Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR MARY HOLPER ’03
Holper is an Associate Clinical Professor and Director of the Immigration Clinic at Boston College Law School. Recent articles include “The Fourth Amendment Implications of ‘US Imitation Judges’” (Minnesota Law Review, 2020) and “The Unreasonable Seizures of Shadow Deportation” (University of Cincinnati Law Review, 2018).
What has the coronavirus pandemic revealed about the strengths and weaknesses of our understanding of immigration and the system that supports it? This pandemic has demonstrated how entrenched the presumption of detention is in immigration law. When lawyers sued the Immigration and Customs Enforcement (“ICE”) and various jails that contract with ICE, seeking release for detainees because it is impossible to socially distance in a communal living setting such as a jail, the government held strong to its presumption of detention. In the government’s view, every single immigration detainee needs to be behind bars in conditions that are identical to criminal detention.
ICE detainees are presumed to be a flight risk, even though there are alternatives to detention such as electronic monitoring that allow ICE to keep track of noncitizens while they live safely in their homes, awaiting upcoming hearings. ICE detainees are presumed dangerous, even though many have never been convicted of a crime, and if they have, they already served the time deemed necessary to protect the public. The government has argued that conditions were safe after the jails added hand sanitizer, masks, and cleanings, even when detainees were still sharing meals, sleeping quarters, and bathrooms.
I wondered whether parents would deem it safe to send their children back to college dorm-living if these same protections were in place, or whether university administrators would entertain a discussion of housing students with such minor protections in place. If the conditions are good enough for ICE detainees, but not good enough for our students and children, what does that say about the perceived dignity of these different human beings?
What short- and long-term opportunities do you see arising from the pandemic for improving how we define and deliver justice? This pandemic has forced courts to create more efficient systems. It is hard to imagine a future in which massive numbers of parties and their attorneys convene together in a cramped courtroom, all awaiting a ten-minute scheduling hearing. This was one of the first types of hearings to be deemed unnecessary in immigration courts, since it brought so many people together from so many places into one courtroom, passing by courthouse security guards and crowding into elevators to arrive there. These types of hearings, ubiquitous in a variety of legal systems, are convenient for the judge. Yet they are highly inconvenient for the parties and witnesses, especially parents who must entertain small children or low-wage workers who risk losing their jobs because it is unclear how long one must be there or how many times one must return. They also decrease the availability of free legal services, since a pro bono attorney must give up endless hours of time for one client’s ten-minute hearing, leaving fewer available hours for more pro bono representation.
A second improvement to the efficient working of courts is the increased capacity for electronic filings. One of my clinic students thought we should all plant trees at the end of the semester to make up for the vast amounts of wasted paper that resulted from our various court filings. What is worse, we often arrived at court with another hard copy on hand, since frequently our voluminous filings were lost beneath the other mounds of paper submitted to the clerk’s office. Judges would recommend that we simply file fewer pieces of paper, yet a lawyer’s need to develop the record, especially for the purposes of appeal, cautioned us against skimming down our filings. Electronic filings can be comprehensive without sacrificing forests of trees, and can more easily be stored and retrieved by players in the legal system. Many courts have desired to transition to an online filing system, yet it was never a priority until now.
What is your vision for a post-pandemic world: What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? I think that this pandemic has done much to show the inequalities in our society. The poor cannot socially distance. They are forced into communal living situations because it is the only affordable option. Many were living paycheck-to-paycheck and then lost the jobs they had due to society’s shutdown. The jobs that are available, in grocery stores, as home health aids, or child care for the wealthy, force them to choose a paycheck over safety. The foundations and nonprofits that once helped the poor are losing funding because our society assumes that benevolent wealthy individuals will charitably give to causes they support; it is not the government’s job to take care of the poor. Yet when everyone’s wealth is squeezed, these nonprofits that provided a lifeline to the poor lose private donations, so they can offer less assistance.
I also think that the pandemic has caused us to consider who belongs where. Families have decided whether to join “bubbles” with other families, creating one large family. States that serve as vacation destinations, especially to big-city dwellers, have put away the welcome mat, fearing the spread of the virus and wishing to preserve their groceries and hospital beds for their own residents.
Countries, too, have closed borders to incoming migrants, out of similar fears and desires to preserve services for one’s own citizens. Citizenship is always a fascinating topic because nobody can agree on how membership to the club should be allocated. In a global pandemic, decisions about who belongs where have never seemed so crucial.
Read all faculty Vision Project interviews here.