By Laurence Benenson & Jonathan Haggerty
February 26, 2020 at 5:00 am ET
What exactly is a sanctuary city? There is no single definition. Yet in recent weeks, Attorney General William Barr once again has put so-called sanctuary cities squarely in the line of the Trump administration’s fire.
Speaking before the National Sheriffs’ Association this month, Barr claimed that “sanctuary jurisdictions” help criminals “escape back into the community.” He promised the Department of Justice would file suit against the State of New Jersey and King County in Washington state. And he accused local district attorneys of “violating the rule of law” when taking immigration consequences into account when making charging determinations.
Barr’s comments were seriously misguided and overlook the importance of building community trust.
Here are the facts: In most instances, it is lawful— and smart — for jurisdictions to maintain policies the administration is attacking. Most jurisdictions’ policies are modest, such as commonsense limitations that restrict when law enforcement can inquire into individuals’ immigration status or when an individual can be kept in custody in the absence of a criminal warrant or court order.
To be clear, states and localities should not prevent federal immigration enforcement agencies from carrying out their mission. For example, policies that categorically would limit all communications between local law enforcement and federal authorities regarding immigration status go too far. But in the vast majority of circumstances, local elected officials and law enforcement leaders are not being obstructionists. Instead, facing limited resources and competing priorities, these localities leave it to federal authorities to fulfill their legal responsibility to carry out federal immigration enforcement.
Community safety is at stake. Many localities have adopted community policing strategies, which recognize that state and local law enforcement need the trust of their communities. An individual fearing that he or she might be subjected to deportation after reporting crimes or working with law enforcement is less likely to report that crime in the first place. According to a survey of Mexican nationals from the University of California at San Diego’s U.S. Immigration Policy Center, 60.8 percent of respondents would be less likely to report a crime they witnessed if they knew that the city was actively working with Immigration and Customs Enforcement on deportations; 42.9 percent said they would be less likely to report being a victim of a crime. Localities should not be punished for strategies that have proved effective in encouraging victims and witnesses to come forward.
Barr’s comments also threaten the longstanding principle, inherent in American federalism, of local control in law enforcement. Local control is undermined when the federal government pressures local police departments to carry out federal immigration enforcement policies or when the Department of Justice reviews the charging decisions of local prosecutors.
As Supreme Court Justice Antonin Scalia explained, the Constitution’s anti-commandeering doctrine prevents the federal government from issuing “directives requiring the States to address particular problems,” or from directing state and local officials “to administer or enforce a federal regulatory program.” More specifically, former Trump administration Attorney General Jeff Sessions has emphasized the importance of maintaining local control in law enforcement.
Several cities have elected reform-minded district attorneys who have pledged to promote community trust. Whether through deprioritizing low-level drug possession offenses or taking immigration consequences into consideration in charging decisions, the use of prosecutorial discretion can help earn the trust of the broader community. Such policies allow prosecutors to focus on more serious threats to public safety, while creating goodwill in minority and immigrant communities that previously might have been hesitant to trust the justice system.
Local law enforcement’s top priority is keeping families safe, and it is best positioned to do so when it gains the trust and cooperation of all the people in its jurisdictions. And, contrary to Barr’s assertion that these prosecutors are “progressive” ideologues, an emerging field of conservative, reformer prosecutors have aligned themselves with the criminal justice reform movement and have stressed the importance of smarter prosecutions and community trust.
There is no doubt that Attorney General Barr’s remarks were rooted in a real concern for public safety. But his approach would ultimately weaken public safety by making many people afraid to work with law enforcement.
Rather than cast scathing generalizations, the attorney general should work with local law enforcement to balance immigration enforcement and local community trust. Earnest cooperation between law enforcement at all levels will protect the public; name-calling and lawsuits certainly won’t.
Laurence Benenson is the assistant vice president of policy & advocacy at the National Immigration Forum. Jonathan Haggerty is the resident fellow for criminal justice & civil liberties at the R Street Institute.
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