The discussion about what the change in the enforcement plan for the Rule of Law Resolution actually means has generated a lot of conflicting commentary in the press and in the blogs. Given that confusion, it’s probably useful to walk through the differences in the enforcement policy as I understand them so readers can get a clearer picture of what this all means. This is how the new enforcement policy sorts out:
|Situation||Current Policy||New Policy||Change|
(sent to ADC)
|Suspect checked by officer if probable cause present, sent to ADC and subject to 287(g) screening||Suspect checked by officer, sent to ADC and subject to 287(g) screening||No effective change|
(not sent to ADC)
|Suspect checked by officer if probable cause present, held in police lockup, no 287(g) screening||Suspect checked by officer, held in police lockup, no 287(g) screening||More illegals checked|
|Non-Arrestable Violation||Suspect checked by officer if probable cause present, given ticket||Suspect checked by officer at his discretion, given ticket||Likely more illegals checked|
The first case here is one most people are pretty familiar with. Someone is suspected of committing a crime that they can be arrested for, and the end up being held at the Prince William County Adult Detention Center where they would be screened under the Section 287(g) Program, which is more thorough than the screening that a patrol officer would conduct. Under current policy, a police officer would check immigration status at the discretion of the officer and only if the suspect met the probable cause standard. The new policy removes the probable cause and discretion, and requires the police to conduct this check for all persons arrested. This could catch some additional illegal aliens because the discretion is removed here, and in some cases it is possible that a suspect could have evaded the probable cause standard under the current policy and not be screened at the ADC, but that number is probably minimal.
The second case is one that most folks don’t know about. Just because a suspect is arrested doesn’t mean they end up at the ADC. In some cases a suspect is arrested and hauled in front of a magistrate, and then released on bond. Under current policy a suspect would have their immigration checked at the discretion of the officer and only if the probable cause standard is met. Under the new policy, all arrestees are checked, period. This could make a pretty significant difference, and will increase the number of persons checked for immigration status.
The third case, where a suspect is released with a ticket, warning, or nothing at all is where most of the confusion lies. Under the current policy, we again have immigration checks done at the discretion of an officer, subject to probable cause. The change here is that the probable cause requirement here seems to have been removed. Officers will still check immigration status of those detained for non-arrestable offenses (it can’t be prohibited under 8 U.S.C. 1373) at their discretion, but aren’t required to vault the probable cause hurdle. My understanding here is that since a suspect isn’t being subjected to detention, the opportunity for a successful civil rights lawsuit is either absent or tremendously low. Whether this increases or decreases the number of immigration checks that will be performed remains to be seen, but since it’s easier for an officer to conduct these checks, it’s pretty likely that more checks will be performed.
This third case potentially accounts for the majority of officer interactions with suspected illegal aliens. There are thousands of officer interactions with potential suspects each month. During the first month of enforcement, the number of immigration checks actually performed on persons not subject to arrest was about fifty. Officers I’ve talked to tell me that the proportion of likely illegal aliens they encounter in the course of their duties is a lot higher than the tiny percentage of persons we actually do see checked for immigration status now, so I am pretty sure that this change will account for a dramatic rise in the number of immigration status checks that will be performed.
Just watch what happens to the number of immigration status checks that the police will conduct in the coming months. Anyone hoping that the Rule of Law Resolution would be weakened is going to see that the number of immigration status checks will actually increase, and end up bitterly disappointed that their efforts actually resulted in an expansion of the enforcement program for the Rule of Law Resolution.
UPDATE: Riley at Virginia Virtucon has more on this.
UPDATE 2: Corey Stewart sent our an email to explain what happened as well:
As reported in today’s edition of the Washington Times, the Prince William Board of County Supervisors voted unanimously last night to strengthen and expand its crackdown on illegal immigration. See the story here: http://www.washingtontimes.com/article/20080430/METRO/823602705/1004. Prior to this change, our police officers could check the immigration status of only those people for whom the officer had probable cause to believe were illegal immigrants. Now, police MUST check the immigration status of ALL people who are arrested (including those arrested for less serious crimes and released on summons). Also, the Board retained the officers’ discretion to check immigration status of those detained for any purpose, even minor infractions. As a result of these actions, our police will be checking the immigration status of more people committing crimes in the County. I know that there was some confusion by other news sources concerning the effects of the Board’s action last evening, and I have been contacting those sources today asking them to correct their stories.
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