Looking Back: Decarcerating Immigration Prisons as a Tool for Improved Health

Between 2008 and 2018, US Immigration and Customs Enforcement (ICE) apprehended more than two million noncitizens in the United States.¹ On any given day, ICE imprisons tens of thousands of such individuals in more than 200 jails or privately operated facilities under prisonlike conditions. Many imprisoned immigrants are held for years, with limited access to attorneys or other constitutional protections available under US criminal law. We refer to these facilities as “immigration prisons” because they have physical and legal characteristics of prisons and because immigrants experience them as imprisonment.

From the early days of the COVID-19 pandemic, academics, advocates, and imprisoned immigrants raised the alarm that immigration prisons could facilitate the vast spread of the virus, given the overcrowding, poor conditions of confinement, and grossly inadequate health care present in ICE’s prison system,² coupled with ICE’s historic unresponsiveness to violations of its own basic care standards.³ They also warned that ICE’s poor medical care could prove particularly dangerous during a pandemic, because many detained people have health conditions that create greater risk of poor COVID-19 outcomes.⁴ Although ICE eventually put mitigation efforts in place, the monthly COVID-19 case rate among imprisoned immigrants between April and August 2020 was 5.7 to 21.8 times higher than that of the US general population during the same period.⁵ The Washington Post editorial board labeled ICE “the superspreader agency.”⁶

ICE’s failure to prevent the spread of the virus ultimately proved deadly: on May 6, 2020, Carlos Escobar Mejia, a 57-year-old immigrant from El Salvador who had lived in the United States for 40 years, was the first known person to die of COVID-19 in ICE custody. Escobar Mejia’s death, like many that followed, was entirely preventable. In their clear, evidence-based commentary in AJPH in January 2021,⁷ a multidisciplinary team of researchers led by William D. Lopez emphasized that mass release would be the most effective way—perhaps the only way—to prevent the spread of COVID-19 infection and death in immigration prisons. The authors argued that ICE’s purported in-facility mitigation efforts were some of the least effective ways to control outbreaks in congregate settings and that ICE’s history of failing to “effectively implement [even] the most basic . . . controls”^7(p111) would limit the success of any such efforts. Indeed, medical researchers subsequently showed that ICE’s COVID-19 mitigation efforts significantly differed from Centers for Disease Control and Prevention guidelines regarding, for example, testing and isolation protocols.⁸

Release from detention, Lopez et al. argued, would be the safest and most humane solution to mitigate the spread of COVID-19 in immigration prisons. The authors cited guidelines for safe release into the community, which were developed by the Women’s Refugee Commission, Physicians for Human Rights, and Freedom for Immigrants. Importantly, Lopez et al. distinguished their call for mass release from selective releases (which can be “inconsistent, arbitrary, and discriminatory”) and deportation (which would be both “inhumane” and illegal if it circumvented established administrative legal processes).^7(p113)

Lopez et al. was frequently cited by public health experts, advocates for detained people, and, perhaps most visibly, the World Health Organization in its August 2021 special focus on COVID-19 in prisons as evidence that “SARS-CoV-2 transmission and other health issues continue to be a challenge in prisons,”^9(p8) despite mitigation measures.

CURRENT STATE OF KNOWLEDGE AND ACTION

The COVID-19 pandemic underscored the acute dangers of carceral settings such as immigration prisons, highlighting an urgent need for greater risk mitigation and decarceration more generally. Lopez et al. provided an important entry point for those ongoing conversations. Since their article’s publication at the end of 2020, several new peer-reviewed studies using multiple data sources have provided additional evidence of the extensive and systemic harms of immigration detention and how mass release could mitigate many of those harms in and outside the context of a pandemic. We now review some of this new work.

Recent research shows that ICE’s response to the pandemic may have increased rather than mitigated health harms, as predicted by Lopez et al. An analysis of medical expert declarations from detention facilities in six US states in 2020 and 2021 found evidence of medical mismanagement and neglect of detained individuals.¹⁰ Another study, analyzing ICE administrative data from 2018 to 2022, found a significant increase in ICE’s use of solitary confinement during the pandemic, despite the practice being so harmful to mental health that the United Nations defines confinement longer than 15 days as torture.¹¹ A third study examined ICE administrative data to analyze sexual assault allegations and found that more than 70% of immigration prisons reported sexual assault allegations during the study period, with allegations against facility staff significantly increasing by 134% from 2019 to 2021.¹²

Recent research using data collected directly from detained immigrants underscores how conditions of imprisonment manifested in deleterious health consequences, even outside the context of the pandemic. An analysis of health survey data from detained immigrants in California found individual and cumulative associations between conditions of confinement and poor physical and mental health.¹ In another study using interview data from formerly detained immigrants in New York, immigrants perceived detention as “harmful by design” to their health and dignity.¹³ That this health-harming system continues is especially problematic given strong evidence that imprisonment is unnecessary to accomplish its stated legal purpose of ensuring compliance with immigration legal proceedings.¹⁴

Recent research has also substantiated claims that the health harms of detention could be mitigated through release: in a panel study of individuals detained in California and then released into the community, participants reported fewer physical, psychological, and overall symptoms of stress, as well as improved general health after release from detention compared with during imprisonment.¹⁵ These results provide promising evidence of the benefits of release.

