COURTHOUSES HAVE BEEN a central part of the debate over limits on federal civil immigration enforcement in Massachusetts for years but have also facilitated the transfer of countless people into Immigration and Customs Enforcement custody without issue.
Representatives are poised Wednesday to alter the status quo, granting new protections for immigrants based on concerns that some skip state court proceedings out of fear of being detained and possibly deported by ICE. In doing so, lawmakers would also be disrupting a system that a top judicial leader said was built on “soft diplomacy” and has largely kept ICE from crossing red lines state officials have painted.
The bill the House is expected to pass Wednesday (H 5305), after legislative committees approved it on 11-0 and 25-0 votes, would ban civil arrests in courthouses unless the arresting officer has provided documentation to a designated judge, justice or magistrate showing that the person to be arrested is the subject of a judicial warrant or judicial order authorizing arrest. It further bans all civil arrests in courtrooms except “in extraordinary circumstances, as determined by the designated judicial official.”
Chief Justice of the Trial Court Heidi Brieger explained Tuesday how someone is currently transferred from Massachusetts custody to ICE custody “most peacefully and most risk-free.”
“We neither assist nor impede their activities in the commonwealth. What ICE does has a direct effect on the folks that use our courthouses: the judges, the victims, the witnesses, the lawyers, everybody. But we also recognize that there are situations when a transfer of somebody … from Massachusetts custody into ICE custody has to happen by virtue of federal law,” she said at a Ways and Means Committee budget hearing.
Right now, ICE will call a courthouse lockup and ask the court officer if a specific person is there. Brieger said the court’s policy allows court officers to answer that question “if that information is public.” ICE then goes to the court’s lockup area and the state transfers custody of the person to ICE.
“That will not happen any longer, under the terms of what I understand the PROTECT Act to be, because ICE will not be coming into our courthouses to effectuate an arrest,” she said.
Responding to questions from Rep. Todd Smola, who pushed Public Safety Secretary Gina Kwon earlier in the hearing to consider the benefits of establishing direct communication with ICE, Brieger described for lawmakers the more informal relationships that she said she and Court Administrator Thomas Ambrosino have had “at a very deep level” with various leaders of ICE in New England.
“It has always been my view that soft diplomacy might be able to get us some benefits. And, in fact, that soft diplomacy has kept ICE from arresting people in our courtrooms, and it has kept ICE from arresting folks on trial. In almost every instance we have said, in this kind of back-channel way, ‘Those are red lines for the Trial Court.’ And there has been almost perfect compliance with that,” she said, stressing that the Trial Court has not exceeded what the Supreme Judicial Court set out in its Lunn decision.
Brieger continued, “In exchange for that, we have given ICE phone numbers of our lockups so they can figure out how to call us, because they didn’t know how to reach us. … So we’ve actually accomplished some things by that kind of soft diplomacy.”
Smola said he thinks the chief justice is “the only person in all of the folks that we’ve talked to” who has promoted soft diplomacy with ICE. He said he wanted to highlight the example “of where you utilize soft diplomacy with some communication, that it can bear some fruit, and there is benefit to communication when it happens.”
“When there is no communication, there is zero opportunity for some of that to happen,” he said. “And that’s the point that I think I’m trying to articulate, and what I tried to articulate with the EOPSS secretary earlier today, that this does not have to be some dramatic sea change. But it can be simply coming together, talking with one another, and seeing if there are ways to get a better outcome than some of the controversial issues that we’re talking about.”