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“It’s essentially an end run around the bail process,” said Laura Rótolo, a staff counsel and community advocate with the Massachusetts branch of the American Civil Liberties Union.

Rótolo was referring to plans by Barnstable County Sheriff James Cummings to use cooperation with the Immigration and Customs Enforcement agency (ICE) to hold alleged criminals past the time or the bail set by the courts. Cummings affirmed that position in an interview with this reporter on Jan 29.

“From where I stand, if I do release them back into the community, they could commit another crime,” Cummings said.

As the debate over immigration increases in urgency, one year into the Trump presidency, the Massachusetts sheriff is preparing to take sides in the debate. But Cummings isn’t taking the side that’s inspired communities across the Commonwealth to pass resolutions protecting undocumented people. Rather, Cummings and his department are about to enter into a 287(g) cooperation agreement with ICE, which would operationalize local forces to assist Trump’s regime in deporting undocumented people on the Cape.

That stance is causing some consternation in activists and civil liberties advocates on the Cape and in the Commonwealth who spoke to DigBoston.

The 287(g) program that Cummings is joining is already being implemented by two other sheriff’s departments in the state: in Bristol and Plymouth counties. In Massachusetts, sheriffs control county jails. The jails are used by ICE in Bristol and Plymouth counties as detention centers—sometimes not only for those detained in Massachusetts, but for immigrants who are arrested all over the country, said Lauren Rótolo of the Massachusetts ACLU.

“It’s an extreme form of collaboration with immigration authorities,” Rótolo said.

Cummings said that the next class for 287(g) training is hosted in Charleston, South Carolina, in May. ICE pays for it. Once the officers are trained, they’ll return to duty.

The symbolism of Cummings choosing to be a part of the Trump administration’s deportation machine in the current political climate isn’t lost on Rótolo, who said the message being sent by the move may be more important than any actions the sheriff’s department actually takes through 287(g).

“We shouldn’t lose sight of how extreme and voluntary this is,” said Rótolo. “They’re raising their hands and saying, ‘I agree and want to be a part of this.’”

There doesn’t seem to be much, if anything, that anybody on the Cape can do about it. When Cummings applied for the 287(g) program so the jail could cooperate with ICE, it didn’t matter that Barnstable County has one of the only remaining county governments in Massachusetts. Sheriff’s departments in Mass aren’t beholden to their county governments. Rather, they report to and are funded by the state. Though counter to the wishes of constituents in most towns on the Cape, working with ICE is ultimately a decision that will be made by the sheriff.

“The sheriff applied independently,” said Richard Vengroff, an emeritus professor of political science and accredited immigration representative with the Community Action Committee of Cape Cod & Islands.

The Barnstable County Assembly of Delegates attempted to pass a resolution, proposed by Provincetown’s Brian O’Malley, condemning the cooperation. But due to weighted voting power on the body, five of the 14 members were able to defeat the bill.

“The way the system here works is that representatives are from each town and their voting power is weighted by population,” Vengroff said.

Local resistance notwithstanding, Cummings says the program is useful, and not solely for detaining those here without proper papers. The sheriff said he sees the capabilities of 287(g) as giving him the ability to keep dangerous criminals off the streets. Cummings rattled off a list of crimes he alleged were committed last year by undocumented people on the Cape.

“The crimes were fairly significant,” said Cummings, “rape, threatening to commit murder, assault and battery on a child under the age of 14, child porn.”

When it came time to set bail in those cases, according to Cummings, the judges were too lenient. The sheriff added that he wants to prevent people who are accused of serious crimes from being able to post bond at all.

But that isn’t the sheriff’s call to make.

When people post bail, they should be released, said Rótolo. The ACLU staff counsel said Cummings is attempting to insert the sheriff’s office into a process where it doesn’t belong. Cummings, meanwhile, said that the concerns over his “end run around the bail process” and his alleged violations of due process are overstated.

“I think that’s a stretch,” Cummings said.

But Vengroff maintains that the challenges to civil liberties are real—and says that what the sheriff is doing may be illegal.

“People brought in for other crimes are processed, then the sheriffs accept entreaties from ICE to hold people,” Vengroff said. “We don’t think that’s legal; generally, you have to charge someone to hold them.”

Vengroff works with immigrants on the Cape to help them with their status and to navigate the American legal system. That’s work that may become more difficult after officers complete their training under the 287(g) program, especially as Cummings plans to use detainers to circumvent the courts.

That’s not good enough, said Rótolo: “You may agree or not agree with the decision, but it’s the court’s job to set bail.” She added that using ICE detainers as an “end run around the bail process” is a slippery slope and hinted at a fundamental misunderstanding—at best—of the function of the ICE detainers. Rótolo said that the detainers are for the agency to be able to deport people—not anything to do with whether or not people are dangerous. The Cape Cod Coalition for Safe Communities, an activist group, agrees.

“The real purpose of the 287(g) program is not public safety, it is deportation,” members of the coalition wrote in a statement. “It has nothing to do with the criminal justice system, or prosecuting crimes, it just takes people who are already in custody and fast-tracks them for deportation.”

The coalition stressed that it was not interested in stopping criminal prosecutions for crimes, but rather was interested in ensuring that people aren’t targeted by law enforcement solely based on their immigration status.

“We are not seeking to shield the undocumented from prosecution for crimes,” the coalition’s statement continued, “but we are standing up for due process and equal treatment.”

Due process is the issue, said Rótolo, and it’s what Sheriff Cummings is violating by using ICE to get around what he sees as leniency.

“It’s not their duty and not their responsibility to second-guess the courts,” Rótolo said. “The sheriff isn’t the person who should be determining who gets to go free.”

If you or anyone you know was detained under 287(g) in a Massachusetts jail, and you want to tell your story, please contact the author at [email protected].


This article was produced in collaboration with the Boston Institute for Nonprofit Journalism.

This Article originally appeared at DigBoston on February 6th, 2018. It has been re-posted here with the consent of that fine organization.
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