ACTION TO MITIGATE HARM

Ongoing and future health research about immigration prisons can inform and be informed by efforts outside academia by detained people and their advocates. We now briefly highlight several ongoing efforts to expose ICE’s inability to effectively control the pandemic in its facilities and push ICE to implement better mitigation efforts, which should include testing, vaccine access, and mass release.

In April 2020, a class of imprisoned immigrants at the largest ICE facility in California, the Adelanto ICE Processing Center, filed a lawsuit demanding that ICE release enough people to permit six-foot social distancing at all times, including when sleeping.¹⁶ The district court initially ordered a substantial population reduction, but ICE appealed that order and won an interim ruling preventing it from going into effect. Several months later, a massive outbreak occurred at the facility: 66 people—58 imprisoned immigrants and eight staff members—tested positive in one week. Shortly afterward, in October 2020, the court of appeals ruled in the detained peoples’ favor. The resulting release of several hundred people constituted the single largest population reduction at any immigration prison during the pandemic. The court’s order remains in effect as of February 2023.

In March 2020, a group of prison civil rights lawyers filed a lawsuit demanding that ICE identify medically vulnerable imprisoned immigrants in its custody and then consider those individuals for release in light of their unique vulnerability during the pandemic. In the following months, the district court issued several orders that led to the release of medically vulnerable immigrants across the country. An appellate court reversed those orders in October 2021 but only after many releases occurred.¹⁷ Numerous similar cases were filed throughout the country.

There have been other advocacy efforts as well, for example, attempts to push state and local health departments to take more aggressive steps to ensure that ICE pursued proper mitigation and vaccination efforts. Taken together, these efforts sought to save lives in the short term as part of longer-term goals to end the use of imprisonment in immigration legal proceedings altogether.

CONCLUSIONS

The population detained by ICE fell during the COVID-19 pandemic (Figure 1) to the lowest levels in 20 years, in large part because of the closure of the border to people seeking asylum, court-ordered mass releases such as those described herein, and interruptions to ICE field operations that limited new apprehensions. However, although the Biden administration has reduced funding for ICE detention beds,¹⁸ beginning in 2021, ICE ramped up its operations once again, and the detained population has held steady between 20 000 and 30 000 people per day. This is largely driven by Customs and Border Protection arrests (Figure 1), which are likely to continue as the Biden administration expands Trump era programs limiting the admission of asylum seekers at the border.¹⁹

FIGURE 1—

Number of People in ICE Custody by Arresting Agency: TRAC, United States, May 4, 2019–March 12, 2023

Note. CBP = Customs and Border Protection; ICE = US Immigration and Customs Enforcement; TRAC = Transactional Records Access Clearinghouse.

Source. Authors’ tabulations of data from TRAC, https://trac.syr.edu/immigration/quickfacts/detention.html.

Advocates continue to make the case for decreased funding, and ultimately abolition, of the immigration prison system based on the extensive abuses in facilities and robust empirical evidence establishing that incarcerating immigrants is not necessary to ensure the functioning of immigration laws. In the interim, human rights attorneys continue to advocate improved facility conditions, such as decreasing reliance on solitary confinement, improving access to legal representation, and other reforms.

A robust body of research makes clear that immigration imprisonment is undeniably harmful—even deadly—for detained people. Importantly, health harms are not evenly distributed: recent research provides evidence that Black immigrants are overrepresented in punitive or harmful conditions in ICE facilities.²⁰ Additional research is needed to inform efforts to best protect the health of historically marginalized and vulnerable groups.

Public health professionals can continue to partner with legal professionals and community advocates to document the health harms of immigration prisons and call for a system that is responsive to scientific evidence and upholds human rights principles. This can include a radical reenvisioning of a structure designed to punish rather than heal.

The growing body of evidence is unequivocal: imprisoning immigrants is harmful to health and unnecessary for the operation of immigration legal proceedings. As long as mass incarceration remains a key strategy of immigration law enforcement, imprisoned people will continue to experience the health harms resulting from it. Congress can legislate an end to imprisonment in immigration legal proceedings. Indeed, many countries simply do not operate immigration prisons, and the United States itself did not do so for long periods of its history, including for several decades after World War II. The dismantling of this harmful system is critical to protecting health in and beyond the context of a global pandemic.