The New York Times
For more than 15 years, jails that hold immigrants facing deportation have had to follow a growing list of requirements:
Notify immigration officials if a detainee spends two weeks or longer in solitary confinement. Check on suicidal inmates every 15 minutes, and evaluate their mental health every day. Inform detainees, in languages they can understand, how to obtain medical care. In disciplinary hearings, provide a staff member who can advocate in English on the detainee’s behalf.
But as the Trump administration seeks to quickly find jail space for its crackdown on illegal immigration, it is moving to curtail these rules as a way to entice more sheriffs and local officials to make their correctional facilities available.
According to two Homeland Security officials who had knowledge of the plans but declined to be identified because they were not authorized to speak publicly, new jail contracts will contain a far less detailed set of regulations.
They will make no mention of the need for translation services, for example. A current rule that detainees’ requests for medical care must be evaluated by a professional within 24 hours will be replaced by a requirement that the jails merely have procedures on providing medical care.
The new contracts will require that the jails maintain policies for suicide prevention, solitary confinement and other concerns, but will not specify what those policies should contain.
The changes, which will coincide with the closing of an office that develops regulations, will essentially hold these jails to the same standards they must follow for criminal inmates. That is a break from a long-held philosophy that people held on immigration violations, who are considered by law to be “civil” detainees, should be treated differently, and is in line with the president’s belief that the government should be tougher on unauthorized immigrants.
The moves also underscore the challenges of rapidly expanding immigration enforcement, a centerpiece of President Trump’s campaign platform. An internal memo, first reported by The Washington Post on Wednesday, revealed that Immigration and Customs Enforcement, or ICE, has procured an additional 1,100 detention beds, which are not yet being used, and has identified 27 potential facilities with space for 21,000 detainees.
And though policy makers have long wanted to reduce the reliance on local jails, the Trump administration will use them more frequently, at least in the short term, because of the time it takes to build new detention centers designed for immigrants, the two officials said.
The officials said the changes were being made to make the contracts more palatable to local officials who run the jails, who have sometimes bristled at the additional accommodations for immigrants.
“Jail is jail,” said Sheriff Richard K. Jones of Butler County, Ohio, who houses about 300 federal inmates facing a mix of criminal and immigration charges. “It’s fair and it’s humane, but we don’t put chocolates on the pillows.”
Cmdr. Jon J. Briggs, who oversees two jails in Orange County, Calif., that house 838 ICE detainees, said that he believed some of the extra requirements were necessary, like free phone calls to immigration officials and to the detainees’ national consulates, but that ICE detainees in his jails “get much more freedom and liberty.”
Immigrants in his jails are given seven hours of outdoor recreation a week, compared with two hours for everyone else. And every day, a jail worker has to walk through housing barracks to exchange the immigrants’ clothing and sheets, which must be washed daily, rather than once a week for criminal inmates. “That one seems a little overkill,” Commander Briggs said.
The officials with knowledge of the new contract language said it had been approved by ICE and was awaiting a final signoff by its parent agency, the Homeland Security Department.
Kevin Landy, the Obama administration’s director of ICE’s Office of Detention Policy and Planning, which is closing, said the changes would depart from years of efforts to improve the health and safety of people held on immigration violations, especially in jails built for serious criminals.
“A decision to simultaneously abandon detention standards could have disastrous consequences for the health and safety of these individuals,” he said.
He added that he had hoped John F. Kelly, the homeland security secretary, “wouldn’t want to dismantle the progress we had made.”
“It’s disappointing that he seems to be doing just that,” Mr. Landy said.
Sarah Rodriguez, ICE’s acting deputy press secretary, declined to comment on specific contracts, but she said the agency was “in the midst of examining a variety of detention models to determine which models would best meet anticipated detention needs.”
“ICE takes very seriously the health, safety and welfare of those in our care,” she said. “As new options are explored, ICE’s commitment to maintaining excellent facilities and providing first-class medical care to those in our custody remains unchanged.”
Only 10 percent of immigrant detainees are held in facilities operated by ICE, and private prison companies house more than half. The changes affect new contracts for “non-dedicated” facilities — those that house both criminal and immigration detainees, primarily county and municipal jails. Such facilities, which house about 25 percent of ICE inmates, are paid an average of $127 daily per detainee by the federal government.
