It’s a huge step forward, but still could be better
LES MACK
The proposed Safe Communities Act, or “An Act to Protect the Civil Rights and Safety of All Massachusetts Residents,” consolidates local anti-deportation efforts by enacting on the state level what many municipalities have pioneered in the post-Trump era. In other words, creating a statewide “sanctuary” policy. The proposed law defines a number of practices for state and local law enforcement to follow, distinguishing their roles as distinct from that of Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) agents. Presented by James Eldridge in the Senate (Senate Bill 1305) and Juana Matías of the House (House Bill 3269), as of June 2017 it had 19 Senate and 74 House cosponsors. It has the support of over 100 organizations so far, including, Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA), Progressive Massachusetts, American Friends Service Committee (AFS), American Civil Liberties Union (ACLU), and the Pioneer Valley Workers Center (PVWC).
Currently the bill is in the Joint Committee on Public Safety and Homeland Security, where it must be approved if it is to head to a congress-wide vote. One half of the senators on the special joint committee (3 of 6) support the bill but only five of thirteen in House do. Collectively, at least two more committee members need to endorse the bill for it to advance for consideration at the state level.
All proposed bills enter the legislative process through committee review. A joint committee (as opposed to a standing committee or a conference committee) is comprised of both house and senate members. The committee must then “report out” a bill, favorably or unfavorably. Favorable bills are ones intended to pass in their original form or with certain changes or redrafting. Unfavorable bills are essentially dead, as they have received the designation, “ought not to pass.” Subsequently the bill is subject to three readings on the floor, after each of which it is subject to debate and amendments. Upon completion of the readings, the bill is then engrossed, meaning it is passed to the other legislative branch for another round of readings, debate, amendment, and finally engrossment. A bill engrossed by both branches then becomes enacted, where it awaits the governor’s signature or veto.
MIRA highlights four key features of the SCA emphasizing it 1) Focuses resources on local needs, not deportation, 2) Upholds constitutional rights and due process, 3) Bars state support for any Muslim registry, and 4) Strengthens our communities (by valuing all residents).
In technical terms, Section 41 of the SCA, “Standards for Communicating and Interacting with Federal Immigration Enforcement Agencies,” consists of ten points delineating how the bill would limit state agents from working with ICE. It would 1) prevent sharing funds, property, and equipment with ICE, 2) prevent law enforcement from asking about immigration status, 3) preclude the sharing of databases that keep records of race, gender, sexual orientation, religion, or national origin, 4) prohibit initial arrest and 5) continued detention solely based on immigration status, 6) as well as any other local participation in an ICE operation. Additionally it protects locally detained undocumented immigrants by 7) not allowing immigration status to effect bail, 8) limiting DHS agents access to detained immigrants by requiring consent, 9) requiring a warrant for other access, and 10) prohibiting the sharing sentencing information with ICE.
However, while making certain progress, the SCA includes explicit carve outs and must be read with a critical eye. These carve outs limit its efficacy and continue the unnerving trend of incremental change at the expense of outcasting certain people deemed unworthy of receiving benefits or protection. While working for progressive gains, it is key to maintain a vision transcendent of current politics, set upon structural change.
First, the SCA does not provide legal advice to detainees. MIRA obfuscates this fact by highlighting the requirement of a warrant to make an arrest and the providing of interpretive services as evidence that constitutional rights and due process are upheld. Technically, the SCA requires the detainee to consent to an interview and they can insist on the presence of an attorney, but Massachusetts does not provide the attorney. Massachusetts is not legally required to provide an attorney because undocumented immigrants are not citizens, however long they may have been residents. Undocumented immigrants are community members deserving all the protections and decencies provided to citizens. They support state and federal welfare programs (by paying taxes), but do not receive the benefits.
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Refusing to provide state-based, free legal counsel posits that undocumented immigrants are unworthy of basic human rights. It also targets a group that is least likely to be able to afford costly legal fees.
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Already local efforts have shouldered the costs of expensive lawyer and filing fees for detained immigrants. While it is important to provide mutual aid for community members, this system relies solely on the support networks that an individual detainee is able to draw upon. This creates the possibility of the public deciding who to support and who not to as undocumented immigrant stories vary and resources may be scarce. By not providing full legal support, Massachusetts is not providing an impartial judiciary process, which undermines the integrity of our legal system.
Second, the proposed bill does not protect people sentenced with a serious violent felony. By including an exception for violent felons, the SCA defines and reduces this group to a past action. We are moved by stories of law abiding undocumented immigrants ripped from their communities after decades of labor and love. Similarly, stories of rehabilitation, reconciliation, socio-economic circumstances, and histories of abuse, drugs, and violence add nuance and contextualize our understanding of a criminal act. The SCA precludes this. While making certain steps to humanize undocumented immigrants, it maintains retrograde notions of criminality.
