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Story highlights

Juliette Kayyem: It's simplistic to cast killing involving undocumented immigrant suspect as "sanctuary cities" issue

She says solution must address reality of law-abiding immigrants who don't need policing and the need to be safe from those who do

Editor’s Note: Juliette Kayyem, a CNN national security analyst, is a professor at Harvard’s Kennedy School of Government, a former assistant secretary in the U.S. Department of Homeland Security and founder of Kayyem Solutions, a security consulting firm. She is also the host of the “Security Mom” podcast and author of the forthcoming book “Security Mom: An Unclassified Guide to Protecting our Homeland and Your Home.” The opinions expressed in this commentary are hers.

(CNN) —  

The brutal rape and killing last month of Californian Marilyn Pharis, a 64-year-old Air Force veteran, was avoidable. That much we know.

One of the suspects, Victor Martinez, was in this country illegally. Martinez, well-known to both law enforcement and immigration officials for a long list of criminal charges, allegedly roamed the streets free from punishment because of rules that prohibit local jurisdictions from notifying immigration officials about the status of arrestees unless they have been charged with a serious crime.

Juliette Kayyem
Juliette Kayyem

Ralph Martin, the police chief of Santa Maria, where Pharis was killed, cast the tragedy in terms of a failure at the federal level, saying, “I am not remiss to say that from Washington, D.C., to Sacramento, there is a blood trail to Marilyn Pharis’ bedroom.”

And as a presidential campaign heats up and the issue of immigration takes center stage, some are placing this case – and last month’s San Francisco shooting of Kate Steinle, allegedly by an undocumented immigrant – at the forefront of how we think about immigration policy. They say it is a problem of “sanctuary cities.”

But to put all of our analysis on this single issue is misleading and too simplistic. Certainly, the Santa Maria police chief knows that his department had every capacity to hold Martinez for previous unlawful conduct. This fact was made clear by immigration officials in response to his statements – they added they indeed requested that Santa Maria officials hold Martinez for previous violations but were never notified by Santa Maria he had been released.

As the details of this case get worked out, it is already clear that the Pharis killing sits at the intersection of two dysfunctional systems: our overburdened criminal justice system, which cannot hold all those who come before it, and our disjointed immigration system, which cannot keep track of all undocumented immigrants.

The common understanding is that immigrants are allowed to avoid deportation proceedings in jurisdictions broadly known as “sanctuary cities,” that is places in which authorities are not required to report undocumented immigrants to the federal authorities. The term has been so vilified by its critics that it may have come as a surprise for many to learn that Santa Maria is not a haven for undocumented immigrants, according to Martin, the police chief.

Let’s pause here to explain the idea of “sanctuary cities.”

What is animating these cities – some, such as San Francisco, which proudly claim the moniker, and those that don’t, such as Santa Maria – is an attempt to add some humanity to a system that often deported those who had long ties to their communities and with relatively minor offenses.

These cities and states – whatever label you give them – determined that the only practical way to stop aggressive immigration rules was to provide a haven and to buttress effective local law enforcement. Indeed, what drove these communities was the documented reality that most sanctuary cities have less violent crime, that members of immigrant communities are often the victims of crimes and often too afraid to work with law enforcement to implicate those in their midst, for fear of being deported.

These cases have included women who were victims of spousal abuse, and employees forced to work in horrible conditions by unscrupulous employers taking advantage of their undocumented status. Thus, the most successful way to ensure that people from these communities would come forward with information was to offer them the promise that they would no longer fear being routinely deported in the process.

But it wasn’t just heartstrings and community policing that motivated these cities and states. Holding all unlawful immigrants who come before the criminal justice system was economically unviable; a city had to pay for the detention as it awaited some determination by immigration officials of a detainee’s status. Many cities, dealing with financial stress and overburdened prison systems, determined that they couldn’t serve as a replacement for a flawed immigration system and equally overburdened immigration detention centers.

The challenge in the tragic case of Marilyn Pharis, and in too many others, isn’t over ideology but resources. Martinez could have been held by numerous agencies that encountered him over the years, but all made the calculation that his offenses did not rise to the level of incarceration or even deportation.

Were they wrong? Of course, they were (though there is growing evidence that immigration services did want to be notified in one case in 2014 when Martinez was held, presumably to start deportation proceedings. Instead, according to news reports, local officials downgraded his charges, and he was soon on the street.)

But the solution isn’t as simple as “deport them all.”

With a new national focus on immigration deportation rules, however, the time is ripe to refocus efforts on our deportation rules. After all, as we have seen recently, there will be unlawful immigrants in even these kinds of cities who need to be detained and processed through deportation proceedings.

Some solutions are being tested now by the Department of Homeland Security, which is trying to ease some of the tensions between local police departments and immigration personnel.

In instances where the criminal conduct is egregious, such as a major felony or repeated and violent crimes, and the unlawful status of the criminal is known, the department would promise to take possession immediately of the person to be detained – and pay for it – to relieve local jurisdictions of the burdens of immigration enforcement.

Under this scenario, local jurisdictions that did not want to give the status of someone picked up over to immigration officials – say, someone held over a relatively minor crime and with ties to the community – would not be forced to do so. But, in those instances where the criminal is detained and charged, immigration officials could immediately take possession instead of putting the burden on local officials.

Horrible cases sometimes make for bad policy fixes. Instead of focusing on this notion of sanctuary cities, a notion that doesn’t even apply in most cases, there is another way to move forward. It would recognize the priorities and needs of local and state officials who must work with immigrant communities, and the necessity of deporting those unlawful immigrants who pose a risk to Americans’ safety and security.

Unless we see that both sides have a solid argument, we will swing wildly one way, then the other, never achieving a balance that can suit us all.

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