state criminal cases, and the task of federal immigration officers, who operate largely under federal civil laws and have no power to bring criminal charges in state courts.
Joyce said the decision regarding ICE detainers presented only unfavorable options. He could risk a costly lawsuit if he held a detainee beyond the release date without a warrant, but he also worries that a detainee could go on to hurt someone after release – examples of which the Trump administration has highlighted as a reason to continue to hold detainees.
“It’s a damned if you do, damned if you don’t issue,” Joyce said.
It’s unclear what happens to ICE detainees after they are moved out of Cumberland County. The federal agency does not have a detention facility in Maine, and officials do not release the identities of people arrested, so detainees are difficult to track.
Jonathan F. Thompson, executive director of the National Sheriff’s Association, said his advocacy group has been working with the Department of Homeland Security to find a way to provide legal cover in the face of lawsuits while also honoring ICE detainers – but so far has no solutions.
“I think we’re in a constitutional conundrum,” Thompson said. “As much as we all want dangerous criminals off the street, even illegal criminal aliens have constitutional rights.”
Thompson said members around the country are “vexed terribly” by what is at stake.
“It’s a simple question your readers should ask themselves: Is one criminal illegal alien on the street satisfactory? And the answer should be no, in our estimation,” he said. “But we cannot violate any one person’s constitutional rights.”
OTHERS STOP HONORING DETAINERS
Plaintiffs around the country have received tens of thousands of dollars in judgments or settlements in which they were the subject of a wrongful ICE detainer, including one New York City case that resulted in a $145,000 payout.
At least 197 jurisdictions across the country already have taken similar steps to stop honoring ICE detainers without a warrant, according to a list published by ICE earlier this year.
Oxford County Sheriff Wayne Gallant, president of the Maine Sheriff’s Association, did not respond to a request for comment Monday, and Androscoggin County Sheriff Eric G. Samson said his agency rarely deals with ICE holds, but would examine the court cases to decide what he would do if requested.
In York County, Sheriff William King said his jail has not seen an ICE detainer request in the two years he’s been in charge, but if he did receive one, he would not honor it for legal reasons.
“It’s really risk-avoidance on my part,” King said.
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