State police may fulfill ICE detainment requests

Governor Charlie Baker drew backlash last week when he announced a policy rollback allowing greater collaboration between state police and the federal Immigration and Customs Enforcement. Critics say that the move could make communities less, not more, safe by making immigrant communities wary of calling upon and assisting law enforcement, and inviting unintended legal problems for the state.

Baker’s decision eliminates a piece of former-governor Deval Patrick’s immigration policy by allowing state police to fulfill ICE requests to temporarily detain suspects who meet certain criteria.

The goal, Baker administration officials say, is to increase public safety by facilitating the deportation of serious criminals, including those involved in gangs and terrorism.

“This policy revision gives the professionals of our statewide policing agency the tools necessary to detain criminals, gang members or suspected terrorists wanted by federal authorities,” Baker said in a statement. “As before, the state police will not be enforcing federal immigration law nor will they inquire about immigration status; they will now be able to assist in detaining for our federal partners individuals who pose a significant threat to public safety or national security.”

But some say the new policy is at best, unnecessary and at worst, harmful.

Boston Mayor Martin Walsh and City Councilor Andrea Campbell, chair of the committee on Public Safety and Criminal Justice, said the policy could shatter trust between immigrant communities and law enforcement. Officers’ ability to promote safety could be impeded under such immigration policies, which may make residents fearful of reporting crimes and cooperating in investigations, they said.

Walsh said Boston will not follow suit.

Eva Millona, executive director of the Massachusetts Immigrant and Refugee Advocacy Coalition, also raised concerns about the legality of the policy, which would allow suspects to be detained without a warrant, and questioned the need for the state to get involved.

The general order, signed by State Police Superintendent Richard McKenon last week, went into effect on June 2.

Policy details

Under Baker’s policy, state police be able to hold suspects for an additional 48 hours — not including weekends and holidays — at ICE’s request. For the detainment to happen, the individual must have been arrested on a warrant or for a criminal violation, and the troop duty officer must approve the detention, according to the general order signed last week

Under current federal policy, ICE may ask state and local law enforcement to detain undocumented immigrations who are suspected of terrorism or espionage, convicted of gang-related crimes, felonies or a “significant misdemeanors” such as domestic violence or drug distribution or convicted on three or more separate misdemeanors that do not include minor traffic offenses.

ICE’s troubled history

Under former governor Patrick, compliance with such ICE detainment requests was prohibited. The Patrick administration implemented the policy in response to the federal Secure Communities program, which was criticized for deporting many undocumented immigrants who seemed to present little to no danger. According to MIRA’s Millona, 53 percent of those in Boston who were deported under Secure Communities had no criminal conviction, and of those, 13 percent were deported for misdemeanors.

“Secure Communities did not work,” Millona said.

In 2014, the Department of Homeland Security announced Secure Communities would be replaced with the Priority Enforcement Program, which put greater focus on criminals.

In a statement, Secretary of Public Safety and Security Dan Bennett cited the federal policy change as inspiration for the state’s changed approach.

“Now that ICE has moved to the Priority Enforcement Program, Massachusetts is changing its own policy to complement that effort to enhance public safety,” Bennett said.

Yet Millona said that since last March, PEP statistics have yet to be released, making it difficult to judge if the program is effective or if such state assistance is necessary.

“Why deputize state police whsen we don’t know if PEP has issues or not?” she said.

Boston declines

Boston’s Trust Act, passed in August 2014, prohibits law enforcement from detaining anyone’s release from custody solely on the grounds of immigration purposes. The one exception: Local law enforcement officials would have to follow ICE’s detainment request if they receive a court-ordered warrant for the detainment or if the severity of the crime committed marks a person as an immediate danger to the public.

Walsh said it is important for Boston police to keep building trust with communities, something that would be risked by copying the new state policy.

“In Boston we believe that the job of our police officers is to keep our neighborhoods safe and our focus will continue to be on building trust between communities and local law enforcement,” Walsh said in a statement to the Banner. ”Our police officers do not enforce immigration laws, and we will continue our policy to not detain anyone for immigration purposes that is otherwise eligible for release.” 

“Threat of detention potentially fosters anxiety for undocumented individuals over calling the police in true emergency situations. No one should live in fear of deportation when calling for aid,” City Councilor Campbell said in a statement to the Banner. “Instating such a policy disproportionately targets low-income individuals, immigrants, and communities of color.”

More than 350 jurisdictions across the nation have refused to cooperate with ICE detainment requests, including Boston, Cambridge, Somerville, Lawrence, North Hampton and Amherst, according to Millona.

Legality of detainments?

Millona said that while MIRA recognizes the law’s intention to promote safety, implementing it could bring state police into questionable legal areas.

When officials comply with ICE detainment requests, they may essentially be holding people without charging them, she said, which would be unlawful.

“Given that the detainers are not criminal warrants and the detainer does not require showing of probable cause, complying with the detainer could be unconstitutional second arrests,” Millona said. “That could invite liabilities for the state.”