All over the country and in every aspect of life, policymakers, institutions, and individuals are taking dramatic steps to flatten the curve of the COVID-19 pandemic in an unprecedented effort to save lives. Schools are closing, restaurants and bars are shuttering or limiting their capacity and hours of operation, businesses are moving to telework whenever possible, and public health officials are encouraging people to remain at home and practice social distancing in the months ahead. On Sunday, the Centers for Disease Control and Prevention issued guidance recommending that for the next eight weeks, large gatherings of more than 50 people should be postponed. Less than 24 hours later, President Donald Trump recommended that people avoid gatherings of more than 10 people.
It is well past the time when things can remain business as usual. And that goes for every aspect of government, including the responsibility to enforce the law and to operate detention facilities housing large numbers of people.
In late February, Dr. Homer Venters, the former chief medical officer for the New York City jail system, published an op-ed arguing that the response to the novel coronavirus pandemic must take into consideration the nation’s 5,000 prisons, jails, and immigration detention facilities. A coalition of civil and human rights, criminal justice and prison and jail reform, and racial justice organizations subsequently released a platform calling on federal, state, and local officials and for-profit providers to take a series of just and humane actions in order to protect the lives and safety of incarcerated people and generally prioritize public health.
Smart criminal justice policies adopted by states and localities to preserve public health
In recent weeks, a growing number of jurisdictions have begun to take important steps to avoid unnecessarily exposing people to infection in packed courtrooms and frequently crowded and unsanitary prisons and jails.
- In Cuyahoga County, Ohio, prosecutors, judges, and the sheriff have adopted policies to decrease the local jail population by dismissing low-level drug charges against individuals with outstanding bench warrants, ordering the release of individuals who are particularly vulnerable to serious illness associated with COVID-19, and refusing to jail people arrested on minor charges.
- In San Francisco, the public defender will be seeking the release of pretrial detainees who are at heightened risk of serious health complications, and the district attorney has ordered staff not to oppose such motions where the detained person is facing misdemeanor charges or drug-related felony charges and poses no danger to the public.
- Over the weekend, police departments in Los Angeles County began to dramatically reduce the number of individuals arrested each day, choosing to issue citations instead of booking people into the jail system. In addition, Sheriff Alex Villanueva is evaluating current detainees for early release.
- On Monday, the chief judge of the D.C. Superior Court, acting upon a joint request of the U.S. Attorney’s Office and the Office of the Attorney General for the District of Columbia, entered an order allowing police to release from custody people charged with a misdemeanor, rather than hold them in detention.
A regularly updated list of these and similar policies can be found at this “Spotlight on State & Local Governments” published by The Appeal. In addition, 31 prosecutors recently signed a statement listing policies they will pursue to reduce current jail populations and incarcerate fewer people going forward. Other jurisdictions around the country should look to these examples to adopt their own smart and safe policies without further delay.
Lack of response from federal immigration officials
Unfortunately, federal immigration officials have been slower to move, adopting a series of inadequate half-measures in some areas and making no apparent changes in others. For instance, while the U.S. Department of Homeland Security (DHS) continues to refuse to issue a formal statement suspending immigration enforcement activities at or near hospitals, health care facilities, and other testing sites, U.S. Immigration and Customs Enforcement (ICE)—but not U.S. Customs and Border Protection (CBP)—has issued ad hoc assurances in response to press inquiries, scolded members of Congress in a tweet after they sent a letter raising their concern, and recently released online guidance stating that ICE operations will be conducted at medical facilities only in extraordinary circumstances.
ICE also appears to have done nothing to reduce the number of individuals arrested and booked into its custody or to reduce the number of people detained. It is a virtual certainty that COVID-19 will be introduced into the detention setting, if that has not already taken place, and that it will cycle in and out of such facilities and into the broader community through contact between detainees and staff. Already, one staff member at a privately run immigration detention facility in Elizabeth, New Jersey, is self-quarantining while undergoing testing for COVID-19.
Against the backdrop of persistent and well-documented concerns regarding the health care and sanitation in many detention facilities, immigration attorneys are filing emergency petitions for habeas corpus demanding the release of their clients from detention. One lawsuit was recently filed on behalf of nine detainees with complex medical needs who are housed at the Tacoma Northwest Detention Center in Washington state, one of the areas hardest hit by the COVID-19 pandemic so far. At this point, it appears that when it comes to immigration enforcement, it is still largely business as usual.
What needs to be done
Here are three steps that federal immigration enforcement authorities should take immediately to limit the spread of COVID-19:
- Issue a formal public statement prohibiting certain ICE or CBP immigration enforcement actions: It remains necessary—though far from sufficient—for DHS to issue a formal public statement affirming that no immigration enforcement actions will take place at or near health care facilities. The department issued such a statement during the Flint water crisis, ensuring the public that no enforcement would take place at clean water distribution sites. The Trump administration itself has issued such formal statements on nine previous occasions during natural disasters, and it is inexplicable and inexcusable that they refuse to do the same during the current crisis. In such statements—unlike in what ICE has said to date—the department typically states that its “highest priorities … are to promote life-saving and life-sustaining activities.” In any statement that the department issues pertaining to immigration enforcement actions during the current public health crisis, it should make clear that no enforcement will be taken against individuals who must pass through an interior U.S. Border Patrol checkpoint to access necessary medical care. Such checkpoints have long served as a barrier, making it difficult or impossible for undocumented immigrants to seek medical care for themselves or their children.
- Reduce immigration arrests and focus exclusively on significant public safety threats: The department must take steps to ensure that no individuals are arrested and booked into detention facilities unless there is a significant public safety threat that overrides the heightened danger to public health that would accompany their detention. Civil immigration enforcement operations should be reserved for instances in which nonenforcement would entail a significant threat to public safety, and arrests should not be made of individuals encountered in the course of such operations—for example, collateral arrests—unless there is a significant public safety justification. As in the criminal justice system, where police are increasingly being encouraged to issue citations for low-level offenses, ICE officers could issue charging documents against individuals that they encounter when detention would be inadvisable under the circumstances.
- Release vulnerable and low-risk detainees from custody: Today, there are approximately 38,000 individuals in immigration detention, the majority of whom have never been convicted of a criminal offense and likely many more of whom pose no danger to the public. Thousands of these individuals are asylum-seekers, who have already demonstrated a credible fear of being persecuted or tortured if they are returned to their home country. ICE should review detainee records and begin to release from custody—by granting parole and stipulating to bond requests, for instance—all individuals who pose no significant threat to the public, prioritizing those who are at risk of significant health consequences should they become infected, including older individuals; those with heart or lung disease, diabetes, or compromised immune systems; and pregnant detainees. Prior to release from custody—and following ICE’s new practice of taking the temperature of people before placing them on deportation flights—individuals should be screened for COVID-19 symptoms and should receive guidance regarding the latest precautions recommended by federal, state, and local officials in their area.
Reducing the number of people held in immigration detention facilities will increase the ability of facility operators and onsite medical staff to maintain appropriate levels of sanitation, impose necessary social distancing protocols, and fully separate individuals who must be kept isolated for medical reasons. To be clear, by the very nature of detention, it will be impossible for facilities to take sufficient remedial steps—such as improving sanitation—to meet public health guidelines during this pandemic. Significant changes are urgently needed not only to protect the lives of detained individuals as well as facility staff, their families, and their communities, but also to help fight community spread of the virus.
Tom Jawetz is the vice president of Immigration Policy at the Center for American Progress. Ed Chung is the vice president for Criminal Justice Reform at the Center.
To find the latest CAP resources on the coronavirus, visit our coronavirus resource page.