Impossible to check: John Fetterman’s claim that sanctuary cities are safer

Are sanctuary cities safe places? Democratic U.S. Senate Candidate John Fetterman’s statement speaks to a host of issues of the day: Immigration reform and enforcement, public safety and policing practices. But it’s hard to check this "fact" -- because different municipalities define their safety using varying practices. There is no legal definition for "sanctuary city," and folks from various angles of the debate have used it to their fancy.

Local vs. federal responsibility

There is a common perception that sanctuary cities do not use their resources to track down undocumented residents, arrest them and turn them over to ICE. Further, in these cities, some arguments go, local law enforcement agencies do not arrest undocumented residents upon discovering their immigration status. But here’s the thing: Local law enforcement agencies typically do not follow immigrants for deportation, and the notion that they might bear responsibility to do so is new to the 2000s.

"Although federal authority over immigration has always involved a degree of cooperation and occasional conflict between local and federal officials, the federal government has historically been recognized to have plenary power in this area," wrote four researchers in "Immigration and Local Policing: Results from a National Survey of Law Enforcement Executives."

"Being present in the U.S. without authorization is a civil violation under federal law, not a prosecutable crime under the jurisdiction of localities. In the past, state and local police forces played only a supportive role, sometimes sharing information about those they had detained as criminal suspects or assisting in enforcement actions."

But late ’90s counterterrorism legislation "created an opening," the researchers wrote. Now, local police were encouraged to request and engage in local immigration enforcement. From 2002 on, the growth of interagency counterterrorism efforts cultivated civil immigration enforcement and planted a point of controversy: Local police making immigration status checks routine could do serious damage to their community relations and diminish trust within neighborhoods.

Police officers, in studies and in the press, have repeatedly expressed concerns over what this hurt relationship could mean: atrophied community policing, fewer witnesses coming forward, heightened hostility towards police, etc. The "Immigration and Local Policing…" survey was conducted in 2007 and had 237 respondents. "The great majority of chiefs (72 percent) regard immigration enforcement as the responsibility of federal government," the researchers wrote. "In general, the more serious the violation, the more likely they believe that their officers are to check immigration status." Only 15 percent of police executives in sizable cities said their departments check witnesses’ immigration statuses or notify ICE of them. This finding was speaking to police encounters. Local police that patrols for people with an unlawful immigration status remains exceedingly unusual. In this sense, most municipalities could be labeled "sanctuary."

The trouble with ICE holds

A lot of folks obviously narrow it down further. The Department of Homeland Security regulates that once it has issued a detainer request, the respective local law enforcement agency is to keep that immigrant in custody for a brief period. This is often called an ICE hold. In 2014, the U.S. Third Court of Appeals ruled that cities aren’t required to conduct them. In the opinion for Galarza v. Szalczyk, Circuit Judge Julio M. Fuentes wrote "immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal."

There are multiple reasons why a local law enforcement agency would opt to ignore such an order. To start, many advocates argue that arresting anyone in this manner, regardless of their immigration status, is unconstitutional. The fourth amendment creates the right against unreasonable search and seizure, the fifth amendment establishes right to due process, and both amendments use to the terms "person" and "persons," rather than "citizens," "permanent residents" and "visa-carrying immigrants." Therefore, if the sole offense is the person’s presence, then not fulfilling ICE detainer requests can reflect a preference to avoid lawsuits, not to mention court costs.

So, we have another group of commentators, who, when discussing sanctuary cities, are not referring to whether a city arrests people for being undocumented, which is against the norm, or whether they arrest undocumented criminals, or even whether or not the police department is cooperating with DHS and sharing biometric data from bookings, which happens through the national Priority Enforcement Program and transfers fingerprints to ICE simultaneously with the FBI. Rather, this faction is referring to whether or not the city complies with ICE detainer requests.

While experts mentioned that ICE keeps a list, DHS Deputy Press Secretary Jennifer Elzea said she wasn’t aware of one.  "DHS officials have mentioned a few jurisdictions (e.g. Cook County, IL) as anecdotes during testimony before Congress, but that has been the extent of it," Elzea wrote in an email.

The Center for Immigration Studies, a think tank that supports limiting the number of immigrants in the U.S., reports that there are more than 300 noncompliant jurisdictions and lists 146 on their site, four of them states. The Immigrant Legal Resource Center, a pro-immigrant rights research group, have found 407 jurisdictions with written policies not to honor all detainer requests.

What does ‘sanctuary’ mean?

Within these ice-detainer-noncompliant cities, there is no uniform approach to creating "sanctuary." Past PolitiFact coverage has found it useful to hone in on cities with actual sanctuary policies. Naturally, there is little agreement on what qualifies as a sanctuary policy city too.  So, if we focus on cities with explicitly written measures, there’s still the question of which policies are we talking about? A bill? An ordinance? A memo circulated to staff? A code in the police’s headquarters? What if the public figure ups the ante and uses "sanctuary" to refer to cities that don’t only ignore certain detainer requests, but whose lawmakers passed measures to make their cities more welcoming to immigrants, like municipal IDs that undocumented residents can apply for?

Fetterman claimed that sanctuary cities are statistically safer. Even if a widely agreed upon definition and corresponding figure existed, there appears to be no research that definitively measures this. There are papers on policing that assess the blight that public safety would suffer if police officers couldn’t serve communities that trust them. There is research that shows that immigrants commit fewer crimes and that there is a chance that immigrant enclaves might lower a city’s crime rate. (Fetterman also noted this in his remarks at West Chester University, and it has significantly more academic backing.) But numbers that reflect heightened safety in sanctuary cities? Rob Davis, chief social scientist at the Police Foundation, called this "a tough question, but not impossible." Davis recommends taking crime data on sanctuary cities and comparing them against against non-sanctuary cities. Mother Jones produced a graphic that shared this logic last year, comparing sanctuary policy city San Francisco’s murder rate to those cities without such policies of comparable size. But we were not able to find any such analysis that looked at sanctuary cities nationwide.

Still, characteristic of this debate, the simplicity of a graphic of this nature might strike some as too easy. Yes, it would answer whether sanctuary cities of a particular definition saw more or fewer reported crimes over a selected time period. However, these statistics might also reflect the positive or negative impacts of other police anti-crime practices, not to mention factors can influence crime, like the weather.

"I'd certainly be interest[ed] in seeing what [such a] graphic yields, and it could prove suggestive to some readers," Jonathan Blazer, advocacy and policy counsel for the ACLU, said in an email, "but unless it controls for the myriad of different factors that influence policing decisions and that shape crime statistics, the graphic would still leave open questions of causality and the independent salience of the sanctuary policy versus other factors." 

The statistics that Fetterman references appear not to exist in a precise form. This speaks to difficulty to measure the impact of crime-fighting tactics, but moreover speaks to lack of agreement over what sanctuary city actually is. The malleability of the term is confusing, and some of its common interpretations are genuinely misleading. What is clear is that local police opting not to arrest undocumented residents solely because their immigration status is widespread. It is often viewed as a matter of good police practice, regardless of the city’s "sanctuary" definition.