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Panel on ABA’s New Civil Immigration Detention Standards Emphasizes ‘Nonpunitive’ Treatment for Detainees

Panel on ABA’s New Civil Immigration Detention Standards Emphasizes ‘Nonpunitive’ Treatment for Detainees

By Gabriel McIntosh

At a recent discussion on the American Bar Association’s new civil immigration detention standards hosted by the ABA and the Center for Migration Studies, panelists addressed the treatment of detainees and emphasized that it should be nonpunitive.

An overarching concern among the panelists was the treatment of immigration detainees following a criminal incarceration model. The new standards seek to address this problem.

“They wear uniforms; they eat and sleep in the same place,” said Megan Mack, director of the ABA’s Commission on Immigration and moderator of the event. “Visits are through Plexiglas.

“People don’t necessarily receive their legal documents or else they have them taken away during cell searches,” she added. “In short, the picture I’m painting doesn’t sound much different from people who are serving time in jail, except no one in immigration detention has a right to government-funded counsel, and they don’t know how long they’re going to be there. For a lot of people, to not have a date on a calendar to look forward to is very difficult. So some people give up and just go take deportation rather than continue with their case.”

One panelist considered what she might do if she could reconstruct the detention system entirely. Said Dora Schriro, commissioner of the New York City Department of Correction, “Individuals ought to be placed and managed in the least-restrictive settings possible. When you have lots of good life skills, as this population does, why would we go out of our way to … treat them as something other than as adults?”

Essentials would be a law library because detainees do not have free counsel; worship; recreation; and person-to-person visitation, Schriro said.

Of course, real-life reform hasn’t been about starting fresh, Schriro said, but doubling back and fixing what’s broken while envisioning and building something new. “We fix what’s broken and also picture what can be and move as quickly as we can from our slightly improved, more stable model closer to our ideal notion,” she said.

Whether fixing the system or envisioning what a new system could do, Schriro said there are three important criteria to consider: capacity, competency and commitment. By capacity, Schriro said she means not just bed capacity but infrastructure: ensuring adequate resources, including the people, the brainpower, the facilities. Competency is “bringing to fruition standards,” she said. It is “the ability to find and fix the root causes of the things that are broken or the things that are not working particularly well. Excellence is a moving target. It always changes, and so the organization that takes it on has always got to be moving forward and looking forward to the next and best practices.” Finally, commitment speaks to whether there are policies, practices, programs and resources to succeed, she said.

To keep up with excellence as a “moving target,” the ABA’s new standards are a work in progress, said Donald Kerwin, executive director of the Center for Migration Studies. “We decided not to produce a set of civil detention standards for all time and ages,” he said. “Instead what we were trying to do was to produce a good, timely set of standards that could influence and guide the [Department of Homeland Security’s] transition now, and we were focused on areas in which the ABA had unique expertise, like the access to justice issue.”

Perhaps the most important part of the standards themselves are the guiding principles, set forth at the beginning of the standards. “That outlines our vision for detention reform and the kind of system we want, and we start with the assumption that any restrictions or conditions placed on residents to ensure their appearance in immigration court or their actual removal should be the least restrictive, nonpunitive means necessary to further those goals,” Kerwin said. “As a guiding principle, the standards should not be interpreted in any way to provide … less generous protections than those set forth in current DHS standards,” he said.

In the U.S., there are about 30,000 detainees on any given day, and about half of the beds that U.S. Immigration and Customs Enforcement uses are in regular jails, Mack said. The other half are in jail-like facilities. “The men and women in immigration detention are not serving criminal sentences,” she said. In some cases, “the guards in the jails that they’re in are confused about this because they don’t have the information about who the population is.”

The new standards recognize, though, that it’s going to be necessary at times to classify residents based on risk they present to others and to impose more restrictive measures on people who may present a danger either to themselves or to others, Kerwin said.

The standards build on the ABA’s longstanding efforts at increasing access to justice and humane treatment for men and women in immigration detention and address: daily living conditions; access to legal services; communications; visitation; access to religious services; accountability and oversight; and other areas. They were developed under the guidance of an expert advisory task force, which included Schriro, a former commissioner of the Immigration and Naturalization Service and other experts in corrections, medical fields and academia, Mack said.

These civil immigration detention standards “would make the system better and would come closer to what our Constitution requires,” said ABA President-Elect James Silkenat, who gave closing remarks. “Civil detention is supposed to be nonpunitive. It is not jail. It is not criminal detention.

“During the next several years, I want the ABA to continue to provide important leadership for our country in all aspects of our immigration system and our immigration laws,” he added. “I think these civil immigration detention standards set a very high standard of excellence that we intend to continue to meet.”

To listen to an audio recording of the panelists, click here.

For video, click here.

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