Massachusetts Police and Sheriff Departments Have Policies and Practices that Enable Widespread Collaboration and Information Sharing with Federal Immigration Enforcement. The Legislature, Municipalities, and Sheriffs Can Do More to Protect Immigrant Communities Across the Commonwealth
By Joshua Dankoff
These are not normal times; this is a moment of serious democratic backsliding by our federal government. Harvard political scientist Steven Levitsky recently labeled the United States as no longer a ‘democratic’ system but rather ‘competitive authoritarian’, meaning that there are nominally competitive elections, but that the regime is doing all it can to undermine those elections and is acting in an authoritarian manner.
I am horrified by recent incidents both in Chelsea and Everett, Massachusetts where 13-, 15- and 16-year-old children were taken directly from the municipal police station after an arrest into federal Immigration and Customs Enforcement (ICE) custody.
The Massachusetts legislature must not only defend our immigrant neighbors, but also defend the Massachusetts institutions that make up the juvenile and criminal justice systems to stop them from continuing to be co-opted by the federal authoritarian turn concerning treatment of immigrant children and adults.
Over a three-month period, I have compiled through public records requests police, sheriff and district attorney policies and examples of info sharing and collaboration between those agencies and federal immigration authorities, including but not limited to ICE. From what I have seen, the arrests and collaboration with ICE are not outliers, but rather reflect actions transpiring due to current gaps in Massachusetts law, as articulated in police policies and practices of information sharing regarding collaboration with federal immigration authorities:
The current legal framework and police policies that allow collaboration/information sharing with ICE undermine core principals of the juvenile and criminal legal systems, namely that there is a presumption of innocence, due process with an opportunity to defend oneself against allegations and a right to an attorney, among other things.
If we have any faith in our state’s own legal system, then we should allow our legal processes to run their course, and not allow our local and state-level actors (including police, prosecutors, court staff, or the sheriff department staff) to alert ICE to the whereabouts of an individual who may be undocumented, which can and does lead to their detention.
Stay away from “Good Immigrant / Bad Immigrant” rhetoric. We should not acquiesce to the federal deportation machine’s rhetoric to rush to get supposedly ‘bad’ people off the streets. Unfortunately, our own state’s leadership and policies have enabled and empowered the localization and negative rhetoric concerning so called ‘bad immigrants.’
Issue 1: The Fingerprinting Process Currently Results in Information Sharing with the Federal System: For almost anyone arrested in Massachusetts for any crime, their information is going to be shared automatically with federal authorities, including ICE, through the police fingerprinting process.
Recommendation 1: (1) Change the General Laws to not permit fingerprints to be taken unless specifically required by state law. (2) Change the General Laws to strictly ban the sharing of juvenile fingerprints with the FBI (and therefore ICE), a provision of which is included in both An Act Promoting Diversion of Juveniles to Community Supervision and Services and An Act Relative to Expungement of Juvenile and Young Adult Records. This change should also be considered for adults.
Issue 2: Police Surveillance and Information Sharing: The current policing infrastructure in Massachusetts includes significant surveillance regimes under the guise of the Boston Regional Intelligence Center (BRIC) and the Massachusetts Fusion Center, which is operated out of the State Police Department. which collects information on ‘violent associative groups’ (groups the policy formerly referred to as “gangs”), with real implications for people allegedly on these lists. There have been instances of federal policing officials working in Boston Police Department headquarters with surveillance information on individuals, including protesters, pre-arrest, is shared with the BRIC where it has been made available to be accessed by federal Department of Homeland Security (DHS) officials, including those with ICE. Again, this is information sharing from municipal police departments to federal authorities about individuals prior to arrest for any offense.
Recommendation 2: The Legislature should explore policies that provide guidance and guardrails around how information collected during surveillance that is not associated with any specific alleged crime gets shared with federal authorities. Additionally, there should be a study that explores the impact of municipal participation in federal policing taskforces, including but not limited to ICE/Homeland Security Investigations (HSI) led taskforces.
Issue 3: Many, though not all, municipal police departments have policies in place to provide guidance to officers about whether, or how, to communicate with ICE. Most of these policies pay lip service to protecting the Constitutional rights of residents, mention the Commonwealth v. Lunn Supreme Judicial Court decision and cite the importance of due process. But the substance of the policies tells a different story, with many Massachusetts police departments adopting policies that enable a wide range of police information sharing and collaboration with federal immigration authorities. It is possible that some of these policies violate the SJC decision in Lunn, the Massachusetts Constitution, the Massachusetts Civil Rights Act, Anti-Profiling or other laws. But the lack of legislative guidance in this area is glaring; even if these policies do not violate the law right now, that is a problem. The permissive state of our current General Laws allows for extensive police department discretion concerning ICE information sharing and collaboration.
Recommendation 3: While disallowing new 287(g) agreements is important to legislate, there is also an urgent need for the legislature to provide additional guardrails and guidance on local policing policies concerning information sharing and collaboration with ICE. This guidance should aim to prohibit and restrict the flow of information to, and collaboration with, federal authorities.
Issue 4: Informal communication with federal authorities requires additional oversight with a focus on accountability: It is very hard to track individual police officers’ text message or phone call communication with individual ICE officers, even if such communication is outside their own departmental policy. That is why accountability for breaking these rules is super important. There have been efforts with the Police Officer Standard and Training (POST) Commission and with some local civilian review boards to increase accountability for police misconduct. However, these efforts are often ignored and neutered by police department leadership, union leadership and individual officers.
Recommendation 4: Decouple local law enforcement and the Commonwealth’s court system from federal law enforcement, and advance policies that place a maximum limitation on collaboration and information sharing. Explore policies, including amending the statutes pertaining to the POST, that specifically hold police departments and individual officers accountable if they do collaborate with federal immigration authorities and share information.
Issue 5: County Jails: Sheriff departments are sharing daily intake logs with ICE of people coming into custody. This goes well beyond information that is publicly available and includes information that is not required by law. Almost all of the Sheriffs in the Commonwealth are doing this, and this has been documented in recent media.
Recommendation 5: The Legislature should enact statutory limits in our General Laws on the ability of sheriff ‘s departments and other local law enforcement agencies to share information with federal immigration authorities, only leaving exceptions where sharing is directly required by federal law or tied to an active criminal case.
Issue 6: Trial Court policies concerning ICE admission into courthouses and information sharing are concerning: Correspondence between Lawyers for Civil Rights and the Massachusetts Trial Court has shown the shortcomings of current Trial Court policies around information sharing with ICE. CfJJ’s own interaction with the Courts has shown that the Trial Court doesn’t know how many of its own cases concerning children are impacted by ICE detentions stating: “First, the Trial Court does not collect data on the number of children who are the subject of proceedings in the Juvenile Court and who are detained by federal immigration authorities. The Juvenile Court is not necessarily notified if or when a child who is the subject of a Care and Protection proceeding is in federal immigration custody. Second, the Trial Court is not able to determine (or to provide data about) the number of Care and Protection matters affected by ongoing immigration proceedings against parents.” We collect data on the things that they care about: By not collecting data on the number of cases impacted by ICE detentions, the Trial Court is showing a surprisingly low level of care for the people implicated.
Read CfJJ’s complete testimony to the Massachusetts Joint Committee on Race Equity, Civil Rights and Inclusion.