ACLU-NJ Offers Analysis of AG's Flawed Directive

The following op-ed, "AG Directive Lacks" appeared in the Trenton Times on September 8, 2007. It was written by ACLU-NJ Executive Director Deborah Jacobs. Background at: AG's Guidance Needed On Cops and Immigrants.

After months of review, outreach and internal debate, New Jersey's Attorney General Anne Milgram finally issued a directive on the issue of what role local police should play in federal immigration enforcement.

In taking this step, Milgram asserted herself as New Jersey's chief law-enforcement officer, attempting to give local law enforcement the long-awaited guidance needed to resolve this "issue on the ground" in places as disparate as Trenton, Princeton, Morristown and Newark.

The directive says that local police must inquire about immigration status upon arrest of a suspect for an indictable offense, and report individuals suspected of being undocumented to U.S. Immigration and Customs Enforcement (ICE). It also says that police may not ask witnesses, victims or people seeking assistance about their status.

The spirit of the directive seems right. It includes strong statements that the primary responsibility for enforcing the nation's immigration laws rests with the federal government rather than state or local governments. It also warns of the consequences of entangling local police in immigration enforcement, and reiterates the state's commitment to combating racial profiling.

Unfortunately for police officers, local officials, community advocates and the public alike, the di-rective raises more questions than it answers. Most of these questions stem not from what the directive says, but from what it doesn't say.

For example, although the in tent seems clear, it doesn't explicitly bar local police officers from inquiring about immigration status prior to making an arrest.

This omission gets to the heart of the concerns law-enforcement professionals have about being called on to enforce federal immigration laws: that it would undermine the trust between local police and the community; interfere with police officers' ability to serve and protect their communities, and ultimately threaten public safety.

The Major Cities Chiefs Association expressed these very concerns in a 2006 report, stating, "Such a divide between the local police and immigrant groups would result in increased crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes or preventing future terroristic acts."

The attorney general's directive leaves other important questions unanswered. It's oddly specific on such issues as how local reports are to be conveyed to ICE -- telephone or fax, for example. But it's mute on such critical matters as how police are to determine a suspect's immigration status to begin with.

Should they ask and rely on what a suspect tells them? Should they demand documentation from the suspect? If so, which documents? Should they search computer databases with immigration status information?

Who knows? The directive is silent.

The directive requires that police notify ICE when they have "reason to believe" that an ar rested individual may be undocumented. But it doesn't indicate what information should be used or what standards applied in forming that belief. Absent such guidance on what constitutes a "reason to believe," the entire process becomes ambiguous and open to abuse.

In fact, as written, the directive increases the potential for racial profiling and discrimination. While it repeatedly cautions against racially motivated enforcement, by failing to define specific tools or guidelines for inquiry, the directive leaves the door wide open for discriminatory assumptions based on race or ethnicity.

Racism is something that each of us must fight to reject, as we breathe it in the air. It functions at both the conscious and subconscious levels, and to protect against it we must have strong policies and procedures in place that will help ensure that it doesn't have a role in policing (or any other realm of government, business or public life).

Finally, even the section of the directive that seeks to protect witnesses and victims raises intractable questions. In a domestic violence situation, for example, where it's not always clear who is the victim and who is the perpetrator, how can an officer comply with the directive?

Law enforcement and local officials need clear procedures that will help them do their jobs and guard against both unintentional rights deprivations and racial profiling lawsuits. The directive falls short in these and other respects.

We urge the attorney general to revise or supplement the directive so that it provides the sound, thoughtful guidance needed by all parties, and to make it consistent with its laudable spirit of fairness.

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