OPPOSE S.

2061, ACT TO ENHANCE COMMUNITY SAFETY

Lead Sponsor: Sen. Richard T. Moore Background: This bill was filed in response to headlines that portray immigrants as threats to community safety. Research repeatedly demonstrates immigrants are less likely to commit crime than the native-born. 1 Nevertheless, and unfortunately, the majority of this bills provisions target immigrants. The bills negative impacts would be felt not only by immigrants, including those lawfully present, but by all Massachusetts residents. Several provisions would damage community-police relations, discourage crime reporting and endanger public safety. Others would invite racial profiling and burden public agencies with costly and redundant requirements. Overview: This Bill Would: Deny the state millions in annual revenues, and prevent hard-working students from obtaining a higher education by outlawing their eligibility to pay in-state tuition. Harm authorized workers, including U.S. citizens, by requiring those doing business with the state to use Everify -- a system found to have a high rate of errors that identify authorized worker as unauthorized and unauthorized workers as authorized. Reduce discretion of the Attorney Generals Office, and require the AG to spend resources verifying employee work authorization to the detriment of more serious priorities. Increase criminal penalties in ways that could invite racial profiling. Effectively bar many U.S. citizen children from public housing. Harm community-police relations, and discourage immigrants from reporting crime including domestic violence, by requiring verification of immigration status of anyone confined by police for any period of time. Require Massachusetts to report on the status of its implementation of the Secure Communities program, despite task force findings that its impact is inconsistent with stated goals. Force DOR to create and disseminate materials about the strains unauthorized workers place on the public sector, with no required accounting of immigrants contributions.

Migration Policy Institute, Debunking the Myth of Immigrant Criminality, http://www.migrationinformation.org/feature/display.cfm?id=403; Immigration Policy Center, Immigrants and Crime: Are they Connected?, http://www.immigrationpolicy.org/just-facts/immigrants-andcrime-are-they-connected-century-research-finds-crime-rates-immigrants-are; Immigration Policy Center, Immigration Policy Center, The Myth of Immigrant Crime and the Assimilation Paradox. http://www.immigrationpolicy.org/special-reports/myth-immigrant-criminality-and-paradox-assimilation

S. 2061: Analysis of Concerning Provisions

CRIMINAL PENALTIES IN SECTIONS 6, 7, 9, 10, 14, AND 15:
SECTION 6: ALLOWING AN UNLICENSED OPERATOR: Would double maximum fine (from $500 to $1000) and impose
possible 60 days imprisonment for first offense of hiring an unlicensed driver. For subsequent offenses, would impose a minimum $1000 fine, double maximum fine to $2000, and increase possible prison time from 1 to 2 years. Would increase penalties in the same manner for permitting an unlicensed driver to operate ones vehicle.

SECTION 7: DRIVING WITHOUT A LICENSE: Would change fines for a first offense of for driving without a license
(from $100 - $1000 to not more than $500) and allow for possible imprisonment of 10 days. Would increase penalties for subsequent offenses of driving without a license (For a second offense: fines of $500 - $1000 and/or up to 30 days imprisonment for a second offense. For a subsequent offense: fines of $1000-$2000a and/or up to 60 days imprisonment). Would require immigration status be checked at every initial appearance in court.

SECTION 9: PRODUCING A F ALSE ID: Would increase fines (from $500 to $2500) for producing a false identification
card. Would introduce a graduated system of increased penalties and imprisonment related to the number of documents produced (up to $25,000 fine and 15 years imprisonment for 10 or more documents).

SECTION 10: VEHICLE SEIZURE: Would provide for forfeiture of motor vehicles belonging to persons convicted of
driving without a license.

SECTION 14: USING A FALSE ID: Would increase fines from $200 to $500 for using, transferring, carrying, or
providing false information to obtain a false drivers license or liquor purchase ID card, and up to $3000 for subsequent offenses, in addition to current possible penalty of 3 months imprisonment. Would deem it a felony to make, sell or distribute such an ID card and increase fines (from $200 to $5000) and prison time (from 3 months to 5 years) for such offenses.

SECTION 15: FALSE ID TO O BTAIN EMPLOYMENT: Would increases fines (from $500 to $5000) and possible prison
time (from 1 to 5 years) for using a false ID to gain employment. Why these provisions are dangerous: Redundant, Would Invite Racial Profiling and Burden Our Courts Our court system is already overburdened, and increases in criminal penalties, particularly prison time, deserve careful consideration based on evidence they would increase deterrence. Recent investigations by the Boston Globe have found Massachusetts OUI laws against are inadequately enforced by the courts. If a motivating concern of this bill was the need to prevent OUIs, a starting point should be to examine the issue of under-enforcement of existent OUI laws.

