Mr. Chairman and members of the Committee, thank you for the opportunity to submit a statement for today’s hearing on the US Department of Homeland Security’s new detention standards.
Human Rights Watch is an independent organization dedicated to promoting and protecting human rights in some 90 countries around the globe. We work to secure increased recognition of and respect for internationally recognized human rights in the United States, focusing on issues arising from excessive punishment and detention, insufficient access to due process, and discrimination.
Immigration detention is no holiday. 129 detainees have died in ICE custody since 2003,and there is credible evidence that poor medical care in detention contributed to a number of those deaths.
The 2011 Performance Based National Detention Standards published by Immigration and Customs Enforcement (ICE) represent an important step toward ensuring the safety of immigrants in detention. Among the improvements in the standards is the establishment of a new standard addressing women’s medical care.The standard addresses a longstanding failure to adequately attend to the health of women in detention. In 2008 and 2009, Human Rights Watch conducted research into the medical care provided to women in ICE detention. As part of that research, we visited nine detention centers in Florida, Texas and Arizona, and spoke with detention medical care providers and ICE officials, in addition to numerous immigration attorneys and advocates. We conducted in-depth interviews with 48 women who were in detention or had recently been released from custody. As detailed in our March 2009 report, Detained & Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention, we documented dozens of cases in which detention center medical staff either failed to respond at all to health problems of women in detention or responded only after considerable delays.
The impact of these institutional failures on individual women underscores the urgency behind the reforms ICE is currently implementing. Jameela E., a former ICE detainee, spoke with Human Rights Watch in 2008 and explained how her attempt to seek asylum in the United States had taken her from one nightmare into another.For almost four months, ICE shuttled Jameela between four county jails in Virginia. During this time, she battled with pain over half of her body due to a cyst on one of her ovaries that went untreated while she was in custody. At the first jail, they determined that she required treatment and began the process to make arrangements for surgery. But in the meantime ICE moved her, without her medical records, to another jail where they refused to provide treatment without the records. She started getting her period every two weeks and put in multiple requests to consult a doctor without success. Making it worse, at one place she was detained, she said they did not provide underwear. At none of the jails did they allow her to wear her hijab. At each jail she was strip searched. Her mental health suffered from the humiliation, and when she asked to speak to a psychologist they took her to be suicidal and placed her in solitary confinement.
Unfortunately, Jameela’s experience was not unusual among the women Human Rights Watch interviewed. Her story reflected recurring themes from our research. Human Rights Watch found that women in immigration detention did not have accurate information about available health services. Care and treatment were often delayed and sometimes denied. Confidentiality of medical information was often breached. Women had trouble accessing facility health clinics and persuading security guards that they needed medical attention. Interpreters were not always available during exams. Security guards were sometimes inside exam rooms even when there was no security risk, invading privacy and encroaching on the patient-provider relationship. Some women feared retaliation or negative consequences to their immigration cases if they sought care. A few were not given the option to refuse medication or received inappropriate treatment. Many detained women and their health care providers at other facilities were not able to obtain full medical records upon transfer or release. Women’s written complaints about poor medical care through official grievance procedures went ignored. The list goes on.
One detainee, Lucia C., had obtained a Pap smear prior to her detention and learned that the result was abnormal.Her doctor instructed her that she should follow up with Pap smears every six months to check for signs that cervical cancer was developing. When ICE detained her at a county jail in New Jersey, Lucia brought her situation to the attention of medical authorities. Initially rebuffed, she persisted:
“I was supposed to be checked every six months. I asked my daughter to send the records. I got it and I brought it to medical so they could see I’m not lying. I have asked a lot of times.”
Speaking with Human Rights Watch after almost 16 months in detention, Lucia C. reported that the medical staff still had not provided her a Pap smear. “It’s terrible,” she said, “because you feel like you have something you can die for… and you don’t have no assistance.”
During our research, we met women who required screening and treatment for breast and cervical cancer but experienced extended delays and outright denials. We met women who complained of inadequate care during pregnancy, including one diagnosed with an ovarian cyst—threatening her five-month pregnancy shortly before she was detained—who never got to see a doctor. We met pregnant women who did get a doctor’s appointment, but who were forced to be shackled in order to get there. We met mothers who were nursing their babies prior to detention and were then denied breast pumps in the facilities, resulting in fever, pain, mastitis, and the inability to continue breastfeeding upon release. We met women who had to beg, plead, and in some cases do chores within the facility just to get enough sanitary pads not to bleed through their clothes, and one woman who sat on a toilet for hours when the facility would not give her the pads she needed. We met women who sought mental health care for pre-existing conditions, including the effects of trauma and for the stress of detention, but found that the crisis orientation of services meant they could not get access to counseling and could expect to be put in isolation if their condition deteriorated to the point of suicidality.
Particularly striking are the backgrounds of the women enduring these conditions. They included asylum seekers, victims of trafficking, survivors of sexual assault and domestic violence, pregnant women, and nursing mothers. In almost all of these cases, the women we were talking to had either committed no crimes at all or no crimes of violence. They had not been found to present a danger to the community or to be a flight risk and yet they became entangled in a system of immigration enforcement that relies disproportionately on detention, and provides immigrants with health care that is in some respects inferior to that available to imprisoned criminals.
