Former head of Department of Homeland Security Janet Napolitano delivering remarks at the Center for American Progress in 2009. (AP Photo/Manuel Balce Ceneta)

For the second time now, there’s a crucial bill called the Trust Act sitting before California Governor Jerry Brown for approval. The bill would essentially put a halt to the way that immigrants are targeted and criminalized for deportation under a program called Secure Communities. That program grew into a major cog of the federal government’s deportation machine—largely under the leadership of Janet Napolitano, who headed the Department of Homeland Security (DHS). But Napolitano has left Washington and is currently enjoying an appointment as the head of the University of California. And now, she’s told a group of students that she supports the Trust Act.

Secure Communities requires that local officials turn over the fingerprints of everyone who is arrested or processed through a jail or prison to Immigration and Customs Enforcement, or ICE. If that person is deemed a threat to national security or the public, the agency issues what’s called a detainer, which instructs local jails and prisons to hold the immigrant in question for up to forty-eight weekday hours, until that person can placed into ICE custody. Secure Communities was stared by the Bush administration in late 2008—but it didn’t really take off until President Obama came into office. As DHS Secretary, Napolitano made sure the program was made mandatory for all jurisdictions. Today, more than 3,000 counties have no choice but to participate. But the program is fraught with problems.

Although detainers are set to expire after two working days, that doesn’t always happen. These forty-eight-hour detainers last much longer—and can even take months. The cost to feed and house the immigrant that ICE has requested a detainer for is placed on the local jurisdiction, leaving cash-strapped counties alone to carry the financial burden of a federal request. And the nature of the crimes that the person for whom a detainer is issued for is nearly always negligible. According to the latest preliminary data revealed by TRAC, less than 11 percent of the people for whom ICE detainers are issued for present a threat to national security or to public safety. In fact, the overwhelming majority of ICE detainers have been issued for people who haven’t been convicted of any wrongdoing whatsoever.

The result on immigrant communities is devastating enough—but it’s not just non-citizens who are being directly affected. Although detainers are meant issued exclusively for immigrants, the practice has also been extended to hold citizens. Just this year Gerardo Gonzales, a US-born citizen, was held on an ICE detainer hold for six months. He was released only after he filed a lawsuit.

Although the name suggests that Secure Communities is about keep people safe, it’s had the opposite effect. At best, the program overwhelmingly targets immigrants who haven’t been convicted of any crime for detention and deportation, and it’s costly to counties that are still recovering from the recession. At worst, it’s a program that has violated the constitution by holding citizens without grounds—not for a day or two, but for months.

California’s Trust Act seeks to change the course of Secure Communities. Currently, ICE detainers are not warrants issued by judges, but requests issued by arbitrary standards. Under the Trust Act, counties will decline to hold people for whom ICE detainers have been issued for, unless that individual has been convicted of a serious or violent crime, such as child abuse or murder. When the Trust Act was passed by California lawmakers and placed before him a year ago, Governor Brown declined to sign it. His office apparently worked with lawmakers to craft a new version that would suit Brown’s criteria, and a new bill was passed. Brown, however, has so far failed to sign the bill into law. There is no solid indication whether he will or he won’t. In the meantime, California continues to needlessly cooperate with Secure Communities.  

As DHS head, Napolitano gave Secure Communities teeth with which to tear families apart. But now, Napolitano says she’s supporting the Trust Act, and has even told Brown to sign the bill. But she has yet to make her statement public. Even if she does, it will only halt Secure Community’s disastrous effects in one state. If Napolitano truly wants to begin to repair her legacy on immigration and deportation, she can begin by publicly supporting the Trust Act—and publically condemning the program she worked so hard to create.

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