Sections 7 and 10 in particular are likely to increase racial profiling. Provisions similar to 10 have been documented to increase traffic stops of Latino/as.2 Section 10s property forfeiture provision raises constitutional due process questions. Forfeiture of property is considered punitive and requires certain protections, such as prior notice, an opportunity to challenge the forfeiture, and a jury trial. This provision would therefore require additional funding for indigent counsel and court proceedings, and MA would be required to defend the legislation in the likely event of costly, protracted litigation.

IMMIGRATION STATUS CHECKS IN SECTIONS 8 AND 18:

SECTION 8: Would mandate the checking of immigration status of any person charged with DUI and confined by
law enforcement for any period of time. Would require verification of immigration status within 48 hours and notification to Department of Homeland Security of those whose status is not confirmed.

SECTION 18: Would mandate immigration status checks of every defendant at arraignment, and provide that
those unlawfully present must have their immigration status transmitted to ICE. Why these provisions are dangerous: Vague, Costly and Likely Unconstitutional Would discourage immigrant domestic violence survivors from seeking protection. In DV situations, parties often cross-charge one another, and immigrant victims often avoid filing complaints out of concerns about their immigration status. Would strain our overburdened court and criminal justice systems by requiring personnel to verify immigration status, entailing extensive training of law enforcement and court personnel in the intricacies of federal immigration law, particularly the complex area of derivative and acquired citizenship. The financial costs this provision would impose on our courts are likely to be high. Section 18 would conflict with state laws that constrain when and for what purpose courts may obtain immigration-related information from defendants, and undermine the careful protections in place for constitutional rights of defendants. 3 Moreover, it is likely Unconstitutional as it could potentially violate defendants rights to protection against self-incrimination 4 and, if the immigration status verification is made without counsel for defendant present, rights to counsel. 5

2 3 4

See State of Louisiana v. Juan Herrera, February 1, 2006. http://www.nilc.org/immlawpolicy/locallaw/herrera_decision_2007-02-01.pdf

G.L.c. 211D, 2 ; G.L.c. 276, 58; G.L.c. 278, 29D; SJC Rule 3:10. Fifth Amendment to the U.S. Constitution; Article 12 of the Massachusetts Declaration of Rights. 5 Sixth Amendment to the U.S. Constitution; Article 12 of the Massachusetts Declaration of Rights.

OTHER CONCERNING PROVISIONS:

SECTION 1: PUBLIC C ONTRACTS: Would bar from public contracts employers who knowingly employ immigrants
unauthorized to work. Why this provision is dangerous: Redundant and Could Invite Employment Discrimination Federal law already provides fines for knowingly employing an unauthorized worker. 6 Employers engaging in a pattern or practice violations face criminal penalties, including possible imprisonment. 7 Massachusetts law also provides for a state contractor to be debarred if convicted of a federal violation of immigration law. 8 It is unclear why this provision would further deter the hiring of unauthorized workers. Excessive penalties for hiring unauthorized workers potentially encourage employment discrimination.9

SECTION 2: E-VERIFY: Would force individuals and companies including subcontractors doing business with any
state entity to use E-verify. Why this provision is dangerous: Redundant, Costly and Error-Prone The provision is redundant as all employers must currently check immigration status through the I-9 form. Moreover, E-Verify has been shown to incorrectly identify unauthorized workers as authorized more than half the time, 10 and to incorrectly identify many authorized workers are unauthorized. 11 Employers using E-Verify often terminate or refuse to hire authorized workers misidentified as unauthorized, and such errors are difficult to redress because employers often fail to even notify the worker that they have been identified as unauthorized. 12 This requirement would be costly for small businesses, with start-up costs ranging from the thousands to tens of thousands per small business, and lesser costs continuing each year thereafter. 13 One small business estimated the cost of compliance at $27,000. 14

