photo by: Mike Yoder

Douglas County Jail

While advocates have been working with Lawrence City Hall on policies to make it less likely that immigrants will be detained solely for immigration violations, there are signs their sights soon may shift to the Douglas County Jail.

A review by the Journal-World found the jail follows a system — which uses fingerprint files that are sent to federal immigration officials — that can result in immigrants being held in the jail for up to two days, even after their local cases have been resolved.

For example, a person taken to jail on a DUI or similar level misdemeanor, ordinarily could bond out of the jail fairly quickly. However, if their fingerprints draw a red flag with the federal Immigration and Customs Enforcement agency, the jail’s current practice is to hold the person for up to 48 hours to give the federal officials time to take the person into custody.

Advocates at City Hall have been arguing for practices that reduce the chance a misdemeanor violation — in some cases it could be an offense like driving without insurance — may lead to someone being detained and deported. The county officials who run the jail, though, are quick to point out that they aren’t making discretionary decisions when they keep a person in jail. They haven’t begun crafting immigration-related policies like those being considered at City Hall because they already have something stronger than a policy in place.

“We do not have a specific governing policy that relates to the way we handle detainer requests and probable cause warrants with ICE because we are following the law,” Douglas County Sheriff’s Office spokeswoman Jenn Hethcoat said via email.

It isn’t yet clear how often a misdemeanor offense leads to someone being held in the Douglas County Jail while ICE agents arrive to detain them. The Douglas County Sheriff’s Office, which operates the jail, doesn’t keep those specific statistics. But the county did report that since 2017, the office has held 17 people beyond their local charges based on probable cause warrants issued by ICE. ICE officials confirmed such warrants can be issued solely for immigration violations, which include entering the country undocumented, overstaying a visa or remaining in the country once an asylum claim fails, among other violations. The Journal-World recently filed open records requests with the sheriff’s office and ICE to attempt to determine how often that situation has occurred.

Hethcoat said that ICE warrants are the same as probable cause warrants issued by any other agency and the sheriff’s office is legally bound to enforce them.

“When presented with a probable cause warrant for any individual in our custody we will hold the individual until custody can be transferred,” Hethcoat said. “This applies to any agency, not just ICE.”

The Lawrence City Commission recently drafted a policy regarding police cooperation with ICE following a proposal last year from a local group, the Sanctuary Alliance, which would like Lawrence to become a sanctuary community. Sanctuary Alliance organizer Mariel Ferreiro said the push to create local cooperation policies was sparked in part by local law enforcement assisting with ICE warrants. Ferreiro said the group decided to start at the city level, but plans to start the conversation at the county level once the city policies are adopted.

“I think what we’re really looking for is to start opening up that conversation, meeting with the sheriff, meeting with our county commissioners,” Ferreiro said. “And asking what are your procedures, what is it you’re seeing and what is your communication with ICE?”

At this point, though, Ferreiro said the group still has questions, including what information the jail shares with ICE and under what circumstances ICE asks the jail to detain people beyond their local charges so ICE can take custody of them.

ICE warrants

When asked about the nature of the 17 ICE warrants, Hethcoat said the sheriff’s office cannot speak to the details of warrants not based on charges from its own investigations. She said the ICE warrants issued to the sheriff’s office do not differentiate between noncriminal immigration matters, felony charges and misdemeanor charges and that questions about the different charges that might cause ICE to issue a warrant would need to be answered by ICE.

Speaking in general, ICE spokesman Shawn Neudauer said ICE warrants based on probable cause could be issued for either criminal reasons or administrative or civil immigration reasons. That means such a warrant could potentially be issued when a person’s only offense was being in the country illegally. However, Neudauer said most people in law enforcement custody have committed other crimes.

“You have to think about what brought them to the jail in the first place,” Neudauer said. “Most of the cases that we deal with are people who are already arrested by a local police department or a sheriff’s office for state crimes. You don’t just get arrested and booked into a jail for jaywalking; there is usually a crime attached to it.”

