The United States is now fully subject to the rampaging effects of Covid-19. Whether the Trump Administration admits it or not is no longer relevant. The virus is unmoved by pleas to focus on the economy or on Trump’s re-election ambitions. In the midst of this void of leadership, a public health hot spot is about to erupt. The Trump Administration is holding tens of thousands of foreign nationals in detention centers around the country. The people inside are already getting sick, and some are dying. They are very aware of the precarious situation they are in, and that we are choosing to keep them there, unnecessarily, despite our knowledge that doing so is a death sentence for them and for us. In the midst of this, ICE is detaining even more people unnecessarily, which exacerbates the public health crisis we are already fully immersed in.
Advocates across the country have called for and filed lawsuits seeking the release of detainees. The rationale is two fold: it is the right thing to do, and it may prevent an even worse public health crisis than the one we are already in. Medical experts have been exceedingly clear that holding people in close confinement, without access to appropriate medical care, or even basic hygiene supplies like soap and toilet paper is a recipe for disaster.
Tens of thousands of immigrants are being detained in the United States who have committed no crimes. Women and children are detained in euphemistically named Family Detention Centers for the offense of deigning to seek asylum or because they have filed suit asking that we actually follow our own laws. The only possible legal justification for holding someone in detention rather than letting them bond out is that the person is either a danger to the community or a flight risk. The babies who sat on my lap as I provided legal assistance to their mothers are ipso facto neither. Nor are their mothers. They are detained in facilities run by private prison contractors who have little sense of responsibility for the fate of their charges. I know because they took great pleasure in the arbitrary rules they create for advocates seeking to assist their charges — telling me what clothing I could and could not wear into the center, and confiscating the stickers I hoped to use to distract the children while their mothers told me horrific histories of unspeakable violence.
We should release immigrants from detention because it is the right thing to do, and because it might help prevent an even worse public health crisis. But if more policy rationales are needed, remember that even people in immigration detention who have committed crimes have already served their criminal sentence. The state and federal criminal justice systems already decided what charges and punishment are appropriate, have already sentenced these individuals and they have already served their sentence or been acquitted. The decision by ICE to detain a person is independent from, and comes after whatever punishment your law enforcement and criminal justice system determined was appropriated. The decision to detain any immigrant is unnecessary under the best of circumstances and now it is exceptionally dangerous to them, and to you.
If we do not release these people from detention, I fear that we will wake to headlines like those from Spain,where law enforcement found several dead and abandoned persons in a retirement home. Even Congress knows that immigrants matter to the economy, that immigration enforcement is sometimes inappropriate – for example when we prioritize having witnesses feel comfortable reporting crime or having victims report domestic violence or human trafficking. We need to act now to release these individuals from unnecessary and costly immigration detention, before the cost is too high and it is too late.
Professor Dina Haynes teaches Constitutional Law, Immigration Law, Refugee, and Asylum Law, and the Law Addressing Human Trafficking. She serves as the director of the New England Law Boston’s Immigration Law concentration.