8 U.S.C. 1324a. 8 U.S.C. 1324a. 8 G.L. c. 29, 29F. 9 A connection between sanctions for hiring unauthorized workers and widespread discrimination against Latinos and others who appeared as if they might be undocumented was observed following passage of IRCA, the federal law that criminalized employment of unauthorized workers. Migration Policy Institute,"The Basics of E-Verify, the US Employer Verification System," July 2011. Available at: http://www.migrationinformation.org/usfocus/display.cfm?ID=846 Where redundant penalties are imposed by states, such discrimination may well increase. 10 Center for American Progress (CAP), Seen and (Mostly) Unseen: The True Costs of E-Verify, at 5. Available at: http://www.americanprogress.org/issues/2011/06/pdf/e_verify.pdf, Accessed October 28, 2011; citing Citing Westat, Findings of the EVerify Program Evaluation, (December 2009), xxxv-xxxvi. 11 A study commissioned by DHS found work-authorized non-citizens had higher rates of erroneous non-confirmations than citizens. Westat, Findings of the Web Basic Pilot Evaluation, Report Submitted to Department of Homeland Security, (September, 2007) at xxviii, 148. Available at: http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf, Accessed October 28, 2011. Even following naturalization, the discriminatory impact against the foreign born persists; naturalized citizens receive erroneous non-confirmations thirty times more often than the native-born. CAP, Seen and (Mostly) Unseen at 2, Citing Westat, Findings of the E-Verify Program Evaluation, (December 2009), xxxv-xxxvi.
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SECTION 12: HOUSING RESTRICTIONS: Effectively bars from public housing families where one or more persons do
not yet have or cannot prove a lawful immigration status, including families with U.S. citizen children. Why this provision is dangerous: Threatens Families & Children with Homelessness If upheld, the provision would effectively bar U.S. citizen children from state housing based on their parents or siblings immigration status, punishing family members for the status of their relatives. Would increase homelessness of U.S. citizen children and others, increasing the rate of homelessness in the Commonwealth and the cost to state agencies.

SECTION 13: ATTORNEY GENERAL IMMIGRATION ENFORCEMENT: Would re-criminalize employment and contracting
of unauthorized workers and require AG to create a complaint form for the public to report suspected violations, investigate each such complaint submitted and verify work authorization. Would require AG to notify ICE, DOR and local police of every complaint found not be both false and frivolous, and to refer them to a local DA for prosecution. Why this provision is dangerous: Would Strain AG Resources and Harm the AGs Community Relations Employment and contracting of unauthorized workers are already criminalized under federal 15 and Massachusetts 16 law, including fines and possible prison time. In addition, the federal government maintains a 24-hour hotline for such reporting. Would increase AGs role in the enforcement of immigration laws, requiring either additional funding or diversion of resources from more pressing investigations. Would discourage victims and crime witnesses from coming forward or assisting with prosecution of serious criminals, undermining public safety. The complaint form, by removing AG discretion, is vulnerable to abuse as a tool of harassment.

SECTION 16: ZONING AND BUILDING CODE VIOLATIONS: Would create new penalties on landlords receiving rent for
properties that violate zoning by-laws, building or other codes, with no limitation on the seriousness of the violation, including fines of $500 - $2000, relocation assistance and up to 90 days in prison. Why this provision is dangerous: Redundant and Would Invite Harassment of Landlords and Tenants Under existing law, Massachusetts already punishes (including with fines and prison time) violations of the minimum standards of fitness for human habitation and other violations that could endanger tenants health or well-being . 17 If violations are serious, a tenant can withhold rent. 18

13

A 2008 Regulatory Impact Analysis by the federal government on a proposal to mandate that certain federal contractors use E-Verify identified and estimated start-up costs in the first year for a business implementing the E-Verify system -- ranging from $1,254 for businesses with 10 employees to $24,422 for businesses with 500 employees -- some of which would continue in each subsequent year. Regulatory Impact Analysis, Employment Eligibility Verification (Federal Acquisition Regulation Case 2007-013), Final Rule, October 1, 2008, available at: http://www.regulations.gov/#!documentDetail;D=FAR-FAR-2008-0001-1609. Accessed November 17, 2011. See also CAP, Seen and (Mostly) Unseen, at 8 10. 14 Chamber of Commerce of the USA v. Chertoff, No. 08-cv-3444-AW (D.Md.) 15 I.N.A. 274A(a), (f). 16 G.L. c. 149 19C.
17
18

111 G.L.c. 127L; 105 CMR 410.000.

G.L. c. 239 8a

In Massachusetts, sanitary code violations include a host of minor issues (including, e.g. fewer than the minimum number of outlets or a window that is not weather-tight). This section includes no limitation with regard to seriousness of violations, and could easily be used to harass landlords and tenants.

