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Opinion: When ICE fails to distinguish between the accused and the guilty, justice for all is hampered

A criminal defense attorney recounted a case where a young man got his girlfriend pregnant, leading to a heated interfamilial brawl.

His client was charged even though he was only trying to break up the fight. The client, who was undocumented, sat in jail as the case was pursued and witnesses brought in.

The district attorney, upon passing the witnesses, said: “I wonder if ICE knows there are so many witnesses from another country.”

Rebecca Galemba

Out of fear, the witnesses all got up and left. The client was deported before completion of the case and now has a warrant for failing to appear. His story illustrates how the interference of ICE in the criminal justice system not only impacts the accused, but also victims and witnesses, spreading a wider chilling effect on participation in the criminal justice system.

Interviews with criminal defense attorneys, immigration lawyers, immigrant advocates, sheriffs and district attorneys from across the political spectrum in Colorado reveal not only a diversity of policies and practices, but also differing interpretations of federal obligations to share information with ICE.

Clear state law can enhance predictability and consistency among what is otherwise a patchwork of local policies and practices.

Gov. Jared Polis recently signed HB19-1124, Protect Colorado Residents from Federal Government Overreach, into law.

The legislation provides some legal clarification around, and limits some, cooperation between local law enforcement and ICE.

Provisions include prohibiting the arrest or detention of individuals on the basis of immigration enforcement documents that fail to satisfy Colorado’s requirement for a judicial warrant, prohibiting probation from sharing personal information with ICE, and requiring law enforcement to advise immigrants of their rights and the voluntary nature of interviews with ICE while in custody.

The legislation is a scaled-back version of its predecessor, Virginia’s Law, which was extinguished in late March. Virginia’s Law would have explicitly barred certain contracts under which local law enforcement perform immigration function, constrained ICE access to non-public areas in jails without a warrant, and broadly limited information sharing in various settings, including prohibiting sharing inmates’ release dates, which are used to make immigration arrests outside of Colorado jails.

READ:  Colorado Sun opinion columnists.

Creating clear lines of authority and jurisdiction between local criminal justice systems and ICE can create more consistency and improve the execution of, and access to, justice for victims, witnesses and defendants alike.

One step would be to clarify how, and under what circumstances, information is shared between courthouses, jails and ICE.

Some local law enforcement contends they are required to share information with ICE, much as they share information with other federal law enforcement agencies.

Others justify information-sharing as public information. Information regarding who is in jail, when they will be released, and what they are in jail for, is public. According to this reasoning, jails can also share release information with someone’s grandmother.

Yet jails do not need to proactively provide this information in advance, as an attorney noted, “on a silver platter.” Grandma, for example, is not being provided with release information 48 hours in advance or given a reminder call eight hours prior.

Some attorneys note that perceptions of legal obligations to share information often conflate criminal and civil law. If collaboration with ICE is required for a criminal matter, there should be a criminal warrant. If civil, then local law enforcement has no obligation.

These are simply requests; local law enforcement should not expend resources to enforce federal civil immigration policies.

As interior enforcement has escalated and federal immigration prioritization schemes abandoned, an attorney related that “everyone [who is undocumented] is a priority.”

Whether ICE is physically present in the courtroom matters less than the fear, and increasing certainty, that any interaction with the criminal justice system will result in deportation.

In this context, if jails and courthouses share information with ICE, immigrants will be wary to collaborate with the criminal justice system.

ICE often fails to distinguish between the accused and the guilty, creating a ripple effect for anyone who needs to show up to court. This severely hampers the justice process for all Coloradans.

According to Julie Gonzales, representative for Colorado Senate District 34 and a co-sponsor of HB19-1124, “The idea of a courthouse is to be a space where … justice is blind.

“Anyone should be able to access justice. But if you’re putting your thumb on the scale, by creating the chilling effect where not everyone feels safe coming to court, you’re undermining access to justice.”

Rebecca Galemba is an assistant professor in the Josef Korbel School of International Studies at the University of Denver. Her research includes wage theft from Colorado day laborers and the intersection of interior immigration enforcement and the criminal justice system.


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