In most cases, detention is neither necessary nor cost-effective. Studies have shown that alternatives to detention – such as supervised release programs –cost roughly one-fifth as much and are as effective in ensuring that people show up for their immigration hearings.Consequently, a major first step in addressing the gross medical failures in detention should be ensuring that fewer people are subjected to them unnecessarily, through the increased use of alternatives to detention such as humanitarian parole. But the second step is recognizing that the government cannot avoid the responsibility of providing quality health care to those it detains.
ICE’s publication of the new detention standard on women’s medical care is a step in the right direction. The standard requires that women in detention have access to the screenings for cancer that are the pillars of basic women’s health care, and that proper care be provided for women during pregnancy. The new standard also provides for ICE to screen detainees to determine whether they have experienced sexual violence, a crime that occurs all too frequently during the course of migration. The standard’s provisions on access to abortion services are in keeping with constitutional requirementsand will bring ICE into line with the standards used by the US Bureau of Prisons.Similarly, the limitations on the use of restraints on pregnant women will bring ICE into the fold of custodial authorities at the state and federal level, as well as state legislatures, which have instituted prohibitions on shackling pregnant women, particularly during labor and delivery.In addition, the Eighth Circuit of the US Court of Appeals ruled in 2009 that shackling a woman during labor violates the US Constitution.These developments contribute to a growing international consensus that shackling in these circumstances is an intolerable practice, irreconcilable with human rights principles, along with prohibitions against torture and inhuman or degrading treatment.
The new standard on women’s health care, along with the package of revised detention standards, should help address some of the serious violations we have documented over the past four years. Congress should support, not attack, measures by agencies to respect the health and safety of people they confine.
The 2011 standards, helpful as they are, however, are simply insufficient to address the current risks to health and safety faced by immigration detainees. Unlike administrative regulations, which are created through a public process and can be enforced in courts, these standards were written internally and are not legally binding. The standards are not guaranteed to apply to all facilities housing detainees. Where the standards do apply, monitoring compliance with the standards will differ depending on whether the facility is run by ICE or by a private company. The 2011 standards also explicitly exclude short-term immigration detention from coverage.
ICE’s inability to adequately ensure the health and safety of its immigration detainees stems from deep flaws that underlie the agency’s detention system. These flaws remain unresolved by the new standards. ICE continues to incarcerate immigrants who have no criminal histories and are not flight risks. ICE runs an immigration detention system modeled around punitive criminal detention, even though immigration detention is not supposed to serve to punish. It is governed by a patchwork of weak and unenforceable policies. The 2011 detention standards will provide needed updates to this patchwork, but by themselves are insufficient to address all of these flaws. They do little to move the immigration detention system towards a civil model of detention, and they do nothing to address the problem of unnecessary detention. We recommend that Congress work with the administration to reexamine the role of detention in our immigration policy and question the necessity of depriving individuals in civil immigration proceedings of their freedom.
ICE records indicate that 127 detainees died between October 2003 and December 19, 2011. ICE Health Service Corps (formerly the Division of Immigration Heath Services), “List of Deaths in ICE Custody October 2003 - December 19, 2011,” http://www.ice.gov/doclib/foia/reports/detaineedeaths2003-present.pdf(accessed March 22, 2012). ICE has announced two detainee deaths in 2012. “ICE detainee passes away after being rushed to local hospital,” January 18, 2012, http://www.ice.gov/news/releases/1201/120118lasvegas.htm (accessed March 22, 2012); “ICE detainee passes away at Los Angeles-area hospital; Mexican national was being treated for pneumonia,” March 5, 2012, http://www.ice.gov/news/releases/1203/120305victorville.htm (accessed March 22, 2012).
See e.g. Florida Immigrant Advocacy Center, Dying for Decent Care: Bad Medicine in Immigration Custody, March 17, 2009, http://www.fiacfla.org/reports/DyingForDecentCare.pdf(accessed March 22, 2012); Dana Priest and Amy Goldstein, “System of Neglect,” Washington Post, May 11, 2008, http://www.washingtonpost.com/wp-srv/nation/specials/immigration/cwc_d1p1.html(accessed March 22, 2012); Nina Bernstein, “Ill and in Pain, Detainee Dies in U.S. Hands,” New York Times, August 12, 2008, http://www.nytimes.com/2008/08/13/nyregion/13detain.html?_r=1(accessed March 22, 2012).
Medical care (women), Section 4.4, ICE Performance-Based National Detention Standards (PBNDS), 2011 Operations Manual, http://www.ice.gov/doclib/detention-standards/2011/medical_care_women.pdf (accessed March 22, 2012).
Human Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention, March 17, 2009, https://www.hrw.org/en/reports/2009/03/16/detained-and-dismissed-0 (accessed March 22, 2012).
Human Rights Watch interview with Jameela E., Virginia, June 2008.
