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3 retired Idaho judges sign letter against ICE arrests in courthouses

December 18, 2018
Jim Jones

Sixty-eight retired state and federal judges from across the country — including three from Idaho — signed their names last week to a letter sharply rebuking the director of the U.S. Immigration and Customs Enforcement for that agency’s practice of arresting people at courthouses across the nation.

The letter, dated Dec. 12, is addressed to Ronald Vitiello, who has served as acting director of the agency since June. It was drafted by officials at the Brennan Center for Justice in New York, and endorsed by judges from across the country, including former Idaho District Court Judge Duff McKee, former Idaho Supreme Court Justice Wayne Kidwell, and former Chief Justice of the Idaho Supreme Court Jim Jones. The language expresses concern that some crime victims and witnesses who are also immigrants are now avoiding courthouses and not working with prosecutors for fear of an arrest by ICE.

“Persons arrested include defendants facing criminal charges, survivors of domestic violence, persons disputing traffic tickets, and parents seeking to protect their children from unsafe living conditions,” the letter reads.

The agency’s practice of making arrests at courthouses did not begin under President Donald Trump, the letter notes — but “reports suggest there has been a dramatic increase in ICE presence in courthouses in the last two years.” The letter lists 23 states, including Oregon, Washington and Utah, in which immigration arrests at courthouses have been documented.

In some states, such as Colorado, prosecutors “had to drop several domestic violence cases when victims declined to cooperate with prosecutors out of fear they would encounter ICE officials,” according to the letter. In other parts of the country, such as California and Houston, officials noted a disproportionate decline in domestic violence reports from Hispanic communities, the letter states.

“ICE arrests have even put judges in the position of facing defendants who request to be detained, rather than released, because they know ICE officials are waiting outside the courtroom,” according to the letter.

Sara Thomas, Idaho’s administrative director of the courts, said Monday she hasn’t heard of ICE officials making arrests in Idaho courthouses. She expects she would have — such arrests can be disruptive.

That’s partly why Jones, who served on the Idaho Supreme Court for 12 years, including a tenure as its chief justice in 2015 and 2016, decided to sign on to the letter. The Brennan Center for Justice approached him about his signature about four months ago, he said Monday.

“It’s fine to arrest people in public places, but when you start essentially ambushing people when they come in to pay a traffic ticket or testify as a witness, it really impairs the administration of justice,” Jones told the Idaho Press in a phone interview.

The letter comes after ICE already made changes in January to its policy regarding courthouse arrests. Now, agents only make immigration arrests at criminal proceedings, they do not arrest family members of arrest targets, and they must work with courthouse security staff to coordinate a safe arrest.

But those policies aren’t enough for the judges. Jones said he’s heard of the decline in domestic violence victims working with prosecutors out of fear of an ICE arrest, but he said he believes that fear impedes justice in other cases, as well, such as those in which a tenant challenges unfair treatment by a landlord.

He doesn’t oppose arresting people if they have committed an immigration offense — he simply disagrees with making that arrest in a courthouse. He said he believed the letter’s timing was strategic and meant to coincide with Vitiello’s first few months as director of the agency.

The letter implores ICE officials to treat courthouses as “sensitive locations,” alongside schools, hospitals, religious buildings and public demonstrations. ICE agents don’t make arrests at sensitive locations, according to the text.

Jones said he believes the Brennan Center for Justice sought out retired judges because they would be more likely to take a stance on an issue that could be seen as controversial. But the issue is important enough for even a sitting judge to have commented, in his mind. It’s not about politics, he said — it’s about access to justice.

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