Courthouses have become the latest battleground in the federal government’s attempt to co-opt local criminal justice systems for immigration enforcement, raising concern among state judges that ICE arrests are interfering with the basic administration of justice.
But could local jurisdictions find defense in a medieval law? In an article forthcoming in the Yale Law Journal Forum, Christopher Lasch reaches back to the era of Henry IV and blows the dust from a doctrine that may help protect the courthouse, and those coming before it: the common-law privilege from arrest.
The common-law privilege from arrest dates back to the early 15th century, and protected individuals who had business before the court, as well as anyone who found themselves in the presence of the King, his justices, or inside the palace itself.
The doctrine was upheld in America, where it was broadly interpreted to include “all cases” and “any matter pending before a lawful tribunal,” according to the early American legal scholar Simon Greenleaf.
Today, the privilege only survives in its application to members of congress. But Lasch argues that “three compelling reasons support application of the privilege to those subjected to courthouse immigration arrests.”
First, immigration proceedings are civil, despite increasing use of criminal rhetoric by politicians over the last two decades; and the common-law doctrine was largely used to protect individuals before the court from civil arrests.
Second, historic arguments upholding the privilege are in line with the concerns of today’s courts, and in particular, the objections of local judges to ICE arrests. Officials are concerned that the threat of arrest will drive witnesses, defendants, and civil litigants away from the court, effectively cutting off access to justice– as one judge noted in a case decided in 1738 (Cole v. Hawkins), “it would produce much terror and great distraction.”
Third, the doctrine’s use in the U.S. “demonstrates that federal and state courts alike have an interest in enforcing the privilege, making the doctrine particularly apt for resolving the federalism conflict created by courthouse arrests.”
“The need for resort to ancient authority stands as evidence not of weakness in the doctrine, but of just what an aberration these courthouse immigration arrests are,” concludes Lasch.
The full article by Christopher N. Lasch can be downloaded here. This summary was prepared by Deputy TCR Editor Victoria Mckenzie. Readers’ comments welcome.