January 26, 2019

Judge and prosecutor agree: ICE arrests at courthouses threaten justice

A Michigan judge and a Massachusetts prosecutor argued that arresting undocumented immigrants at American courthouses is scaring away witnesses and crime victims and is a threat to the cause of justice.

The pair made their case at a program on Jan. 25 during the American Bar Association Midyear Meeting in Las Vegas titled “Putting ICE on Ice?”

Arrests nationwide by agents of the U.S. Immigration and Customs Enforcement (ICE) jumped from 77,000 in fiscal 2016 to 110,000 the following year, according to moderator Joshua Dratel, a New York criminal defense attorney. Some of those arrests took place in state courthouses, prompting howls of protests by lawyers, judges and academics.

In December, 67 former state and federal judges sent a letter to ICE Director Ronald Vitiello expressing concern over courthouse arrests. The letter said, in part, “The public must be able to access courthouses safely and without fear of retribution. For many, however, ICE’s courthouse arrests have made courts places to avoid.”

In 2017, the ABA House of Delegates – the association’s policy-making body – called on Congress to add courthouses to the list of “sensitive locations” where immigration authorities could not make arrests except in emergency situations. Schools and hospitals are among the locations already included on the list.

At the ABA program, Kevin Curtin, senior appellate counsel with the Middlesex County District Attorney’s Office near Boston, recalled a recent case involving a domestic abuse victim who was an undocumented immigrant. The woman decided not to enter the courthouse to extend a civil restraining order against her abuser because ICE agents were waiting inside to arrest her. As a result, the case was dismissed and the abuser bragged about it as he left the courthouse, Curtin recalled.

“That’s the kind of justice that we’re seeing with the involvement of ICE, without any kind of restraint, without any kind of guidelines on how and when they should be taking actions in courthouses,” Curtin said. “We think this is a very grave access-to-justice issue.”

Circuit Court Judge Denise Langford Morris agreed. Though ICE agents have not made any arrests at her courthouse in Oakland County, Mich., near Detroit, Morris said, “We would have pandemonium if we had witnesses, victims and defendants all terrified to come to a state courthouse.”

A third panelist, Christopher Lasch, co-director of the Immigration Law and Policy Clinic at the University of Denver Sturm College of Law, said the concept of protecting people who come to court dates to the 15th century. English law prohibited the arrest of anyone in or near the courthouse, or on their way to or from the courthouse, he said.

“The idea there is a very simple one: We want people to be able to come to the court,” Lasch said. “We want witnesses to be able to come, we want parties to be able to come, we want other people who are interested in cases to be able to come.”

Lasch proposed that state judges act to prevent ICE arrests in their courthouses. If ICE agents disregarded a state judge, “I think there would be a sympathetic ear in the federal courts,” he said.

Morris suggested that state judges work with state legislators to prevent such arrests. “We have an obligation as jurists and as lawyers to try to get ahead of what’s happening,” she said.

Lasch concluded that arresting undocumented immigrants inside courthouses is a legal and moral threat to the legitimacy of American courts.

“We could easily say, well, the person is subject to immigration arrest so why do we care where they get arrested?” Lasch asked. “The reason why we care is we value other things equally or more so, like the ability to get health care, the ability to go to school, maybe the ability to go to court and get exonerated on this case that you’ve been accused of. So I do think we’re talking about a moral value question.”

The program was sponsored by the ABA Criminal Justice Section.