11/05/2014 06:15 pm ET Updated Jan 05, 2015

ICE Detainers Are Unfunded Mandate and Threaten Public Safety

By Azadeh N. Shahshahani and Adelina Nicholls

In September, the Fulton County Board of Commissioners moved to limit the county's compliance with federal Immigration and Customs Enforcement requests to hold people in jail beyond the time they would otherwise be released so that the government can investigate their immigration status. These holds are known as ICE detainers.

The commissioners were right to question the practice.

Recent federal court decisions make it clear local law enforcement agencies that detain individuals on the sole authority of an ICE detainer request violate the Fourth Amendment, exposing them to legal liability unless there has been an independent finding of probable cause to justify detention. The courts have also found that it is not mandatory that local authorities comply with ICE detainers.

The detainer requests are tools of an unfunded federal mandate that imposes hefty fiscal burdens on states and localities. The federal government is not required to reimburse localities for the costs of compliance. The Fulton County Sheriff's Department confirms ICE does not reimburse it for this purpose. Even the Department of Justice program intended to reimburse localities for jailing certain immigrants pays only pennies on the dollar.

Moreover, there is no evidence holding people in detention longer under these ICE holds contributes to public safety.

Recently, a study conducted by two law professors at the University of Chicago and New York University found that Secure Communities, a program that relies on ICE detainers and local police to extend a massive deportation dragnet, has had zero effect on the crime rate. Secure Communities actually alienates community members from local police. It makes them afraid to report crime and cooperate with investigations. The result: All are less safe.

A Georgia-specific study published recently by our organizations as well as the National Day Laborer Organizing Network and the NYU School of Law Immigrant Rights Clinic also revealed troubling patterns in the implementation of Secure Communities that involved racial discrimination, indiscriminate targeting of immigrants, and the chilling effect these have had on immigrant interaction with local police.

Based on a review of data obtained from ICE through a Freedom of Information Act lawsuit, the report outlines the exponential growth of local police involvement in immigration enforcement and the unfortunate impact on residents.

Case in point: From 2007 to 2013, ICE detainers in Georgia rose from 75 in 2007 to 12,952 through June 2013. Moreover, 96.4 percent of those targeted in 2013 were of "dark or medium complexion," up from 66.7 percent in 2007. In comparison, from 2007 to 2013, ICE placed an immigration hold on only 1.6 percent of individuals with fair or light complexions.

These numbers are both damning as to what law enforcement has been doing in Georgia, and heartbreaking for their impact on Georgia communities. One can imagine the chilling effect this has had on people's confidence in the police and the risk to all of our safety when so many residents live in fear of the deportation apparatus police have lent themselves to. The report reveals the human cost, erosion of rights and rise of a culture of suspicion.

The resolution by Fulton officials asking the sheriff to limit compliance with ICE detainers is a good first step to ensure we put public safety first and protect local authorities from legal liability. Fulton County is poised to join more than 290 other localities including four states -- Colorado, California, Connecticut and Rhode Island -- that have rejected warrantless ICE detention requests. Other communities in Georgia should follow suit.

Azadeh N. Shahshahani is national security/immigrants' rights project director for the American Civil Liberties Union Foundation of Georgia. Adelina Nicholls is executive director of the Georgia Latino Alliance for Human Rights.

This piece originally appeared in the Atlanta Journal Constitution.