Legislation rushed to the finish line in an election year is notorious for being both badly crafted and motivated by less than pristine motives. And that certainly goes for HB 1885, the anti-sanctuary city bill passed by the House recently and currently under consideration in the Senate this week.
There is a lot wrong with the bill, starting with the intention of its sponsors to appeal to the anti-immigrant voters whose ire has been inflamed by Donald Trump and continuing on to its likely consequence of leading to racial profiling that undermines police-community relationships, and thus effective policing, in (documented and undocumented) immigrant communities.
But here I want to focus on the potential economic costs of the bill to the counties and cities of Pennsylvania—costs that have been barely considered in the fast-track legislative debate on it. The House Fiscal Note on the bill does not even try to identify, let alone estimate, these potential costs.
In doing this analysis, I will concentrate on one feature of this multi-faceted bill, its requirement that police officers in any jurisdiction comply with any request by the Immigration and Customs Enforcement (ICE) agents to detain people suspected by ICE of being undocumented for forty-eight hours beyond their release date so that ICE can decide whether to take the individual into federal custody. The bill would deny municipalities that do not comply with ICE requests all state support. A loss of state funding would be disastrous for the budgets of every municipality in the Commonwealth.
Forcing municipalities to comply with all ICE detainer requests will, however, place three serious economic burdens them: the costs of holding people in prison far longer than they might otherwise be held in response to ICE detainer requests; the costs of paying damages to United States citizens who are unconstitutionally held in response to such requests; and the costs to businesses; and the costs that fall on business whose employees cannot get to work and families who lose their source of support when people are imprisoned because of an ICE detainer request.
The Costs of Incarceration
The first costs likely to result from HB 1885 are those of incarcerating people in county and municipal jails who would be incarcerated or incarcerated for substantially longer periods of time than they otherwise would be due to the enactment of HB 1885.
In analyzing those costs, we can take advantage of Colorado’s experience with SB 90, a law with provisions similar to HB 1885. SB 90 was enacted in 2006 and repealed in 2013, in no small part because the unexpectedly high costs of implementing the legislation.
One might think that additional costs of imprisonment due to HB 1885 would be solely the result of obeying a detainer request from ICE to hold someone forty-eight hours beyond when they would have been released. The experience of Colorado shows us, however, that the true extent of additional incarceration resulting from HB 1885 is likely to be far greater.
To understand this, one must recognize that the majority of people arrested by the police officers are not held in prison at all or for very long. Many arrests for low-level crimes are non-custodial. In those cases, a police officer detains someone only long enough to issue a citation or summons to appear in court at a later date. Custodial arrests occur when the police arrest offenders and transport them to a detention center of some kind where they are booked and held until they are released (sometimes after posting bond) or their case is adjudicated.
SB 90 in Colorado had the unintended consequence of incarcerating many more people and for much longer in two different ways. On the one hand, police officers carrying out what would be an otherwise non-custodial arrest of someone suspected of being an undocumented immigrant, would, under SB 90, place such a person in custody and then report them to ICE. On the other hand, people suspected of being an undocumented immigrant who were booked and held after a custodial arrest were generally deemed to be ineligible for pre-trial release even if they were capable of and willing to post bond.
A study of the effect of SB 90 on incarceration practices in Denver, carried out by our sister organization, the Colorado Fiscal Institute (CFI), showed that these two consequences of SB 90 cost municipalities in the state an additional $13 million per year. Because Pennsylvania is likely to differ from Colorado in a number of ways, it is not easy to estimate the added cost of the additional incarceration that would result from HB 1885 in Pennsylvania.
But if we simply extrapolate from the best estimate of the proportion of population in Pennsylvania who were undocumented immigrants in 2010 (1.3%) as compared to Colorado at the same time (3.6%) and adjust for inflation, our estimate of the costs of HB 1885 to the county and municipality governments in the state is $5.2 million. If, on the other hand, costs in Pennsylvania were roughly proportional to the absolute number of undocumented immigrants—which is about the same in the two states—our estimate would rise to almost $13 million.
The Costs of Settling Lawsuits for Civil Rights Violations
A second potential cost of HB 1885 is that of settling lawsuits for the unjust detention of U.S. citizens. A statewide policy of responding affirmatively to every ICE detainer request runs the risk of detaining citizens of the United States who then are likely to successfully sue the municipality and / or county for violating their civil rights.
This is not an idle or fanciful threat. It has happened in Pennsylvania. In November 2008, Ernesto Galarza, a New Jersey-born U.S. citizen of Puerto Rican Descent was illegally held for three days in the Lehigh County Prison despite posting bond after ICE requested his detention on the suspicion that he was an undocumented immigrant. Galarza sued for damages on the grounds that his imprisonment violated his civil rights. He ultimately won, and United States and the City of Allentown together paid Galarza $50,000, and Lehigh County paid $95,000 in damages and attorney’s fees.
The determination on the part of county and municipal governments to avoid similar lawsuits, is one reason that many Pennsylvania jurisdictions have written or unwritten policies to not honor detainer requests from ICE.
The Costs to the Community
In addition to the costs of incarceration and the threat of lawsuits for the violation of the civil rights of citizens, there are broader costs that would result from instituting a state wide policy to comply with every ICE detainer. There are the costs businesses must bear when immigrants are detained and cannot show up for work. And there are both private and public costs associated with the hardships imposed on the families of people who are incarcerated—many of which include U.S.-born children—including loss of income and a strain on social services and local schools. These broader burdens are difficult to quantify, but are undoubtedly real.
I have not attempted to give firm estimates of all the costs of HB 1885. My goal has been to come up with the best estimate we could within current time constraints. This analysis shows that those costs are possibly quite large and that they have not yet been considered in the General Assembly’s evaluation of this bill. Regardless of whether one supports the general approach of HB 1885, it is impossible to deny that the General Assembly should seek more information and carefully think through the potential cost of HB 1885 before rushing to enact it. We should not follow Colorado down the path of responding to anti-immigrant fervor by putting a new law in place without understanding its consequences and costs.
For more details on the legislation see our policy brief