SECTION 17: COURT FEES AND COSTS: Would require a Social Security Number (SSN) and Department of Revenue
verification on requests for a waiver of fees and costs associated with a civil, criminal or juvenile action. Why this provision is dangerous: Would Impose to Justice, including for Domestic Violence Victims The Probation Department is already required to verify an indigency claim of any applicant for CPCS Services with the DOR and RMV. 19 Added verification steps would impose hurdles to court access, including hurdles to pursuit of child support. The requirement of SSN verification would discourage many immigrant domestic violence survivors from seeking a divorce, protection, or other recourse.

SECTION 19: SECURE COMMUNITIES: Would require the state to report on status of implementing the Secure
Communities program and to create a liaison position to facilitate participation. Why this provision is dangerous: Diverts State Resources Toward Facilitationof a Harmful Program An independent Task Force issued a report highly critical of Secure Communities, noting its impact is inconsistent with stated goals. 20 Secure Communities harms community policing efforts by causing immigrants, even those with lawful status, to become fearful of interacting with the police. Immigrant victims of domestic violence, who may be undocumented, are particularly discouraged from seeking protection in communities where Secure Communities is implemented. In DV situations, parties often cross-charge one another, leaving victims who may be entitled to a legal immigration status vulnerable to deportation before they can access legal assistance. The provision would require MA to fund a liaison position, and to fund the reporting of status of implementation, of a program which ICE contends does not require state cooperation beyond what states are already doing in sharing fingerprints with the FBI. 21

G.L. c. 211D 2 . Homeland Security Advisory Council (HSAC), Task Force on Secure Communities: Findings and Recommendations, September, 2011. Available at http://www.nilc.org/immlawpolicy/LocalLaw/scomm-dhs-taskforce-report-2011-09.pdf 21 ICE Director John Morton rescinded all Memoranda of Agreement with states regarding Secure Communities on August 5, 2011, and stated ICE has determined that an MOA is not required to activate or operate Secure Communities for any jurisdiction. Rather, [o]nce a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part. He furthermore informed state governors that ICE would continue to deploy Secure Communities in new jurisdictions and would notify them before activating new jurisdictions in their states. ICE Director John Morton, Letter to State Governors, August 5, 2011. Viewable at: http://multiamerican.scpr.org/2011/08/theletter-from-ice-terminating-all-existing-secure-communities-moas/ Accessed November 29, 2011. See also HSAC, Findings and Recommendations, at 6-7.
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SECTION 21: BARRIERS TO E DUCATION: Bars MA high schools students from attending state college at in-state
rates unless citizens, green card holders or green card applicants. Would bar not only the undocumented from educational equality, but eliminate current eligibility of many lawful immigrants. Why this provision is dangerous: Would Harm Massachusettss Economy and Innovation Would create confusion and inconsistency with current regulations and policies. Many lawful categories of non-citizens currently eligible for in-state tuition would lose such eligibility under this law. Would deny the state $7.4 million annually in future revenue that undocumented students would contribute by attending college, were they allowed to pay tuition at in-state rates. 22 Would bar hard-working, high-achieving students from contributing to our economy and force them to work unskilled jobs, harming MAs economic competitiveness and innovation.

SECTION 23: DEPARTMENT OF REVENUE NOTICE REQUIREMENTS: Would require DOR to issue periodic notices to illustrating the risks of employing unauthorized immigrants and include estimated costs to public safety, impacts upon local school budgets, the job market, and the availability of quality housing. Why this provision is dangerous: Costly and Misleading The provision does not address contributions of immigrants to tax revenues, such as Social Security and Medicare funds, economic activity 23 and job creation, community safety, nor any other area, but orders the DOR to focus solely on presupposed costs and strains. Would burden DOR with time-consuming and expensive research.
For Further Information, please contact the MIRA Coalition: Shannon Erwin, State Policy Director: [email protected], (617)530-5480 x222.

22 23

Massachusetts Taxpayers Association Report of 2007.

If all unauthorized immigrants were removed from Massachusetts, the state would lose $12.0 billion in economic activity, $5.3 billion in gross state product, and approximately 55,467 jobs, even accounting for adequate market adjustment time. Migration Policy Institute, New Americans in the Bay State, citing an April 2008 report by the Perryman Group: http://americansforimmigrationreform.com/files/Impact_of_the_Undocumented_Workforce.pdf#page=69