On May 23, the Department of Justice (DOJ) announced an alteration in the State Criminal Alien Assistance Program (SCAAP) that will prohibit SCAAP funds from being used to reimburse localities for certain criminal aliens, or foreign-born criminals.

The funds will specifically exclude what are called “unknown” inmates, that is, persons who are believed to be undocumented following arrest but the Department of Homeland Security (DHS) lacks enough information to actually determine the person’s alien status; this is opposed to “known” aliens, whose undocumented status has been proved by DHS and therefore laws applying to aliens can be legally upheld. The grey language provided by the Bureau of Justice Assistance (BJA) arm of the DOJ states,

“This practice was a recognition that some of the ‘unknown’ inmates could have been undocumented if they had entered the United States illegally and never came into contact with DHS. Because there would have been no contact with DHS, DHS would not be able to confirm the alien’s status (that is, as undocumented) for eligibility of a SCAAP payment.

In order to make better use of limited SCAAP funding and to ensure jurisdictions are reimbursed only for known undocumented criminal aliens, BJA will no longer provide reimbursement for inmates whose statuses are unknown. Accordingly, only detention costs of undocumented criminal aliens, whose statuses can be confirmed by DHS as such, will be counted towards the SCAAP awards in FY 2012.”

Previous practice covered anyone assumed to be an undocumented person, unknown or otherwise. And given that an estimated 80% of “unknown” inmates in the state’s county jails are truly undocumented, according to the California State Association of Counties (CSAC), the blow could be devastating to L.A. County, costing millions more in addition to the fraction they receive in reimbursement. Though estimated to cost the county $70 million a year, a downward spiral in reimbursement funds has been trending, with $15 million given in 2009, $14 million given in 2010, and $9.9 million given last year via SCAAP funds.

The unilateral move by the DOJ is entirely legal, given they are able to modify SCAAP reimbursement practices without legislation or oversight committees. Supporters of the decision claim the austere measure will help with lackadaisical spending that is essentially improper, given that if one’s immigrant status can’t be confirmed, we shouldn’t assume they are illegally residing (the DOJ does not have any specific number as to what it costs them to reimburse for those inmates which are assumed to be undocumented but truly are not). Critics of the DOJ’s announcement are not only bothered by the latitude in which the DOJ can act on these reimbursement funds, but also the fact that they feel counties should not bear the financial burden of what they view to be a federal deficit in monitoring the borders.

Supervisor Michael D. Antonovich stated, “This decision will have a tremendous negative impact on the county. The federal government has failed to secure the borders yet forces counties to pay for the high cost of housing, food, and medical care for illegals in the jails.”

Paul McIntosh, Executive Director of CSAC, echoed the same sentiment when he stated, “As a result, a disproportionate share of the criminal justice-related costs associated with illegal immigration impacts county governments, and SCAAP related costs to local jurisdictions continue to rise. In past years, DOJ’s Bureau of Justice Assistance (BJA) has provided reimbursement credit to states and localities that have incurred costs for detaining individuals whom they believe to be undocumented criminals; in doing so, the agency has acknowledged the fact that undocumented individuals constitute a high percentage of foreign-born inmates of unknown immigration status because these individuals-who have never before been apprehended and screened by federal immigration agents-will not be in any federal immigration database.”

This comes on the heels of the amendments proposed to HR 5326, or the Commerce, Justice, Science, and Related Agencies Appropriations Act 2013, written by Representative Diane Black of Tennessee. Part of the amendment specifically focuses on SCAAP funding, where the amendment seeks to cut off funds to any State or local government that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Supporters of the proposal say this specific amendment is meant prohibit the DOJ from providing funds to “sanctuary cities,” or cities who specifically work to protect protect illegal immigrants, be it through de jure or de facto practices; these cities are viewed by some as entities whose policies are not in conformity with the aforementioned federal law. Opponents of the amendment, such as the ACLU, argue that it is unnecessary, accomplishing little given that it states that none of the funds in the SCAAP program can be used in contravention of existing law. In other words: SCAAP funds, pursuant to the statute, can’t be used by sanctuary cities in the first place to uphold their immigration-related laws; SCAAP funds are provided only for reimbursement for correctional purposes due to arrested aliens.

The amendment passed House but has failed to pass Congress.