The N.C. General Assembly has passed a controversial Republican-sponsored bill that would require sheriffs to hold suspects in certain crimes for at least 48 hours when their immigration status is unknown or they are in the country illegally.
The “ICE bill” was fast-tracked through the General Assembly in the final week of the regular 2022 session.
The next step: a likely veto from Democratic Gov. Roy Cooper. He vetoed a similar Republican-sponsored bill in August 2019.
Cooper’s office could not be immediately reached for comment about his plans for SB101.
Cooper has 10 days to sign the bill, veto it or let it become law without his signature.
Senate Bill 101 resurfaced last week after being dormant since March 2021. Sen. Joyce Krawiec, R-Forsyth, is among the cosponsors.
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Titled “Require Cooperation with ICE 2.0,” it cleared the House floor by a partisan 65-47 vote Thursday over objections by several Democrat legislators.
Critics say the measure could increase jail time for suspects who have otherwise met the conditions for release. They also point out it would force sheriffs offices to to investigate the immigration status of anyone booked into the jail.
Since the House made a slight change to SB101, the Senate was required to agree or reject the change. The Senate voted Friday 25-19 — also along partisan lines — to accept the changes.
At least 30 Senate and 72 House votes are required to overturn a governor’s veto.
“The governor has previously expressed concern about politically motivated laws that allow Washington, D.C., to supersede local law enforcement’s ability to keep our communities safe, and this appears to be one of those,” Mary Scott Winstead, deputy communications director for Cooper, said Tuesday in discussing SB101.
Expectations of a Cooper veto are “so high that Senate Democrats didn’t even speak against the bill when they had an opportunity” Friday, said Mitch Kokai, senior policy analyst with conservative thinktank the John Locke Foundation.
“They voted against it, knowing that the governor will almost certainly block the bill and that supporters lack the votes to override the veto.”
Kokai has said Republican leadership likely revived SB101 to use it as a campaign issue in this year’s legislative races.
“Supporters have used this legislation to state clear opposition to local sheriffs who refuse to cooperate with federal immigration authorities,” Kokai said. “Perhaps the issue will play a role in some electoral contests this fall.
“Republicans are likely to revisit this measure with greater success next year if they secure veto-proof supermajorities in November.”
The passage of SB101 is “a classic messaging bill that is intended to put legislators on record for their votes, and in ways that can sometimes be difficult to defend in re-election campaigns,” said John Dinan, political science professor at Wake Forest University who is a national expert on state legislatures.
“That is presumably one reason for bringing this bill back for a vote in the final week of the session — to help Republicans in this year’s state legislative election campaigns and put some Democratic lawmakers on the defensive in their campaigns.”
‘Politics over public safety’
Sen. Chuck Edwards, R-Henderson and the bill’s primary sponsor, said changes made to SB101 address Cooper’s concerns in HB370.
Edwards told the Rules and Operations committee Thursday that SB101 is necessary because “a number of sheriffs have refused to cooperate” with the federal Immigration and Customs Enforcement division of U.S. Department of Homeland Security.
Rep. Dustin Hall, R-Catawba, said during the House floor debate that SB101 would prevent sheriffs who aren’t cooperating with ICE officials “from putting politics over public safety.”
The Forsyth County Sheriff's Office issued a statement after SB101 cleared the legislature that included a quote from Sheriff Bobby Kimbrough Jr., who opposed the previous efforts in 2019.
“We will continue to do what is moral, what is legal and what is right," Kimbrough said. "We have been and will continue to be a law-abiding law enforcement agency."
Similar opposition has been stated by other urban sheriffs.
Edwards cited what he calls increased interest in SB101 from sheriffs that border the urban counties “that crime is escalating and more and more incidents of human trafficking, drug use and increased gang activity.”
SB101 details
The current version of SB101 would require sheriffs to:
* Inform ICE when a person charged with certain offenses is in custody and authorities are not sure about that person’s legal residency or U.S. citizenship.