Human Rights Watch interview with Lucia C., New Jersey, May 2008.
For example, from 1997 to 2000 the Vera Institute of Justice cooperated with the Immigration and Naturalization Service, a predecessor to ICE, to pilot an alternative to detention model called the Appearance Assistance Program. Through the AAP, individuals in immigration proceedings participated in a supervised release system wherein they regularly reported to a case manager and were provided with information on their legal rights and referrals to community resources. The Vera Institute reported that 91 percent of participants in the intensive supervision program appeared for all of their required hearings. Eileen Sullivan, et al., Vera Institute of Justice, “Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program,” August 1, 2000, http://www.vera.org/download?file=615/finalreport.pdf (accessed March 22, 2012), p. ii. A similar undertaking by Lutheran Immigration and Refugee Service focusing on asylum seekers and working with community shelters reported a 96 percent success rate. Esther Ebrahimian, “The Ullin 22: Shelters and Legal Service Providers Offer Viable Alternatives to Detention,” Detention Watch Network News, August/September 2000, p.8., quoted in “Statement from Faith Representatives Following April 30 Tour of the Wackenhut Detention Center,” House Judiciary Committee, Subcommittee on Immigration, May 3, 2001, http://www.loc.gov/law/find/hearings/pdf/00092836976.pdf (accessed March 22, 2012), p.85.
In Estelle v. Gamble, the landmark case defining custodial responsibility for medical care, the US Supreme Court held that the eighth amendment prohibits “deliberate indifference” on the part of detention authorities to a “serious medical need” of a prisoner in their custody. Estelle v. Gamble, 429 U.S. 97, 104 (1976).The US Court of Appeals for the Third Circuit has recognized access to elective, non-therapeutic abortions as a serious medical need. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 351 (3d Cir. 1987). While disagreeing with the finding of a serious medical need, the Eighth Circuit nonetheless invalidated a ban on transporting incarcerated women for abortion on the basis of its unreasonable restriction on a woman’s right to abortion under the fourteenth amendment. Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008) (holding that elective, nontherapeutic abortion is not a serious medical need under the eighth amendment, but banning transportation for prisoners seeking abortions constituted an unreasonable restriction on the fourteenth amendment right to seek an abortion). See also Doe v. Arpaio, 150 P.3d 1258 (Ariz. 2007) (cert denied, 128 S.Ct. 1704, March 24, 2008) (holding that requiring court order for transportation to abortion procedure was impermissible because it constrained the incarcerated woman’s constitutional right to terminate her pregnancy without a reasonable connection to a legitimate penological interest). But see Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004) (finding the requirement of a court order was reasonable where it was required for all elective procedures and the asserted state interest was inmate security and avoidance of liability). The obligation to ensure that incarceration does not force a woman to forfeit her constitutional right to abortion has also been interpreted to include ensuring access to funding for the procedure. Monmouth County, 834 F.3d at 352.
Federal Bureau of Prisons, US Department of Justice, “Program Statement: Birth Control, Pregnancy, Child Placement and Abortion,” No. 6070.05, August 6, 1996, sec. 551.23.
See e.g. Federal Bureau of Prisons, US Department of Justice, "Program Statement: Escorted Trips," No. 5538.05, October 6, 2008, sec. 11;U.S. Marshals Serv., Policy 9.1 (Restraining Devices) §§ (D)(3)(e), (h) (as amended in 2008); Cal. Penal Code § 5007.7 (Deering 2012); 730 Ill. Comp. Stat. Ann. 5/3-6-7 (Lexis 2011); Vt. Stat. Ann. tit. 28, § 801a (2012), N.Y. Correction Law § 611 (Consol. 2012); Tex. Gov’t. Code Ann. § 501.066 (Lexis 2012); N.M. Stat. Ann. § 33-1-4.2 (Michie 2012); Nev. Rev. Stat. 209.376 (2012), Haw. Rev. Stat. Ann. § 353-122 (Michie 2011); Idaho Code § 20-902 (Michie 2012);R.I. Gen. Laws § 42-56.3-3 (2012); Col. Rev. Stat. §17-1-113.7 (2011); Wash. Rev. Code Ann. § 70.48.500 (Lexis 2012); 61 Pa. Cons. Stat. Ann. § 5905 (Lexis 2012); and W. Va. Code § 25-1-16 (Michie 2011); An Act Amending Title 31, Arizona Revised Statutes, By Adding Chapter 5; Relating to Restraints on Pregnant Prisoners, 2012 Ariz. Sess. Laws 43(Lexis 2012).
Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009) (en banc).
See United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, rule 33. See also United Nations Committee against Torture, "Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, United States of America," CAT/C/USA/CO/2, July 25, 2006, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/432/25/PDF/G0643225.pdf?OpenElement (accessed March 22, 2012), para. 33; United Nations Human Rights Committee, "Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Conclusions of the Human Rights Committee, United States of America," CCPR/C/USA/CO/3/Rev.1, December 18, 2006, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/459/61/PDF/G0645961.pdf?OpenElement (accessed May 11, 2009), para. 33.