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January 15, 2020
Just in time for the holidays, on December 19, 2019, ICE released revisions to its National Detention Standards for Non-Dedicated Facilities. “Non-Dedicated” in this context means that these standards govern the 140 or so (ICE uses the word “approximately” three times in its introduction to refer to the numbers of facilities to which these standards apply) facilities that house immigrants alongside other populations (typically with non-immigrant criminal charges or convictions) in local and state facilities. Nearly 20% of immigrant detainees are held in such facilities.
Given the widespread reporting of unsanitary, dangerous, and abusive conditions in ICE detention more generally, one reads with hope that the NDS 2019 will be “addressing topics such as medical care, segregation, disability access, sexual assault and abuse prevention and intervention, and language access.” And indeed it does address these topics.
As the ACLU maintains in its analysis released this week of these standards, however, the way that some of these topics are addressed “weakens critical protections and lowers oversight requirements.”
For example, medical standards are one area where previous requirements seem to have been made more vague and more lax:
ICE’s new NDS has removed even basic, minimal safeguards necessary for adequate medical care. ICE no longer requires facilities governed by the NDS to maintain current accreditation with the National Commission on Correctional Health Care (NCCHC).
Also gone is the requirement that health assessments of detainees be performed according to national correctional standards. It’s important to remember that the journey to the U.S. is arduous — many people arrive in poor health, and at least 16 people died in ICE custody in 2018 and 2019. These health assessments, which already lack rigor, are a critical life-saving mechanism.
Although ICE has come under fire for inadequate medical and mental health staffing, the new NDS no longer requires health care and medical facilities at these jails to be under the direction of a licensed physician, but instead a “Health Services Administrator.”
Likewise, some of the most barbaric practices – presumably named specifically in the earlier standards in order to remove all doubt as to their prohibition – are now no longer mentioned and have been replaced with much vaguer and more permissive language. Again, quoting from the ACLU commentary:
The new NDS further weakens protections for immigrant detainees against the use of force and solitary confinement by officers. The prior version of the NDS barred officers from the use of “hog-tying, fetal restraints, tight restraints, improperly applied” against immigrant detainees — but this restriction is now eliminated.
Even as the policy seems more permissive on what force may be employed against immigrants held in detention, it also expands opportunities to place them in solitary confinement – for any variety of reasons.
The new NDS broadens allowable reasons to place a detainee in solitary confinement and has removed specific protections for detainees in disciplinary proceedings facing solitary confinement. Medical staff at these facilities may now place detainees in medical segregation (solitary confinement) for refusing examination or treatment.
One especially jarring change that has the potential to reduce information about conditions and independent oversight are the rules regarding visitation. Where the prior version required non-dedicated facilities to allow press and NGO visits, such visits are now merely permitted.
These are only a few of the changes ACLU has compiled in a 9-page summary document listing all substantive changes between the original NDS 2000 and the new NDS 2019, released last month. The solution the ACLU offers –the one most likely to actually improve conditions for the thousands of those currently held in immigrant detention facility across the United States – is to reiterate their call for a moratorium on immigrant detention. Short of that worthy call, we would add that the need for local and state oversight becomes even more pressing when the federal authority charged with establishing national standards weakens them so dramatically.