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Sizing up 3 options on ICE detainers

Does Baker’s approach represent middle ground?

Debate over immigration policy has bubbled up for years at the federal level, and now the recent decision by the Massachusetts Supreme Judicial Court in the case of Lunn v. Commonwealth has brought it to the forefront for state legislators, too. Attention has coalesced around three bills, each touching on a similar set of issues, but pulling in different directions across the political spectrum.

The debate hasn’t formally begun yet in the Legislature, which has recessed for the summer. But it has become a hot issue in the so-far sleepy campaign for governor and mobilized immigrants and their advocates. The rhetoric has become charged, with some advocates calling Gov. Charlie Baker a racist for urging cooperation with federal immigration officials and accusing him of joining President Trump’s “deportation machine.”

The SJC decision set the stage for the legislative debate with a ruling that stated unequivocally that detaining someone against their will on behalf of federal immigration officials constituted an arrest that is not authorized under existing Massachusetts law. In its opinion, the court said the Legislature could pass a law authorizing that type of arrest, but expressed no view on whether such a statute would be constitutional or be preempted by federal law.

Three bills have emerged to fill the legal void identified by the court decision. Each bill focuses on how far state and local law enforcement officers should go in cooperating with US Immigration and Customs Enforcement (ICE) agents to enforce federal immigration rules. The Safe Communities Act, filed in January with support from immigration law workers and advocates such as the American Civil Liberties Union of Massachusetts, would completely bar local police from detaining individuals in custody who are wanted by ICE.

A contingent of House conservatives is pushing a bill giving state and local law enforcement officers the ability to enforce federal laws at their individual discretion, and make arrests based solely on immigration status. The third bill, filed by Baker in early August as a direct response to the SJC decision, would allow state and local law enforcement officials to honor ICE detainer requests when dealing with a person already in custody who is believed to be a “threat to public safety.” According to the governor’s bill, a person is considered a threat to public safety if they are suspected of terrorism or previously convicted of a felony, an aggravated felony, participation in a criminal street gang, domestic violence, sexual abuse, trafficking in persons, burglary, unlawful possession of a firearm, drug distribution, or any offense for which the person was sentenced to more than 180 days in jail. The detainer request must also come with an official warrant for the individual before the local officer can honor the request.

Baker has positioned his bill as middle ground between the Safe Communities Act and the legislation filed by House conservatives. “Any detention authorized by this bill would be limited to aliens already

independently in state custody because of new state criminal charges or sentences: state and local police would not be empowered to proactively arrest people for immigration law violations,” Baker stated in his filing letter.

An important point that each bill considers is the amount of time an individual may be detained at the behest of ICE. The governor’s bill allows detention for up to 12 hours, though longer detainment is allowed after additional judicial review. The bill pushed by House conservatives would allow longer detentions without any judicial review at all, up to 48 hours beyond the time that the person would otherwise be released. The Safe Communities Act would bar any detainment for purposes of immigration law enforcement, including to honor an ICE detainer request, and prohibits local law enforcement from notifying any Department of Homeland Security (DHS) officials about the pending release of someone who has been the subject of an ICE inquiry.

The bills also take sharply different approaches to individual rights and constitutional protections. The Safe Communities Act spells out several rights to notification and counsel, and even goes as far as prohibiting federal agents from interviewing a person in local custody unless the person gives written consent to the interview. It also provides the person the right to an attorney (if they cannot afford one, federal agents aren’t allowed to interview them) and a translator for those who are less proficient in English.

By comparison, Baker’s bill explicitly states individuals under detainment have no right to appear in court, either in person or by counsel. This portion of the bill has been criticized by Democratic gubernatorial candidate Setti Warren, but the governor’s aides argue that their approach is in line with the Massachusetts rule of criminal procedure – which allows for a maximum of 24-hour detainment without probable cause being determined. The House GOP bill, like the other two bills, allows the individual to obtain copies of the detainer requests, but provides no specific rights to appeal, counsel, or translation of documents.

Another crucial distinction between the bills lies in the standard for “probable cause” each bill sets to detain an individual for ICE. The GOP bill delegates the responsibility to determine “probable cause” to the individual officer involved in the detainment, stating that the standard may be met simply based on “the personal observations and beliefs of the officer.” Baker’s bill, on the other hand, requires the involvement of “supervisory officials” at state and local police agencies, who would make the determination based on the agency’s criteria to identify a threat to public safety. With the Safe Communities Act, the phrase “probable cause” is referenced without clear instructions over who is responsible for the determination.

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Natasha Ishak

Editorial Intern, CommonWealth

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