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On Dec. 12, 68 former federal and state trial and appellate judges (including four retired justices of the Montana Supreme Court) signed a letter to the acting director of U.S. Immigration and Customs Enforcement (ICE). The letter was prepared by Douglas Keith, counsel for the Democracy Program of the Brennan Center for Justice at the NYU School of law, and it addresses a chilling government policy.

ICE officers are making immigration arrests within the confines of state and federal courthouses. Worse, there has been a dramatic increase in such arrests over the last two years. These arrests have been documented in 23 states — and this may be the tip of the iceberg.

Persons arrested include individuals facing criminal charges, survivors of domestic violence, people disputing traffic tickets, parents trying to protect their children from unsafe living conditions, persons seeking family court services, and even those who are victims of human trafficking.

The judges and justices expressed their concern about ICE enforcement activities inside courthouses and requested an unequivocal guarantee from ICE that the agency would treat courthouses as “sensitive locations” in which ICE would refrain from enforcement activities, except in exigent circumstances.

Why are judges and justices so disturbed by these arrests? Quite simply, all members of the public must be able to access the courthouse for legitimate business without fear that the courthouse will become a trap for their arrest.

Judges and justices cannot do their jobs if those seeking justice and the protection of the courts do not feel secure in accessing the places where court business is conducted. Indeed, if the rule of law is to mean anything, the places where the law is adjudicated and dispensed must be treated as ICE “sensitive locations” — i.e. off-limits to immigration arrests.

Specifically, courthouses, should be treated no differently than educational institutions and schools, healthcare facilities, churches and places of worship, religious or civil ceremonies or observations such as funerals and weddings, and public demonstrations, marches, rallies and parades.

Courthouse arrests and the threat of them terrifies many seeking justice or court services. Not only are people deterred from seeking the protection of the courts, but persons whose cooperation in the prosecution of crimes is needed, will often refuse to enter the courthouse for fear of arrest. Courthouse staff are burdened by ICE activities, and altercations have occurred within the courthouse, thereby threatening innocent members of the public. In short, the safe and orderly business of the courts has been disrupted to the detriment of all who work in and seek the services of the civil and criminal justice systems.

Courts cannot be actually open to all if courthouses appear to be not open to some. The places where justice is meted out must be as sacred as a school, a doctor’s office, a church, synagogue or mosque, and a wedding, funeral or parade.

While ICE has clarified some of its protocols and policies in response to the concerns of the bench and bar, courthouse arrests continue, and the specter of those still looms large in many states and communities.

The concerns of the judges and justices must be also a concern of the public if our courts are to function safely, efficiently and meaningfully for all.

Our courthouses must be sanctuaries; they must not be turned into traps.

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James C. Nelson is a retired Montana Supreme Court justice.

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