Milwaukee County Sheriff's Office will no longer honor detainer requests from ICE after ACLU request

"In response to an ACLU request earlier this month, the Milwaukee County Sheriff’s Office today will no longer honor detainer requests from ICE to hold immigrants who would otherwise be released.  A copy of the new policy is available below.

The ACLU urged Milwaukee County and other local sheriffs to stop honoring detainers because they violate the constitutional rights of persons detained.  The ACLU of Wisconsin recently released a report describing the policies of Sheriff's Departments across Wisconsin concerning ICE detainers and other cooperation with federal immigration authorities.  We are happy to see the Milwaukee County Sheriff make changes respecting the rights of immigrants in the Milwaukee community."

In response to a fulsome review of the relevant Fourth Amendment jurisprudence shared with the Milwaukee County Sheriff’s Office by the ACLU of Wisconsin this past Friday related to civil ICE detainer requests, Sheriff Richard Schmidt conferred with the Office of Corporation Counsel and a mere two business days after receiving the communication from the ACLU, changed Jail policy to both fulfill the mandates of the voluminous case law cited by the ACLU and comply with 8 U.S.C. § 1373.  This new policy thereby preserves Milwaukee County’s continued eligibility for federal grant moneys essential to key County public safety and law enforcement operations, while protecting the Fourth Amendment rights of all inmates.

The new policy states, in full:  “Effective immediately, the Milwaukee County Jail shall not hold any inmate in custody solely based upon an ICE detainer.  Once an inmate is scheduled for release, and there is no legal basis to hold the inmate in custody, but the Jail has received a detainer request from ICE, ICE officials will be contacted immediately and the inmate will be processed for release.  ICE officials may have an opportunity to pick up that inmate because on average, it takes approximately 2-3 hours to process an inmate for release, depending upon intake and release volumes on a given day.  To be clear: no inmate shall be held for any time beyond the time that is required to process that inmate for release under the usual and customary practice of the Jail.  If ICE officials do not appear to pick up the inmate after being contacted, the inmate will be released from our facility in the usual course of business.

The new policy stops the prior practice of holding inmates for up to 48-hours on ICE civil detainers after an inmate’s state-law based custody had ended.  To be clear:  Milwaukee County Jail will no longer hold any inmate at the request of ICE after their state-law custody has ended.  In communications following the issuance of this policy, the ACLU has expressed approval of this change.

More importantly, contrary to recent claims, this policy means that all inmates subject to release are treated exactly equally under the Fourth Amendment by the Jail regardless of their immigration status, and inmates about whom the County has received a civil ICE detainer request are processed no faster or slower than all other inmates.  The processing time depends solely upon intake and release volumes on a particular day.  ICE’s civil detainer requests will have no impact.  Also contrary to recent claims, regardless of any action or inaction by the Milwaukee County Jail, ICE is aware of any particular Jail inmate’s immigration status.  Moreover, 8 U.S.C. § 1373 prohibits any local government from adopting any policy that prohibits the sharing of immigration status information of inmates with ICE – a fact conveniently omitted from recent public statements.

Sheriff Schmidt Stated: "I am sworn to uphold the constitution and the laws of the land, and this revised policy meets those standards. People will continue to criticize and protest on both sides of this issue. The rule of law is my guide and to that I remain true."  He stated further:  "I continue to support all communities with people who have immigrated to the United States. This policy forces responsibility solely upon ICE, the Federal agency, for seizing individuals based on civil detainers, absent a criminal warrant based on probable cause or other valid state-law reason to retain custody of the individual, and to bear the risks associated with such seizures.  The County Jail can no longer be an instrumentality of federal immigration policy.  But the Jail also understands that it cannot illegally withhold information from ICE."

Since September 2017, Sheriff Schmidt has also publicly made it clear that Sheriff's Office deputies and correctional officers would not become certified ICE agents under the so-called 287(g) program.   He stated in closing, “I welcome a sit down with any interest group or the ACLU of Wisconsin to better understand their concerns and how any complaint might be addressed – within the confines of the law.”

On Tuesday, the Milwaukee County Sheriff's Office announced in a letter that they will no longer be honoring Immigration and Customs Enforcmeent (ICE) detainer requests, which the Trump Administration has used to separate hundreds of Milwaukee immigrant families. Instead, Acting Sheriff Richard Schmidt announced that his deputies will now notify ICE even in absence of a judge's warrant when they are about to release someone ICE has targeted for deportation, giving ICE hours to come and arrest the person for deportation and separation from their family.

In the words of Acting Sheriff Schmidt's new policy directive announced Tuesday:

Once an inmate has been scheduled for release, and there is no legal basis to hold the person in custody, but the Jail has received a detainer rquest from ICE, ICE officials will be contactd immediately and the inmate will be processed for release. ICE officials may have an opportunity to pick up that inmate because on average, it takes approximately 2-3 hours to process an inmate for release, depending upon intake and release volumes on a given day.

"This new policy games the system by continuing collaboration with ICE in the separation of families," said Christine Neumann-Ortiz, Executive Director of Voces de la Frontera. "This is a concession to our movement's pressure, but notifying ICE about a person's release so ICE can arrest them in the lobby or outside will still aid Trump's campaign of terror against immigrant families. Tens of thousands of Latinx and immigrant families and supporters did not organize two general strikes against 287g, organize against Sheriff Clarke's use of detainer requests, and work hard for the election of a pro-immigrant Sheriff just for the Sheriff's Office to create a sham policy. We call on Acting Sheriff Schmidt to amend this policy to not share information with ICE in absence of a judge's warrant. This is precisely why so many progressives supported Earnell Lucas for Milwaukee County Sheriff, because he has committed to not comply with warrantless ICE detainer requests or notification requests."