In response to a letter from Gov. Paul LePage threatening to fire sheriffs in Maine who do not comply with Immigration and Customs Enforcement detainer requests to hold inmates beyond the legal limit of 48 hours without charge, or after their incarceration period ends, the Maine Sheriffs’ Association wrote back on Sept. 27 saying holding inmates was an issue that required a national solution.

Sagadahoc County Sheriff Joel Merry,the association’s immediate past president and the press contact for the letter, wrote: “The issue of the administration of the federal detainer process is a national one, with constitutional considerations, and must be resolved at the federal level. Maine’s Sheriffs are committed to continue to work with all partners to improve the detainer process. To that end, the Maine Sheriffs Association is engaging the National Sheriffs’ Association as well as legal counsel to ensure that the rights of all persons who may come into the Sheriffs’ custody are equally protected.” All 16 sheriffs endorsed the letter.

However, the issue isn’t likely to touch Merry or Lincoln County Sheriff Todd Brackett, because neither of them is in direct charge of Two Bridges Regional Jail, Brackett said.

“We’ll be OK,” Brackett said. “Our jail is run by an administrator who is an employee of the authority and of the two counties that fund it.”  The state does not have the right to force county employees to do its bidding. “In any case, I don’t think it’s ever come up.  We don’t have any ICE detainees and I don’t think we ever have.”

Right now, there is no effort to arrest detainees at the courthouses, Brackett said, but that would change the dynamic, since sheriff’s office deputies work there.

The Maine Constitution gives the governor the authority to order the sheriffs to obey any order related to law enforcement, which LePage includes to mean ICE activities.  However, he does not have the same authority over the jail administrator, who is neither a law enforcement official nor a member of the sheriff’s offices.

Sheriffs are elected officials in each county, not state employees, so the governor cannot unilaterally remove them without a precipitating complaint. Any complaint, from a body with standing in the electing county, would have to be followed by due notice and a hearing. In his letter clarifying his position after receiving the sheriffs’ letter,  LePage wrote: “One way the Governor may receive a complaint for removal is through the County Commissioners. Maine state law (30-A M.R.S.A. §441) provides county commissioners with the ability to file a complaint for removal whenever they find that the sheriff is not faithfully or efficiently performing their duties.” 

The ICE issue arose when Cumberland County Sheriff Kevin Joyce said he would no longer honor ICE warrantless detainers. He cited constitutional questions on Sept. 14. The Maine Civil Liberties Union said holding people after they should have been released violates the Fourth Amendment. The other issue is that immigration law is mostly civil law, while the jails hold people in criminal cases, not civil complaints. Merry said sheriffs have a wide range of latitude regarding ICE detainees. However, he said, the sheriffs’ association did not take a position on the issue of ICE detainees. “We spoke at a conference call on Tuesday for about two hours, and we had a lot of points of view. Most of our sheriffs have never dealt with the issue and were perplexed as to why they were brought into the problem in the first place.”