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ICE Warms Up to Detainees
The National Law Journal
John Morton makes no apology for locking up 380,000 people a year.
They haven't been charged with crimes. Rather, they're immigrants, confined to a sprawling network of more than 270 jails and prisons for weeks or months while proceedings to determine whether they'll be allowed to remain in the country are pending.
"This isn't a question of whether or not we will detain people. We will detain people, and we will detain them on a grand scale," said Morton, who is head of Immigration and Customs Enforcement within the Department of Homeland Security. "It's a necessary power."
The key question for Morton, whose 19,000-employee agency has faced stinging criticism over conditions in the detention facilities including substandard medical care and limited access to counsel, is "how we detain people -- and in my view, the system is run haphazardly."
A career federal lawyer with experience in the U.S. Attorney's Office for the Eastern District of Virginia and the Department of Justice, Morton, 43, came to the job nine months ago vowing to give the detention system "a very, very hard look, essentially an overhaul."
His goal, he said in a lengthy interview in his spacious 11th floor office at ICE's headquarters in Southwest Washington, D.C., is to create a detention program managed directly by agency employees, not contracted out to public and private jails. "My whole vision for the system is to reduce the number of facilities that we have, to have those facilities be designed and run solely from the immigration enforcement perspective, and to have strong, direct federal oversight," he said.
Immigration advocates are encouraged by Morton's proposals, but say the plans don't go far enough. "He's building a better mousetrap," said Andrea Black, network coordinator of Washington-based advocacy coalition Detention Watch Network. "We welcome the initial steps. However, they've got a lot of work to do, and we're very concerned they're not going to be able to enact fundamental reforms needed to truly transform the system."
Recent watchdog and media reports detail many of the ongoing problems inside the facilities. Last week, the American Bar Association released a comprehensive report urging major changes to the entire immigration legal system. The ABA described the current detention system as "costly, extremely difficult to manage, and overburdened."
One of the most acute problems is medical care. According to the American Civil Liberties Union, there have been 104 in-custody deaths since 2003. The group says that deficient medical care is believed to be the leading cause of death and is the No. 1 complaint it receives from detainees.
Newspapers including The New York Times have reported shocking accounts of individual detainees denied treatment, such a 52-year-old tailor from Guinea. He died in 2007 after suffering a skull fracture in the Elizabeth Detention Center in New Jersey and being locked in an isolation cell for more than 13 hours.
The reports have apparently hit home. When Morton was asked to describe his vision for a model detention facility, his immediate response was, "First-rate, uniform medical care."
This year, ICE will solicit bids to build at least two new centers designed specifically for housing detainees -- one in Texas, the other in the Northeast. Morton envisions a combination of dormitories and cells, an outdoor exercise area, good food and easy access for families and lawyers.
He thinks it can even be done in a budget-neutral manner. "The present system is incredibly expensive," he said. "We can actually save some money with these new facilities over the long run ... and provide a better standard of care."
In the meantime, the existing system is under strain. Since 1996, the number of noncitizens held each day by ICE has increased threefold. On any given day, an average of 32,000 people are in ICE custody.
Some of those held are legal residents who have previously been convicted of a crime -- in some cases, even a misdemeanor. Others are felons who go straight to ICE custody after serving prison sentences. Still others are undocumented aliens or asylum seekers or people who overstayed their visas.
Regardless, all are detained by ICE for a civil, not a criminal, offense. The only reason people are kept in custody, said Morton, is because "They'll either run away and wouldn't show up for their detention hearing, or because they're a danger to the community."
That is an assertion that advocates dispute. "There will always be people who need to be detained, but that number is a lot smaller than the number of people they hold," said Denyse Sabagh, a Washington-based partner at Duane Morris who heads the firm's immigration practice. "They really should look at who they're putting in detention. Some are lawful permanent residents who have been in the country for many years, with roots and family. Why do those people need to be in jail?"
Mary Meg McCarthy, executive director of the Heartland Alliance National Immigrant Justice Center in Chicago, applauded December 2009 ICE guidelines that allow more asylum seekers to be released on parole but said "the crux of reform is how things will improve on the local level."
One of the top concerns for her group and others is detainee access to counsel. According to last week's ABA report, 84 percent of detainees have no lawyer to guide them through the complex removal process. "The need is so huge. They beg you, 'Please help me get me a lawyer,'" said Karina Wilkinson, co-founder of the Middlesex County Coalition for Immigrant Rights, who is not a lawyer but works with immigrants in detention centers in New Jersey.
Wilkinson said her group has received letters from detainees that detail the difficulties of mounting a pro se defense from a county jail, including limited access to law libraries, a lack of basic supplies such a paper and envelopes, difficulty making copies and mail delays of up to two weeks.
Having a lawyer appears to be the single most significant factor in determining the outcome of a case. According to Human Rights Watch, asylum seekers who were represented by counsel were successful 46 percent of the time, compared to 16 percent without lawyers.
Many detainees can't afford a lawyer, and they have no right to one at the government's expense. And because so many ICE facilities are located in remote areas, pro bono services are limited. For example, McCarthy points to an ICE facility her group services in Boone County, Ky., about 300 miles from Chicago. "It's really hard to say to a pro bono attorney, 'Will you travel five hours to meet with a client?'"
At the same time, said Jan Pederson of the Pederson Immigration Law Group in Washington, "It's very hard to represent detained aliens without interviewing or speaking to them."
Morton said he is sympathetic, "As a lawyer, I'm a big believer in people having counsel. ... I will do everything in my power to make sure the facilities we have promote access to counsel." In the long term, he said, that means locating new ICE facilities "near major cities that have lawyers and pro bono counsel and charitable groups that can provide assistance."
As for now, he pledged that ICE will make sure detainees have access to working telephones to make free calls to consulates and attorneys. He also supports aid groups coming into facilities to give "Know your rights" presentations to detainees.
Still, advocates report that conditions vary tremendously by facility. For example, Romy Lerner, an attorney with the Florida Immigrant Advocacy Center, said the Broward County detention facility has no dedicated space for attorneys to meet confidentially with detainees. Many of her clients are victims of domestic violence or have been persecuted, which makes privacy essential. "I won't meet with clients with other attorneys or detainees in the room," she said.
And Eleni Wolfe-Roubatis, supervising attorney for the National Immigrant Justice Center's Detention Project, said a facility in Georgia doesn't allow phone calls. "From jail to jail, it's very different," she said.
Some facilities throw detainees in with the general prison population, while others keep them separate. Some treat them like criminal inmates. Others, like the Carver County Jail in Minnesota, "have been nothing but respectful to me and my client," said Maple Grove, Minn., solo practitioner Roger Taylor, who said the guards have "gone out their way" to take care of his client, an asylum seeker from Cameroon.
Morton said he is well aware of the inconsistencies in the system. "We've been too dependent on contractors," he said. "If you went to one of our major facilities, there would be no federal official on top. Contractors would run the entire operation."
He's working to end that and make the system more uniform. ICE is currently hiring 50 officials who will be stationed at its largest facilities, which house 80 percent of detainees. The largest ICE detention centers are located in Eloy, Ariz.; Lumpkin, Ga.; Pearsall, Texas; West Lancaster, Calif.; and Raymondville, Texas.
"Their sole job will be to think about detention operations that we run there. Are the people getting three meals a day? Is the place clean? Is there good medical care?" Morton said. "I don't want to do that by contract. I want to do that by direct government supervision."
Morton continued, "We have grand plans, but they're going to take time, and they have to be done in the context of an ongoing system. ... Several years from now, my hope is we'll look back and you won't recognize any of the facilities we're in."