As the COVID-19 pandemic decimates the world, one population is particularly at risk: people who are incarcerated. They are at the mercy of the state, and almost always held in conditions where the coronavirus is likely to spread: close quarters with no possibility of social distancing, no or few toiletries available, and forced to wash, live, and eat within feet or even inches of each other

There is no denying that coronavirus is already ravaging our jails, prisons, and detention centers. At least four ICE detainees in New Jersey and one in Arizona have already tested positive for COVID-19 — and that's without widespread testing of people in DHS custody.

On Tuesday, a federal judge in the Middle District of Pennsylvania ordered the 11 petitioners in Thakker v. Doll to be released.

The good


All of the petitioners in the case have underlying medication conditions which make them high-risk for serious complications from the novel coronavirus. Several of them began showing symptoms of COVID-19 while incarcerated; none of them were quarantined, isolated, or treated.

Officials at the Department of Homeland Security and ICE, of course, showed their true colors and vigorously fought to continue to incarcerate these immigrants, who are at a high risk of dying or having serious, lasting damage done to their bodies.

But Judge John Jones III, a W appointee, pulled no punches in his rebuke of the DHS position, noting that he could "see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments," and ordering the petitioners released.

The virus is almost certainly already inside of our jails and detention centers, even in places where positive test results are still forthcoming.

Petitioners face the inexorable progression of a global pandemic creeping across our nation—a pandemic to which they are particularly vulnerable due to age and underlying medical conditions. At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons—we have before us declarations that portions of the Facilities have been put under ineffective quarantines due to the presence of symptoms similar to COVID-19 among the inmate population. Indeed, we also have reports that a correctional officer at Pike has already tested positive for COVID-19.

And because of the conditions within our detention centers and jails, there's little to nothing that can be done to stop the spread.

This virus spares no demographic or race and is ruthless in its assault. The precautions being adopted to stop it should apply equally, if not more so, to the most vulnerable among us. Petitioners have shown that adequate measures are not in place and cannot be taken to protect them from COVID-19 in the detention facilities, and that catastrophic results may ensue, both to Petitioners and to the communities surrounding the Facilities.

We are living in a brave new world right now, and the government has to change with the times and learn to protect people in its care — even if it has to be dragged there, kicking and screaming.

The global COVID-19 pandemic and the ensuing public health crisis now faced by American society have forced us all to find new ways of operating that prevent virus transmission to the greatest extent possible. We expect no less of ICE. We note that ICE has a plethora of means other than physical detention at their disposal by which they may monitor civil detainees and ensure that they are present at removal proceedings, including remote monitoring and routine check-ins. Physical detention itself will place a burden on community healthcare systems and will needlessly endanger Petitioners, prison employees, and the greater community. We cannot see the rational basis of such a risk.

The end of Judge Jones' opinion is really a thing of beauty that deserves to be read in full:

In times such as these, we must acknowledge that the status quo of a mere few weeks ago no longer applies. Our world has been altered with lightning speed, and the results are both unprecedented and ghastly. We now face a global pandemic in which the actions of each individual can have a drastic impact on an entire community. The choices we now make must reflect this new reality.

Respondents' Facilities are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result. Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners' plight. And so we will act.

This isn't the only case where civil rights and immigration attorneys are working overtime to ensure their clients' safety. Federal judges in New York, California, and Massachusetts have also ordered ICE to release detainees with pre-existing medical conditions. And Eunice Cho, senior staff attorney at the ACLU's National Prison Project, has said that the civil rights organization is "planning on filing additional cases, that's for sure."

The bad

Our jails and detention centers are already at a point of crisis.

Even medical experts for the Department of Homeland Security itself recognizes the unique danger this coronavirus poses to people being held in immigration detention. Dr. Scott Allen and Dr. Josiah Rich wrote a letter to Congress, warning of the high likelihood of a "tinderbox scenario" where our detention centers are entirely full of people who are sick, all at the same time. The doctors also called the DHS camps of detainees in Mexico — which SCOTUS allowed to remain operational just last month — "a tinderbox that cannot be ignored in the national strategy to slow the spread of infection."

The ugly

As of March 21, ICE was holding more than 38,000 people — the vast majority of whom have not been accused of a crime — in its concentration camps and county jails around the country. When asked whether it would be releasing people due to concerns about safety during the coronavirus pandemic, an ICE spokesman said the agency had made "no change" to its policies.

True to form, ICE apparently doesn't even want the people it's holding at its concentration camps to know of the best ways to keep themselves safe. As Judge Jones in Pennsylvania noted,

[I]t does not even seem that ICE is providing detainees with proper information on how they can combat the virus on their own. Troublingly, some facilities seem to have shut off detainee access to news outlets, thereby preventing the detention facility's population from informing themselves on best practices to prevent transmission.

Perhaps someone at the agency should consider Judge Jones' words

We note that ICE has a plethora of means other than physical detention at their disposal by which they may monitor civil detainees and ensure that they are present at removal proceedings, including remote monitoring and routine check-ins. Physical detention itself will place a burden on community healthcare systems and will needlessly endanger Petitioners, prison employees, and the greater community. We cannot see the rational basis of such a risk.

We can't see any basis for that, either.

Release them.


Here's Judge Jones' opinion in full. It's a great read.

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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