When we served on the highest courts of New York and Texas, we committed to expanding access to justice. And while it might sound basic, ensuring access requires that everyone who sets foot inside a courtroom feels safe and believes they will have a fair opportunity to be heard.
We are troubled that this access is in jeopardy. For the past two years, federal immigration officials have effected arrests at state and local courthouses in more than 20 states. These arrests undermine the necessary sense of safety in the courthouse. According to news reports, some people arrested have been survivors of violence and human trafficking, people defending themselves from criminal charges, and parents seeking to protect their children from abuse.
Although U.S. Immigration and Customs Enforcement (ICE) pledged earlier this year to curb courthouse arrests, reports from Minnesota to North Carolina to California show they are continuing. The Immigrant Defense Project has documented even more arrests in New York courthouses this year than in 2017, and those arrested continue to include the most vulnerable.
The chilling effect of these arrests travels well beyond the courthouse doors. Indeed, data from Texas and California show that Latino communities may be avoiding the halls of justice, even when courts are the only hope for protecting their rights and personal safety, because they are worried about arrest and detention.
In Massachusetts, an undocumented woman wrote that she is afraid to go to court to seek permanent guardianship of a daughter with disabilities. In the same state, a lawful resident said he could not clear himself from an unjustified charge of assault because an undocumented eyewitness was afraid to come to court. Prosecutors in New York and Colorado have dismissed charges of violent crimes because the victims are afraid that if they show up in court to testify, ICE will arrest them. If the victims are afraid, so too are undocumented witnesses who are vital to the prosecution of crime.
When fear limits access to courts, public safety is imperiled. Our legal system must guarantee that people seeking or aiding justice will not be discouraged from petitioning the courts.
Courthouse arrests also make justice more difficult to administer. Criminal defendants may oppose their own release based on a rational fear that ICE will appear as soon as the gavel bangs.
Because of our concerns, we and 66 other former state and federal judges across the ideological spectrum have reached out to ICE’s acting director Ronald Vitello asking him to stop this practice. He should add courthouses to ICE’s list of “sensitive locations,” where ICE refrains from conducting surveillance, arrests, interviews, or searches.
Vitello has been serving as head of ICE since July and is being considered by the Senate for confirmation. Even before he is confirmed, Vitello can instruct his officers to stop this practice. For 25 years, under four presidential administrations, ICE’s policy restricted arrests in places such as schools, hospitals, religious institutions, and public demonstrations. ICE could advance justice, safety, and fairness by adding courts to this list.
Safe admittance to courthouse preserves justice. As chief judges for our states, we worked hard to achieve that goal. For many, access to our justice system is now in doubt because of ICE’s courthouse arrests. Without a shared understanding that everyone may access courts without fear, public safety is compromised, and our democracy’s guarantees are unfulfilled.
Judge Jonathan Lippman is a former Chief Judge of New York and now Of Counsel to Latham & Watkins LLP in New York City. Wallace B. Jefferson is a former Chief Justice of Texas and now a partner at Alexander Dubose Jefferson & Townsend in Austin. The opinions expressed represent the personal views of the authors.