Though he could not speak specifically to the ICE warrants issued to the Douglas County Jail, Neudauer pointed to national statistics gathered by ICE that indicate the majority of those arrested by ICE have committed crimes. He said the issue gets complicated because the physical act of crossing the border illegally can be considered a federal offense criminally, even though most are not prosecuted that way.

ICE data indicates that about 92,000 of the 143,000 people arrested by ICE in fiscal year 2019, or about 64%, had criminal convictions, which included immigration-related convictions. About 31,000, or about 22%, had pending charges. The most common conviction or charge was driving under the influence, followed by traffic offenses, drug offenses and immigration offenses. The full list of offenses is available in the ICE report. Immigration offenses include illegal entry, illegal reentry, false claim to U.S. citizenship and alien smuggling, according to the report. The remaining 20,000, or 14%, of those ICE arrested in 2019 were arrested based solely on unlawful status in the U.S. and had no known criminal convictions or pending charges.

Neudauer told the Journal-World that he could not provide the nature of the 17 warrants issued to the Douglas County Sheriff’s Office without having names of the individuals. The Journal-World has requested and received the individuals’ names from the sheriff’s office for the purpose of determining why the warrants were issued, and has submitted those names to ICE. The records request with ICE is pending.

What triggers ICE review

Without information sharing between local law enforcement and federal agencies, ICE would not be aware that someone the agency is seeking or someone who ICE suspects is in the country illegally is in custody in a local jail. Therefore, another key concern of the Sanctuary Alliance is establishing policies for when local law enforcement agencies notify ICE regarding bookings into the jail.

The local event that triggers ICE notification is fingerprinting, though it is not precisely known how often the sheriff’s office fingerprints inmates.

Notification to ICE automatically occurs whenever the sheriff’s office fingerprints someone as part of the booking process and enters that information into the applicable database. Hethcoat said the sheriff’s office does not track the percentage of inmates who are fingerprinted, but said the jail fingerprints people when it is required by law, which is the “majority of the time,” and that by law that information is disseminated to ICE.

For reference, recent bookings into the Douglas County Jail include people arrested on suspicion of misdemeanors and traffic offenses such as driving without a valid license or insurance, failure to appear on municipal charges, disorderly conduct, shoplifting, property damage and driving under the influence of alcohol or drugs. A review of several weeks of bookings found only a few people who were arrested on suspicion of more serious charges, such as felony burglary, rape and sex crimes.

Hethcoat said that there are several statutes that govern fingerprinting procedures, including statute 21-2501. The law requires law enforcement agencies to fingerprint suspects under various circumstances, such as when the person is wanted for the commission of a felony, sex crime, or a class A or B misdemeanor or assault or a county violation that would be the equivalent of such crimes. Class B misdemeanors can include traffic violations such as driving with an invalid license or without insurance.

Of the 17 people held by the jail on ICE warrants over the past few years, 16 were turned over to ICE. The ICE warrants specify the individual may only be held for a maximum of 48 hours, and Hethcoat said there was one person who was let go before ICE arrived because the 48 hours had elapsed.

Confusing the issue is that ICE previously issued standalone detainer requests, which received attention a few years ago when some cities and counties stopped honoring them. ICE policy states that since April 2017, detainer requests asking local law enforcement for voluntary custody transfer will no longer be issued and all requests for additional detention will be accompanied by a warrant or deportation order.

Hethcoat noted that ICE detainer requests are voluntary requests, not legally binding documents. She said the sheriff’s office does not honor detainer requests because case law has dictated that immigration detainer requests are a violation of an individual’s Fourth Amendment rights against unreasonable searches and seizures.

Part of what the Sanctuary Alliance seeks to do is determine why a warrant is issued. At the city level, the Sanctuary Alliance has proposed, in part, that police not enforce requests from federal immigration agents unless they are related to criminal matters. When it comes to the county’s operation of the jail, Ferreiro said she wants to know the nature of the warrants that ICE submitted to ensure that people are not being detained for civil immigration violations that do not require jail time.

“We are really trying to make that definitive statement between civil and criminal law and what is being broken and what are the procedures that happen when either of those are broken,” Ferreiro said. “Because if it is just immigration, then we need to look at whether these warrants are valid and should these people be held in the jail?”