According to SB101, those offenses include homicide; rape and other sex offenses; kidnapping and abduction; human-trafficking offenses; certain gang-related offenses; assault; violation of a domestic violence protective order; and “other most serious misdemeanors.”
* Hold affected suspects in custody for 48 hours or until ICE resolves the request.
* Create reporting requirements related to ICE queries.
Edwards said the current version of SB101 differs from HB370 in two ways.
“Instead of requiring a query of ICE on any infraction of anyone who is brought into a jail, it only requires an inquiry when someone is accused of the most heinous crimes.”
Edwards said the second major difference reflects concerns expressed by Cooper about potential criminal penalties for sheriffs who decline to cooperate with ICE involving jail detainees.
The initial version of SB101 would have made that a class 1 misdemeanor, which carries a 120-day jail sentence and a discretionary fine. Subsequent language would have made an uncooperative sheriff or other law-enforcement official subject to a class 3 misdemeanor, which carries a 20-day jail sentence and a $200 fine.
HB370 would have allowed a Superior Court judge to remove a sheriff or police officer who didn’t follow the legislation’s provisions and did not cooperate with ICE agents.
Those penalties are eliminated in the latest version, Edwards said Tuesday.
Forsyth sheriff's response
The Forsyth sheriff's statement included comment about how the office and ICE cooperate with detainers.
"As has been our process since before Sheriff Kimbrough took office, ICE is notified of anyone whose immigration status we are unable to confirm when they enter the detention facility, and we do receive and document any I-203 forms that ICE may send," according to the statement.
"ICE is notified again when any individual on which they have sent a detainer request has met the conditions of their release and is beginning the release process from the detention center. We do not hold an individual in our custody beyond the time of which they have met the conditions of their release, as we will not knowingly violate an individual’s rights."
The statement said ICE agents "have the authority and ability to come to the Detention Center and assume custody of an individual."
"We continue to work with ICE on a daily basis, most notably via one of our deputies being assigned as a full-time task force officer with Homeland Security and investigating violent crimes, human trafficking and narcotic activity.
SB101 background
In March 2021, the state Senate approved SB101 along partisan lines by a 27-20 vote.
SB101 was amended to change the first due date of the annual reporting from Oct. 1, 2022, to Oct. 1, 2023, and the effective date of the legislation to Dec. 1, 2022, from Dec. 1, 2021.
“What SB101 will do is require local law enforcement to work with federal immigration officials in the interest of public safety amid growing public concern ... about people who have come across our borders illegally,” Edwards said.
SB101 creates a process for a judicial official to follow for every person in custody who is subject to an ICE detainer or administrative warrant.
Meanwhile, SB101 excludes state and local law-enforcement officers or agencies from “having criminal or civil liability for action taken pursuant to an order issued” in the legislation.
Rep. Vernetta Alston, D-Durham, said she opposed SB101 primarily because of the oversight and financial burden it places on sheriff offices that adds to their workload. She also questioned the constitutionality of the 48-hour confinement period.
Edwards countered by saying if SB101 were to impose a financial burden on sheriff offices, “it would be an illustration of just how desperately this bill is needed ... because it means there would be more folks charged with heinous crimes required to be detained.”
According to ICE’s website, there are 15 local law enforcement agencies in North Carolina listed as participating entities in what is known as the 287(g) program. It allows local officers to “perform limited immigration law enforcement functions.”
In Northwest N.C., that includes the Alamance, Randolph and Rockingham sheriff’s offices.
Edwards said the N.C. Sheriffs’ Association “was in strong support of (HB370) in 2019. On this version, they have chosen to take no action, which to me says that they are in still in full support of the concept.”
Hall repeated the association’s strong support during the House floor debate.
The sheriffs’ association “has not issued any statement on this legislation, last year or this year,” Eddie Caldwell, the association’s general counsel, said Tuesday.