With immigration arrests through the roof and federal agents seemingly lurking at every courthouse in New York City, many public defenders are now counseling some clients to seek refuge on Rikers Island.
That well-meaning attorneys would actually try to get defendants confined in the hellish jail complex is a testament to just how dystopian criminal justice can be under Donald Trump. The only question is what immigrant defendants do next.
"Our clients are much safer in Rikers under the protection of Department of Correction than in court," said Sin Yen Ling, an immigration attorney with Queens Law Associates. "That is a practice that we all across the city have agreed is a strategy to protect our clients."
At least twice this spring, local public defenders have asked a judge to set bail for indigent immigrant clients to save them from ICE, according to attorneys involved in those cases and media reports. Perversely, public defenders say jailing clients is the only way to shield them from deportation amid an alarming rise in courthouse arrests—three times as many so far this year than in all of 2016, according to expert testimony before the New York City Council—thanks in part to President Trump's executive order on immigration enforcement.
That's because while ICE has almost unfettered access to courthouses nationwide, the agency's reach into Rikers Island is extremely limited.
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"New York City Council and the mayor signed off on a great detainer law that actually protects people that are housed at Rikers, which is why we have started to ask for bail," the Legal Aid Society's Tina Luongo testified at a New York City Council hearing on ICE in courts on Thursday. "ICE won't get that person unless they show a warrant."
The difference between a detainer and a warrant is roughly the difference between a request (that an immigrant not be released, so the feds can get their hands on them) and a demand. Inside New York City courthouses—or indeed almost anywhere else in the country, including most jails—ICE agents often need only ask before ushering immigrants into the depthless void of deportation proceedings.
"What defenders are doing is to make sure their clients aren't whisked away to an immigration detention center in Lumpkin, Georgia," explained Insha Rahman, a bail reform expert at the Vera Institute of Justice and a former Bronx public defender. "In other parts of the country, there is no protection whatsoever."
To be clear, the protection afforded an inmate in DOC custody is pretty limited. At best, it can give the lawyers time to plead down or expunge what are often minor charges that might count against their client in deportation court, and at worst it allows families time to get an immigration lawyer. Attorneys agree these are good things, even if it puts public defenders in the position of advocating for devils they normally revile—namely money bail and Rikers Island.
"It's shocking if the best case scenario for your client is Rikers Island, a notably dangerous facility that we're trying to close," said Ames Grawert, counsel in the Justice Program at NYU's Brennan Center. "It doesn't change my mind that we should be working to abolish money bail just because it happens to be better than ICE."
New York's sanctuary city laws virtually prohibit NYPD and the Department of Correction from aiding immigration enforcement except in extreme cases. But no such rules apply to court personnel. Often, keeping clients out of for-profit CCA detention facilities in Elizabeth, New Jersey or Lumpkin, Georgia, means working against clerks, court officers, judges and prosecutors, who delay arraignments and finger defendants on the agency's request, experts claimed Thursday.
"OCA and their employees are aiding and abetting in this process," Stan Germán, of New York County Defenders told the City Council. "When you go up to a court officer and say, 'Can you call this person's name out so I could identify who that person is and make an arrest before their lawyer gets there?' that is aiding and abetting."
In other cases, attorneys testified, court officers physically corral immigrants for detention.
"Most courtrooms have an external hallway door, and an interior door that creates a vestibule. ICE will come in, and when your client leaves they get trapped between the two sets of doors, without their lawyer," Luongo explained in her testimony, adding that court officers often ensure no one can pass while ICE makes an arrest. "We are allowing a civil servant of the federal government to come in and actually drag somebody out of a Sixth Amendment constitutional due process procedure."
A spokesman for the Office of Court Administration (OCA), which governs the city courts, said simply, "We are not involved in how the agents effect arrests." An emailed statement added that the Office has closely monitored immigration enforcement on its turf, and raised "serious concerns about ICE activity at certain locations, such as Family Court and Human Trafficking Court" with the agency.
But ICE seems to be camping out in courthouses precisely because it was evicted from its old hangout on Rikers.
"In years past, most of these individuals would have been turned over to ICE by local authorities," a Court Administration spokeswoman wrote in the emailed statement. "Now that many law enforcement agencies no longer honor ICE detainers," they have to look elsewhere, and "absent a viable address for a residence or place of employment, a courthouse may afford the most likely opportunity to locate a target and take him or her into custody."
Defense attorneys say all this has been wildly disruptive to the legal system, upending the halls of justice, scaring immigrants out of traffic court and custody hearings, and generally sowing chaos. A stay on the Island at least ensures (or makes it more likely) that defendants see trial or have a chance at a favorable plea, which they can't cop if they're in immigration detention.
"There is a mechanism by which someone could be brought from [immigration] detention to [criminal] court on their [criminal] court dates, but it is not done," Justine Olderman, the managing attorney at Bronx Defenders, said at the hearing. "What our advocates and lawyers who do immigration detention work will say is not only is [an arrest in court] problematic for that person's criminal case, but it actually makes it harder to fight their case in deportation court because they show up with an open matter."
The irony, Olderman later told me, is that New York's sanctuary law effectively shields immigrants whose alleged crimes are serious enough to warrant bail or remand, while leaving those accused of low-level, nonviolent crimes vulnerable to deportation directly from court. In the Bronx, she said, ICE agents tend to cluster around misdemeanor courtrooms, while others at the City Council hearing testified to arrests being made in arraignments, the earliest step in the criminal process from which only the most innocuous people are released, a practice attorneys said they never saw before February of this year.
Both practices would seem to contradict ICE's claim that it's arresting immigrants with "significant criminal histories," whose rap sheets alone would likely keep them in custody. ICE declined to comment on this issue beyond forwarding a memo about their court arrests.
Instead, attorneys said courthouse arrests only ensure that detainees look like criminals to immigration judges, who can sometimes grant requests for relief like bail or even a waiver to remain in the country for immigrants deemed "worthy."
"They may be denied the relief they're seeking simply on account of those charges," said Sarah Deri Oshiro, who manages the immigration practice at The Bronx Defenders. "This is true even though in many cases, had the non-citizen been allowed to fight the case at liberty, it would have resolved in dismissal or a guilty plea to a reduced charge."
With no other recourse, lawyers say the number of immigrants they send into "protective custody"—yes, on Rikers Island—seems likely to grow.
"It is pretty much the only mechanism that we have at this point for keeping our clients safe," Olderman told me. "To the extent that ICE continues to be present in the way that it has and OCA continues to fail to act, I expect you will see it a lot more."
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