It has not been determined whether existing jail contracts will be renegotiated to remove the detailed standards, the officials said.
All jails are subject to local, state or federal health and safety rules for criminal detention. But the Clinton, Bush and Obama administrations all added specific requirements for jails holding people on immigration violations because of their particular circumstances.
Unlike people facing criminal charges, ICE detainees have no right to a lawyer to look out for their interests, and many do not speak English or have a criminal record. Amid reports, including several in The New York Times, about mistreatment of detainees and the use of solitary confinement for weeks at a time, federal officials greatly expanded the requirements in the last few years.
According to a study conducted by the National Institutes of Health, the number of people who died in immigration detention fell to six in 2014, from 32 a decade earlier, even as the detainee population grew by about 55 percent. The study pointed to a decreased reliance on county jails and the more robust detention standards as potential causes.
The rules, known collectively as ICE’s national detention standards, were intended to prevent cases like that of Irene Bamenga, a Frenchwoman jailed in 2011 for overstaying her visa. She died of heart failure after her medicine was confiscated and requests for medical attention went unheeded. Her husband won a $1.1 million settlement from Albany County, N.Y., and undisclosed amounts from Allegany County, where she was also held, as well as from a prison health care company.
“If the current administration intends to rely more heavily on existing local detention facilities to house people that they pick up on civil administrative immigration violations,” said Michael D. Lurie, a lawyer who represented Ms. Bamenga’s family, “they can be confident that there will be more disasters like Irene Bamenga’s end result.”
The standards were introduced in 2000 and expanded in 2008 and 2011. They now span 455 pages, going into granular detail on subjects including the minimum number of toilets — one for every 12 detainees in male facilities or eight detainees in female facilities — and trash bag thickness (at least 1.5 millimeters).
Jails signing new contracts, by contrast, will instead be evaluated based on an 18-page checklist used by the United States Marshals Service for inspections of jails where federal criminal defendants are held, according to the officials with knowledge of the plans.
The shorter marshals’ standards are articulated as a series of open-ended questions, like, “Is the facility kept clean and in good repair?” with little guidance on what qualifies as sufficient.
Ms. Rodriguez, the ICE spokeswoman, said that “comprehensive medical care is provided from the moment detainees arrive and throughout the entirety of their stay.”
She added that the agency would seek to ensure that jails “meet a certain threshold of care as outlined in our contracts with facilities, as well as various detention standards.”
In 2009, the Obama administration established the Office of Detention Policy and Planning, which was responsible for “designing a new civil detention system,” officials announced. Since then, it has served as a center of activity within ICE, creating overhaul policies such as an online system to help detainees’ lawyers and families keep track of their whereabouts and directives to prevent sexual assault and protect pregnant detainees.
That office is to be closed, and while many of its policies remain in place, agency officials said they were being reviewed to ensure they do not conflict with the president’s executive orders on immigration.
Monitoring conditions at jails has been a challenge for years. A Homeland Security Department advisory committee noted last year that even the Obama administration did not always hold jails to the full list of standards. And Ms. Bamenga’s lawyer, Mr. Lurie, said the two jails where she was held had passed ICE inspections “with flying colors.”
Just last month, a report by the Homeland Security Department inspector general raised “serious concerns” over “potentially unsafe conditions” at the Theo Lacy jail, where the majority of Orange County’s ICE detainees are held.
The report found that the jail had allowed violent and nonviolent inmates to intermingle, and did not allow immigrants in solitary confinement to make phone calls or have recreation time, despite ICE standards that require one hour daily.
The inspectors also observed moldy showers and “slimy, foul-smelling lunch meat that appeared to be spoiled.”
In a statement, the Orange County Sheriff’s Department disputed the allegations regarding the meat, saying it was safe to eat, and said that other “legitimate issues” had quickly been addressed. Ms. Rodriguez called the concerns raised in the report “minor,” adding that ICE was working with the jail “to ensure all detainees are treated in a humane and professional manner.”
Commander Briggs of the Sheriff’s Department said the Trump administration had already asked him to find space for 500 more ICE detainees in the coming months. For the moment, he can find room for only 120, whom he expects to have in his jails by July.
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