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Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245 (2016), available at SSRN.

Local governments are increasingly taking the role of protectors in these fear-filled times for federal immigration policy. A popularly used term for this protective role of cities is sanctuaries. But what does giving sanctuary mean in the immigration and local law and policy context? What protections are arising?

One of my favorite empirical scholars working at the intersection of immigration and criminal justice, Professor Ingrid Eagly, set out to gather data on the policies of local police and prosecutors that protect immigrants. Professor Eagly’s empirical work is always illuminating because through her clinical work with clients, she has her fingers on the pulse of what matters right now for people in the trenches.  For example, she conducted the first national study documenting the dearth of representation by counsel among immigrants facing removal. She also conducted the first study of the impact of televideo proceedings to adjudicate the cases of people in immigration detention.

For her latest project, Professor Eagly used public records requests to obtain policies pertaining to immigrants from police, sheriff’s and prosecutors’ offices in four of the most populous counties of the most populous state in the nation: Alameda, Los Angeles, Santa Clara, and Ventura counties in California. These four counties offer a particularly powerful vantage point into immigrant-protective policies pioneered among local law enforcement because they are among the most immigrant-protective jurisdictions in the nation. Studying the approaches taken by the vanguard can help inform future developments as other jurisdictions try to forge their own policies.

It is also an important and illuminating research approach to examine departmental policies to shed light on law enforcement governance and internal practices. Police and prosecutor office policies play a critical and under-appreciated role in shaping institutional norms and filling in gaps and blind spots in the laws on the books. The policies also fill in the substance behind catchphrases such as “sanctuary city.”

Eagly’s textual analyses of the collected policies reveal variation across approaches but also three central types of immigrant-protective police and prosecutorial policies. The first cluster involves local police refraining from inquiring about immigration-related violations. The second involves prosecutors weighing the risk of deportation in their pleas and structuring charges to avoid triggering deportation. The third involves refusals to cooperate with federal requests that immigrants in jails be detained for immigration-related processing and deportation. Within each category, she classifies the different ways and contexts in which the local agency restricts collaboration with federal immigration authorities.

Judging by the volume of press calls on the issue, there is great public interest and confusion over how local governments are resisting federal immigration enforcement crackdowns. Professor Eagly’s taxonomy offers a valuable guide for the press and public as well as the academy. Her appendices are also an excellent aid, offering charts that compare key similarities and differences in the protections defined in the policies she gathered.

Finally, the article also offers important insights for policy-makers and activists charting the future of the state and local-government role in protecting immigrants. She notes that the three main rationales for immigrant-protective criminal justice policies to date tend to revolve around (1) community trust, (2) immigrant integration, and (3) reserving scarce resources for state and local priorities rather than working for the feds. She argues that while these are important justifications, they only capture part of the problem in need of redress. To these three rationales, she traces and develops a fourth norm in need of vindication, what she terms “immigrant equality.” By this she means addressing how immigrants are punished more harshly than citizens for the same crime. Two people commit the same crime.  One person gets prison and then probation.  Another person gets prison and then banned from the country he calls home. Is this just? If a community does not think so, what can it do about it? The article is thus both an excellent guide to our present and a guide to forging the future.

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Cite as: Mary Fan, How Local Police and Prosecutors Protect Immigrants, JOTWELL (May 23, 2017) (reviewing Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245 (2016), available at SSRN),