In fact, Progressive Massachusetts specifically asks in a misconceptions section, “Will dangerous criminals be released without punishment because of safe communities?” While understandably attempting to appeal to the opposition, phrasing the question this way perpetuates the fear-mongering attitude many have about undocumented immigrants. In fact, it has been the work and success of our government (local to national) to obscure notions of criminality, especially for the undocumented community. As simply re-crossing the border or forging work documents constitutes a felony, the distinctions between civil and criminal infractions are intentionally blurred (and actually it is because undocumented immigration is a civil infraction that legal services do not have to be provided by the state). Similarly, ideas of what defines “dangerous criminals” are subject to interpretation and perversion (elaborated below in terms of Governor Baker’s proposed bill).
Third, the proposed SCA continues to allow state and local jails to hold undocumented detainees. This practice undermines the autonomy of local law enforcement from federal agencies. Holding detainees in jails demonstrates their de facto criminalization, despite the fact immigration violations constitute a civil offense. They are often held in what are euphemistically dubbed “detention centers,” where they are subject to more degrading conditions and isolation. Further, it prevents local control and oversight over our police forces and jails. If communities are to take a stand against draconian and dehumanizing immigration policy, they cannot materially benefit from the bodies of undocumented immigrants. Receiving federal funding incentivizes the detention of immigrants as an empty cell translates to lost income. Rhetoric only has so much weight and unfortunately the old adage “follow the money” again rings true.
The Safe Communities Act is an important, even if largely symbolic, piece of legislation that sends a message to the federal government and other states about real ways to resist current immigration policy. Massachusetts has already been the focus of immigration raids specifically because of its resistance to ICE’s agenda. In July, the State Supreme Court ruled against warrantless immigration detainer requests in the case Commonwealth v. Lunn. As detainer requests are not for a criminal, but civil offense, it was deemed unconstitutional for the state to hold someone beyond their regular release from custody. In response, ICE targeted the state of Massachusetts among other sanctuary cities in a four-day operation entitled, “Safe City.” “Safe City” explicitly “focused on cities and regions where ICE deportation officers are denied access to jails and prisons to interview suspected immigration violators or jurisdictions where ICE detainers are not honored.” Such operations are meant to instill fear and coerce cooperation. In fact, they demonstrate the power that state and local initiatives have in resisting racist and immoral immigration initiatives and moving public opinion.
The Safe Communities Act would also supersede Governor Charlie Baker. Like ICE, he filed legislation “authorizing but not requiring state and local law enforcement to honor detention requests… for aliens who pose a threat to public safety” after the Lunn case. The legislation broadly defines a “threat to public safety” including felony, danger to national security, drug distribution, DUI, any offense for which over 180 days were served, among other more stringent categories. Defining criminality (or deportability) broadly will inevitably criminalize and deport more people.
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Undocumented immigrants must endure suppressed wages, dangerous working conditions, physical and sexual violence, unsafe housing, and other injustices at disproportionate rates. While morally repulsive, the logic of capital (supported by the State) props up this system of exploitation.
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Immigration is highly contingent on historical processes of state violence, militarism, economic “deals,” domestic drug consumption, and a globalized world that prioritizes the free flow of goods and capital but controls the movement of people (especially laborers). Much of our economy is supported by the precarious employment of undocumented immigrants. Undocumented immigrants must endure suppressed wages, dangerous working conditions, physical and sexual violence, unsafe housing, and other injustices at disproportionate rates. While morally repulsive, the logic of capital (supported by the State) props up this system of exploitation.
Lastly, Massachusetts would not be alone in passing a “safe communities act.” California Senate Bill 54 chaptered on October 5, 2017 will also prevent state and local law enforcement with participating in the ICE raids. As the onslaught from The Right mounts, exemplified by SB 4 in Texas and nationally with section 287(g) of the Immigration and Nationality Act, through which ICE has 60 agreements with law enforcement agencies in 18 states, any resistance, even if largely symbolic is important. Statewide, the initiative is imperative as recent reports show sheriff’s from three Massachusetts counties—Barnstable, Plymouth, and Bristol—participate in the 287(g) agreements, even against public opinion. Ultimately, undocumented immigrants are being preyed upon and demonized in a battle for socio-political control. They serve as scapegoats for lost jobs and depleted social services, among other deflecting general disillusionment and outrage from the ruling elite to the marginalized and precarious group. Strong declarations of public opinion will, in the long term, set the course for inclusive notions of community and re-evaluated citizenship and immigration policies.
Les Mack is a writer in Northampton.
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