By Hardeep “Dee” Sull
On May 14, 1930, Congress established the Bureau of Prisons within the Department of Justice (Publ. L. No. 71-218,46 Stat. 325). The Bureau was charged with “management and regulation of all Federal penal and correctional institutions.” Over the years, the Bureau has grown from 14 facilities to 122 federal prisons. In this system, an incarcerated person is called an inmate.
On the other hand, Immigration Customs Enforcement (ICE) has grown from the collection of import taxes and customs fees and has evolved into the civil enforcement of federal laws governing customs, trade, and immigration. ICE has over 400 offices in the United States and around the world with a budget that is well over $8 billion, and it continues growing. Individuals who are incarcerated under ICE are held under civil immigration detention and are referred to as detainees. Theoretically, since this is a civil detention, it is not intended to be punitive, but civil detention mimics criminal punishment.
Over time, the private prison industry has grown astronomically and is governed by two different standards when people are placed in their custody. Thus, custody looks different for ICE detainees and federal inmates. Private prisons are motivated by profits, which means cutting corners that will affect the inmates incarcerated and their families. In the process of cutting corners, it is always easier to cut corners with ICE detainees as opposed to federal inmates due to the lack of oversight. Additionally, the Bureau of Prisons is not applicable to ICE detention. While both systems are under federal authority, their standards of detention are very different.
Both systems have one thing in common, though, and that is detaining and incarcerating persons. Under federal law, the administration of custody in prisons is unequal. ICE detainees’ and federal inmates’ constitutional protections are derived from the Fifth Amendment, which provides protections while in custody. Federal inmates are also able to derive protections under the Eighth Amendment, which applies to persons convicted of criminal offenses and allows punishment as long as it is not cruel and unusual. However, the Fifth Amendment’s due process protections do not allow punishment at all. See Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”).
Inmates under federal marshal custody also have clear protections, and the standards for detention are contained in federal performance-based detention standards. ICE detention standards are independent of ICE, while others are within the agency and are not bound by law with any detention standards. In practical terms, this is problematic since it is harder to safeguard ICE detainees’ civil rights unless they sue. ICE detainees are not entitled to counsel, and, thus, their civil liberties can be easily violated and are hardly ever prosecuted. This ICE to abscond from their basic duties.
During the pandemic, ICE detainees were subjected to some of the most cruel and inhumane treatment when they were unable to access medical care and were subjected to COVID-19-infested pods. It was under the Fifth Amendment, Due Process Clause, and Equal Protection Clause that detainees were able to assert their basic needs predominantly with the assistance of pro bono counselors and organizations. On September 14, 2020, a whistleblower complaint was filed that revealed forced hysterectomies were performed on immigrant women without their consent in Georgia, while true medical emergencies were neglected.
Another phenomenon is family detention, which has been riddled with child abuse and lack of accountability. Mental health is a lost cause, and if an ICE detainee tries to complain, they are thrown in the “hole” (segregation). This cripples the ability of a detainee to seek proper care.
Another problematic issue is that counsel for ICE detainees have a difficult time in reaching their clients due to the lack of standards. While federal inmates can call their attorneys with little issue, ICE detainees are often deterred by the cost of the call or the officer’s control over each person. Attorneys for ICE detainees are often discouraged from visiting with their clients with tactics that include waiting for over an hour, no rooms available, or lack of personnel. The perils that an ICE detainee suffers are starkly different from an inmate in federal custody. Ensuring that detainees’ basic civil liberties are protected is a hardship while those in federal custody will have a slightly better edge., Only with advocacy, proper protocols, and accountability can we ensure detainees’ civil liberties.
About the author
Hardeep “Dee” Sull is the principal and founding managing partner of Sull and Associates, PLLC. Her firm primarily practices in global immigration, U.S. immigration and related collateral matters, government accountability, and civil rights issues. She practices before the United States District Court for the District of Nevada, the Ninth Circuit Court of Appeals, Immigration Court, and various federal agencies.She can be reached at change@sullglobal.com.
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This article was originally published in the Communiqué (Feb. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-feb-2024/.
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