When Illinois Governor JB Pritzker signed the Way Forward Act in late August, he sided with his state in a growing movement against the federal government’s vast immigration detention system. The law prohibited cities and counties across the state from renting beds in their prisons to Immigration and Customs Enforcement, while requiring counties that already had contracts with ICE (immigration) to terminate them by January 1.
Immigrant rights advocates and activists promoting the Illinois Way Forward Act thought they had achieved a major victory in their long-term strategy to dismantle the ICE detention system. As of last week, ICE had nearly 22,000 immigrants and asylum seekers in more than 130 public and private jails across the country.
“We consider it something similar to the movement for marriage equality, whereby the states began to pass laws until reaching a point where the current administration could no longer ignore the issue and the needs of the community,” said Luis Suárez, of the Detention Watch Network, a national organization that promotes the closure of ICE detention centers.
But shortly after Pritzker enacted the Illinois Way Forward Act, two counties filed a lawsuit in federal court challenging the constitutionality of the law. Kankakee County, an hour’s drive south of Chicago, and McHenry County, an hour to the northwest, have made millions of dollars in recent years through contracts to house ICE detainees in their prisons.
The state asked that the accusation be ignored. But the counties asked District Judge Philip G. Reinhard of the Northern District of Illinois to issue an order authorizing them to maintain their contracts with ICE while the case is resolved. The judge has not yet set a date for a preliminary hearing or indicated when he could make a decision.
If the counties succeed, they would not only sour the activists’ celebration, but would also cast doubt on the viability of their strategy, designed to crack down on immigration detention centers state by state, jail by jail. Even if the law remains in effect, the counties’ legal recourse raises questions about what will happen to the dozens of people detained by ICE currently housed in county jails.
In interviews and legal presentations, McHenry County Attorney Patrick Kenneally, who represents the two counties, said ICE would end up moving most of the people in its jails to other parts of the country, further away from their families and from their teams of lawyers. “The idea that this is going to benefit someone staying at McHenry County is dubious, not to say totally wrong,” Kenneally said in an interview.
Activists who promoted the law, however, say the lawsuit highlights the perverse financial incentives of mostly rural, conservative countes, gained by detaining immigrants in federal custody, separating families and causing lasting harm to those in the federal government. immigrants and their communities.
Activists also accuse Kankakee and McHenry prisons of providing poor services, according to reports in recent years that detainees spent three months without water in their laundries, endured an outbreak of mumps and did not receive adequate medical care.
They also highlight that statistics indicate that 75% of immigrants detained by ICE have not been convicted of any crime and that the vast majority of immigrants who are not detained show up for court appointments, which would suggest that their arrests they are abusive, expensive and unnecessary.
State Sen. Celina Villanueva, a Chicago Democrat and co-sponsor of the Illinois Way Forward Act, said McHenry and Kankakee counties are basically trying to collect dirty money from an immigration system that no longer works.
“They try to make people believe that they care about our communities, but all they care about is the money associated with the criminalization of immigrants from this country,” he said.
McHenry and Kankakee Counties admit in their legal filings that money is the lynchpin of their claims.
McHenry County collected more than $ 8 million a year for its ICE contracts from 2016 to 2020, according to the lawsuit. That’s more than you earned in income taxes in that period. Kankakee County collected nearly $ 4 million a year from ICE between 2017 and 2020, about the same as sales taxes generated in the same period.
The two counties saw a significant drop in the number of immigrants detained in their jails this year, following a national trend as ICE arrests declined under the Joe Biden administration.
Forcing counties to terminate their contracts “will have a detrimental impact on the revenues of these counties,” Kenneally said in the lawsuit.
The main legal argument of the counties is that the Illinois Way Forward Act interferes with federal laws, which allow ICE to sign contracts with counties and municipalities to house immigrant prisoners in their jails.
“The Illinois Way Forward Act seeks to evade the constitutional power of the federal government in relation to immigration detention,” Kenneally said in his presentation.
A recent decision by the California 9th Circuit Court of Appeals could bolster the counties’ position. Last month, the court blocked a California law that would have forced the closure of private immigration detention centers in the state. In a 2-1 ruling, the court found that California law inhibits the state from preventing ICE from enforcing “what federal immigration laws explicitly allow.”
The Illinois Attorney General’s office, for its part, argues that the 9th Circuit’s decision only applies to the private sector and that the national Supreme Court said the Tenth Amendment gives the state the option to refuse to participate in federal programs, such as the of immigration detention. Through the Illinois Way Forward Act, the state decided to prohibit government “subunits” from detaining immigrants in ICE custody in their jails. And counties have no legal basis for ignoring the state, according to attorneys for the state government.
“What matters in this case is the sovereignty of the state, not the preference of the counties,” argued an attorney for the attorney general’s office in his most recent filing.
A spokeswoman for the Illinois Attorney General, Kwame Raoul, said that neither Raoul nor any other attorney were available for interviews, but said in a statement that the agency is determined to uphold the Illinois Way Forward Act, which she says “seeks to promote and preserve trust between immigrant communities and the police, which is vital to reinforce public safety ”.
An ICE spokesperson did not respond to email questions for this article.
When the Illinois Way Forward Act went into effect, there was a third county that had a contract to detain people from ICE: Pulaski County, in the extreme south of the state.
Unlike McHenry and Kankakee, Pulaski decided to terminate his contract with ICE. The federal government released 15 of the roughly 50 immigrants held at the Pulaski County Jail, and the rest were transferred to other ICE detention facilities, mostly in Kankakee and McHenry counties, according to director Mark Fleming. Federal Litigation Associate with the National Immigrant Justice Center, a Chicago nonprofit that helped many of those immigrants file for release requests.
Immigrant rights advocates see the closure of the Pulaski County Detention Center as proof that their strategy works, while critics of the Illinois Way Forward Act say the only thing closing detention centers will do is that ICE transfer inmates to other prisons.
Fleming said activists were able to use the termination of Pulaski County’s contract with ICE to convince that agency to release some detainees. If the judge rules against the other two counties, activists will have more arguments to ask ICE to release more currently detained immigrants, according to Fleming.
“I don’t think anyone on our side is unaware of the real possibility that some individuals will be transferred,” he said. “I think we are resisting the notion that everyone is going to be transferred automatically.”
Instead, Kenneally says the law will simply cause ICE to transfer the majority of immigrants currently in McHenry and Kankakee county jails to detention centers in other states. That’s what happened in New Jersey, which passed a similar law banning immigration detention during the summer. ICE transferred dozens of people to prisons in other states in recent weeks, after the American Civil Liberties Union tried unsuccessfully to prevent such transfers in court.
Activists like Suárez admit that they are concerned that people will be transferred to detention centers further away from their families.
But they believe that in the long term, by reducing the number of available detention facilities, ICE will be forced to limit the number of people it detains. And in every state and county where they score a victory, they boost their campaign to eliminate all ICE detention centers.
“At the end of the day, we are going to continue to push for the closure of the (detention) facilities because the possibility that (immigrant prisoners) will be released is always there,” said Suárez.
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The nonprofit news outlet Injustice Watch supplied this article to the Associated Press through a collaboration with the Institute for Nonprofit News.
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