Law enforcement officers in Massachusetts cannot hold a person in custody based solely on a request from immigration officials. That decision was handed down by the state's highest court last July in a case called Lunn v. Commonwealth.
But nearly a year later, local law enforcement agencies say a partnership with the federal government allows them to continue executing these requests.
'We Are Certified ICE Representatives'
The SJC decision in Lunn said local law enforcement cannot continue to hold a person in custody who otherwise would be released just because U.S. Immigration and Customs Enforcement (ICE) asks them to do so. These requests from ICE are known as detainers. When the SJC's decision was issued, it was welcomed by some local law enforcement officials who sought direction on whether they're able to honor ICE detainers. The answer, according to the SJC, was no, state law doesn't allow for it.
Some law enforcement agents in Massachusetts, though, have said this decision from the state's highest court doesn't apply to them.
"Because we are certified ICE representatives — our officers are, who have gone through the four-week training," said Bristol County Sheriff Thomas Hodgson. In January of 2017, Hodgson signed up his department for what's called the 287(g) program, a federal partnership with immigration officials that allows the sheriff's office to serve immigration warrants and conduct interviews on behalf of ICE.
As a 287(g) partner, Hodgson chose a few of his corrections officers to be trained by ICE. Bristol currently has six trained officers and hopes to soon train an additional six.
"This was absolutely the best program for us to be able to quickly identify people that should not be let out to create more crime and cause harm to people," Hodgson said.
Under these agreements, partners are authorized, among other things, to execute ICE detainers — the same ICE detainers the SJC said state and local officials couldn't honor under Massachusetts law.
In the six months his department has been up and running with the program, Hodgson says his officers issued nearly 20 detainers for inmates who otherwise would likely have been released. Hodgson rejected any notion that issuing these detainers is at odds with the Lunn decision.
"If we were in conflict with the decision obviously that would be a big problem for us because we'd be violating the lawful decision of the judges."
Seeking More Clarity
But some of the other county sheriffs still have been hesitant to sign up for the program. Theresa Finnegan, general counsel for the Hampden County Sheriff Department, said the county has been interested in becoming a 287(g) partner but first they need more clarity.
"I think the Lunn decision has left a lot of things unclear in terms of how successful and or legal a partnership with ICE under 287(g) would be at this time," Finnegan said. "Given the fact that the law isn't clear, we don't think that this is the right time to enter into that type of partnership, although we would not be opposed to it in the future."
ICE sees these agreements as valuable public safety tools. ICE spokesman John Mohan said in an email that he wouldn't offer a legal interpretation of court decisions, but that 287(g) partnerships "significantly increase" security in partner communities.
The 287(g) contracts state that partners derive their authority to perform federal immigration tasks from the Immigration and Nationality Act. So, even though a county corrections officer is working in a county facility and being paid on a county payroll, the officer also functions as an ICE officer once he or she completes 287(g) training.
This duality is concerning for some legal observers, including former Boston federal judge Nancy Gertner.
"What the SJC is saying is that no state official can detain someone, can keep them in jail, where the only basis for that detention is an ICE detainer," Gertner said.
But what happens when that state official is operating as a federal official? It's very likely this precise question will be addressed in a future court case.
The Committee for Public Counsel said in an email that they have real concerns about the legality of 287(g) agreements under the Lunn decision, and it's something they're looking into.
This segment aired on May 21, 2018.