Social Distancing in Detention: An Inherent Paradox that Threatens Lives, for Detainees and the Public

By Emma Lyons

Government Accountability Project has long represented federal whistleblowers who drew attention to threats to immigrant health and safety under the Trump administration’s “zero tolerance” and “Remain in Mexico” policies. Even under normal circumstances, research has documented the aggressive spread of contagious diseases in immigration detention facilities, and those diseases have had tragic consequences already, with six children, out of the seven total who have died in and around immigration detention, dying of infectious disease according to press reports

But in a world transformed by an international pandemic, the risk of adverse health consequences in immigration centers has grown exponentially. The way that Immigration and Customs Enforcement (ICE) and ultimately the Trump administration respond to the COVID-19 pandemic will literally be the difference between life and death for many, not just for immigrants, but also for detention workers and the general population of the United States.

Government Accountability Project represents Dr. Scott Allen, a medical health subject matter expert for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties (DHS CRCL) who in 2018 raised concerns, along with his colleague Dr. Pamela McPherson, about the risk of harm to children posed by shocking weaknesses with the medical care that immigrant families and children receive while detained in family detention centers. Now Dr. Allen is working with another of our immigration clients, also a medical subject matter expert for CRCL, Dr. Josiah “Jody” Rich, to raise the alarm about the dangers the COVID-19 pandemic poses to immigrants in detention, workers at those facilities, and the public at large. Dr. Rich specializes in infectious disease and public health.. 

On March 19, 2020, Government Accountability Project sent a letter to Congress and the White House Coronavirus Task Force on behalf of Drs. Allen and Rich. In the letter, our clients recommend better screening, testing, and quarantine procedures; limiting the practice of transferring detainees; and implementing social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public. To facilitate social distancing and to reduce the risk of rapid spread of COVID-19 that would quickly overwhelm already stretched resources at local hospitals, they urge that all detainees who do not present a danger to the public should be immediately released.

The need for increased testing is obvious: the sooner we are aware of infected individuals, the sooner they can be treated and isolated from others. In our immigration system, an extensive transfer of individuals takes place daily which only increases the chances of spreading COVID-19. If infected individuals are transferred, it could rapidly spread the virus throughout the entire system, including to staff, and then to the general public. 

As our clients point out in their letter, the idea of implementing social distancing in detention facilities is an inherent paradox: detention facilities require the concentration of people in close quarters. 

But while detention facilities continue to struggle to adjust to the new required measures to cope with the pandemic, social distancing has become the norm among the general public. Schools are moving to distance learning for the remainder of the academic year, 30 governors have issued shelter in place orders, and New Jersey Chief Justice Stuart Rabner released hundreds of prisoners from county jails to minimize the dangers of the coronavirus outbreak

If there is an outbreak in an ICE detention facility, it creates an enormous public health risk because those who contract COVID-19 and require medical intervention will need to be treated at local hospitals. This increases the risk of infection and lack of available treatment for the general public as treatment facilities continue to face the potential of being inundated with numbers of cases far beyond what their resources can handle. 

We are not the only organization concerned about the health and safety of ICE detainees and the general public. Since releasing our clients’ letter, we have been fielding calls from litigation teams all over the country, including the American Civil Liberties Union, RAICES, and the National Immigration Project of the National Lawyers Guild , who are using it in support of their efforts to seek the emergency release of immigrants in detention. A judge in the Southern District of New York ruled in favor of releasing 10 immigrants from detention this past Thursday in a suit brought by Brooklyn Defender Services, citing the doctors’ letter to Congress regarding the risk of harm posed by COVID-19 as well as a CNN article about our clients’ concerns. Other courts are following suit, with judges in two cases seeking release of unaccompanied minor children and families and children in detention ordering ICE to make efforts to release those in custody to prevent the dangers of contracting COVID-19.

Government Accountability Project and our clients Drs. Allen and Rich are proud that the disclosures helped spur these decisions, and with more litigation efforts across the country, we are hopeful that our clients’ decision to raise the alarm will continue to make a positive difference for vulnerable immigrants–and  all of us–as we continue to combat this pandemic.

Despite all of our efforts, the majority of detention facilities have not taken any action, and the concerns of our clients and other immigration justice advocates are becoming increasingly dire. The first detainee in ICE custody tested positive for COVID-19 at the Bergen County Jail in New Jersey last week. Since then, another detainee at the Bergen facility tested positive. There is also a detainee at Essex County Correctional Facility in New Jersey, and another at Montgomery Processing in Houston, Texas that have tested positive.

While ICE recently announced that it will delay arresting immigrants who do not pose public safety threats and stop detaining immigrants who fall outside of mandatory detention guidelines, it is not enough to stop increasing the existing population of immigrant detainees. Effective social distancing will only be possible through the release of all detainees who do not pose an immediate risk to public safety. Otherwise, social distance will remain a paradox with real life and death consequences to immigrants in detention, workers and the general public.