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Three States Short of a Secure Community—A Commentary by Peter H. Schuck

The following commentary was published in The New York Times on June 23, 2011.

Three States Short of a Secure Community
By Peter H. Schuck

EARLIER this month, New York and Massachusetts joined Illinois in withdrawing from Secure Communities, the promising immigration enforcement program that the Obama administration hopes to extend nationwide by 2013. The effort, begun in 2008 and since expanded to nearly 1,800 jurisdictions in 43 states and territories, links federal, state and local arrest data with the immigration status and fingerprint records of the Immigration and Customs Enforcement agency; the agency then uses that information to decide whether to deport lawbreakers.

The idea behind Secure Communities is to focus enforcement on those immigrants who pose the greatest public safety threat. The program is far from perfect — immigration officials sometimes deport minor offenders, like traffic law violators, rather than the more serious criminals, who should be the top priority. But by withdrawing from the program, these states are weakening an essential immigration enforcement tool rather than working to improve it.

Indeed, in many ways Secure Communities is already the sort of program on which people on all sides of the debate should be able to agree: it piggybacks on existing technology and databases, and it lets federal agents decide how to proceed, rather than relying on state and local police officers with little knowledge of immigration law. It fits seamlessly into established booking routines, and requires no extra input from localities or training for their officials.

Even so, many immigrant advocacy groups that pay lip service to the need for vigorous enforcement oppose Secure Communities and almost any measure that might actually increase deportations, without proposing any effective enforcement alternatives. Supporters of Secure Communities respond that the government should deport even relatively minor offenders, so long as they are here illegally.

Much of the strife over Secure Communities is simply political: most voters favor expanding deportation, while immigrant advocacy groups pressure politicians to oppose anything that might risk racial profiling or disrupt immigrant families. The result is a patchwork of state laws — some harsh, some lenient — overlaid by a Secure Communities program that some key states are now attacking. This stalemate not only undermines enforcement, but also impedes other needed reforms, like a carefully qualified amnesty for some of the more than 10 million undocumented immigrants living here.

The real issue for Secure Communities is deportation priorities. Serious crimes by immigrants, like serious crimes by citizens, are properly at the top of the list. According to the federal government, more than 85,000 deportable immigrants are already serving time for so-called Level 1 offenses, which include homicide, kidnapping and major drug offenses. Nevertheless, opponents rightly complain that too few of those being deported are the more serious criminals whom the program originally promised to remove.

But deporting the right offenders requires precisely the kind of data-sharing with local law enforcement that Secure Communities makes possible. Immigration agents need to receive that information when immigrants are booked into prison if they are to promptly identify and deport the more dangerous ones.

One tweak, which the federal agency adopted last week, is to give agents and prosecutors more discretion in how they go after offenders. Other reforms would seek more local input on how to set deportation priorities, and would provide incentives for federal officials to fry the bigger fish, not the minnows.

Of course, Secure Communities will always arouse controversy: while we can all agree that Level 1 offenders should be the first targets, and mere traffic violators should be the lowest priority, reasonable people will differ about the many in-between cases. Even some who are guilty only of immigration offenses, such as previously deported immigrants who have repeatedly returned illegally, are fair game for federal immigration agents.

Secure Communities is an essential program that is beginning to reshape its priorities. The three governors who have abandoned the program rather than working to improve it seem to be making a grand gesture intended more to impress their political bases than to strengthen immigration enforcement.

Peter H. Schuck, a professor of law at Yale University and New York University, is the co-editor of “Understanding America: The Anatomy of an Exceptional Nation."