Massachusetts’ Republican Gov. Charlie Baker likes to position himself as a moderate who opposes Donald Trump’s most extreme policies, particularly with regard to immigration. But on Tuesday, Baker aligned himself with the president by introducing a bill that would allow state law enforcement officers to detain certain undocumented immigrants without a warrant.
Baker’s proposal is a direct response to the Supreme Judicial Court of Massachusetts’ recent decision prohibiting state and local officers from honoring so-called ICE detainers. Immigration and Customs Enforcement agents issue these requests when a local detention facility is holding an undocumented immigrant. If the facility complies, it may hold a detainee for up to 48 hours after she should have been released, giving ICE a window to retrieve and deport her. The SJC ruled that no Massachusetts law allows officers to detain an individual who should otherwise be free to go simply because ICE has issued a detainer. Thus, the court explained, Massachusetts officers who comply with ICE detainers are violating state law.
Baker now wants the Legislature to change state law to permit compliance with ICE. (He gave law enforcement the green light to honor ICE detainers in 2016.) Baker’s bill would let state enforcement officers honor ICE detainers when the undocumented immigrant in question “poses a threat to public safety.” (An individual falls into this category if he has previously been sentenced to more than 180 days in custody, if he has been convicted of a “serious crime,” or if he is “suspected of terrorism or espionage.”) Officers may hold these immigrants for up to 12 hours without any semblance of due process; after that, a judge must make a finding of probable cause.
In defense of the bill, Lt. Gov. Karyn Polito suggested the SJC ruling meant “local officials” would now “be compelled to let dangerous individuals with serious criminal histories walk free due to an ambiguity in the law.” This allegation is deeply misleading and disingenuous. There is no “ambiguity” in Massachusetts law. There is, rather, a guarantee of due process, which compels all officers to comply with certain procedures when arresting and detaining suspects. One fundamental rule of due process is that officers may not detain an individual without probable cause or a warrant. Because ICE detainers are not warrants, any state officer who honors one is infringing on the due process rights of the detainee.
Here’s how Baker’s bill, if passed, would play out in practice. Imagine an officer arrests two individuals on suspicion of armed robbery. Both are placed in a local jail. The officer discovers that one is a citizen while the other is undocumented. She also learns that both were convicted of selling marijuana (a “serious crime,” per the new bill) a decade ago. The officer alerts ICE, which issues a detainer. Then, she realizes she arrested the wrong two men. All charges against both men are immediately dropped.
Under Baker’s legislation, the citizen is free to go but the officer can detain the undocumented individual for at least another 12 hours. This person has not been charged with a crime—unlawful presence in the United States is a civil offense, not a criminal one—and his detention is not supported by probable cause, let alone a warrant. But because of Baker’s bill, he may remain locked up.
Baker and Polito should be honest about the goal of their bill. They do not wish to plug an ambiguity in the law; they want to make an end-run around the state’s highest court so Massachusetts can participate in Trump’s immigration crackdown. Baker can criticize Trump all he wants, but his words ring hollow when he’s acting to circumvent the courts and work with the president’s deportation force.