Detention Is No Place for Infants, Children, and Families

Just before she turned a month old, baby Darla* was released from the Berks family detention facility in Leesport, Pennsylvania. Darla and her mother had been in the custody of DHS since she was just 11 days old. And although Darla will now have the chance to lift her head for the first time in freedom, her mother won't be able to breast-feed her. The combination of malnutrition and the stress of incarceration left her unable to lactate.

Darla is one of the youngest people to be subjected to immigration detention, but the basic outlines of her story are all too common. Her pregnant mother traveled north from Guatemala to escape domestic violence and was apprehended by Customs and Border Protection just over a week after giving birth to Darla. For days, the mother says she and her newborn were detained in DHS hieleras, or "icebox" cells, and forced to sleep in extremely cold conditions with only an aluminum blanket. The two were then transferred to the custody of Immigration and Customs Enforcement and detained at Berks.

Simply put, detention is no place for infants and children. But the Obama administration's decision eight months ago to massively expand the detention of immigrant families with children means that more newborns, toddlers, and young children will suffer imprisonment for no good reason inside dangerous detention facilities.

Sexual abuse, for example, is far too common and detained women are uniquely vulnerable. In the immigration detention system as a whole, the Government Accountability Office found in 2013 that detained individuals face severe challenges in reporting sexual abuse. Although DHS promulgated regulations to stop the sexual abuse of people in its custody in accordance with the Prison Rape Elimination Act (PREA) last year, there is no deadline for implementation at 143 facilities that hold almost half of the people in ICE detention.

Despite being touted by ICE as a model civil detention facility, and one that agreed to implement PREA, Berks is no exception. Just over two weeks ago, a district attorney filed criminal charges against a guard at the facility for seven counts of institutional sexual assault.

The victim is a 20-year-old woman who fled from Honduras with her 3-year-old son after the boy's father beat her severely enough to cause a miscarriage, raped her in front of her son, and threatened her with torture and death. When she was sent to Berks, the guard gave favors to her and her son, and told her he could help with her immigration case. When he initiated sex with her, she did not feel comfortable saying no.

Because a guard can exercise control over so much of a detained person's daily life – including when she can eat, when she can sleep, and when she can be punished – notions of consent have little meaning in this context. That is why PREA treats any sexual contact by a guard as a form of sexual abuse, regardless of apparent consent.

But authorities at Berks apparently did not understand this rule. Rather than educate the women at the facility about their rights under PREA, the facility staff announced new, victim-blaming rules against wearing tight or revealing clothing after the assault. The new rules even restrict what women and girls can wear to bed. Ultimately, the blame for this grossly inappropriate response must fall on ICE for failing to ensure that the facility staff understood and complied with PREA's mandate.

Moreover, this sexual abuse may not have even happened if the Obama administration didn't pursue such a cruel, unnecessary, and unconstitutional policy of arbitrarily locking up families who are fleeing violence in Central America. History shows us that imprisoning families limits access to due process, harms the physical and mental health of parents and children, and undermines the family structure by stripping parents of their authority.

Instead of incarcerating thousands of mothers and children, DHS should be investing in effective, humane, and far less costly alternatives to detention.

*Darla is a pseudonym for the child identified in this post.

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Anonymous

Everything the US does should be effective and humane, and so yes, detention centers must be held to this standard. I believe that ought to be what the ACLU campaigns for, and not the elimination of detention. In the end, what are we supposed to do with people who enter our country illegally? Not detain them before deciding how to handle them? I hope the author of this article can come up with a really good alternative that is not, in essence, allowing any and all illegal immigration! If he is against detention, he had better have a really good alternative.

On the topic of cruel and unusual punishment, it would be great if the ACLU would actually focus on things that are more relevant to US citizens. Things like embarrassing forms of execution (e.g. electrocuting US citizens to death), or embarrassing forms of incarceration (e.g. horrible prison conditions). Cruel and unusual punishment is definitely unconstitutional, and for many good reasons. One of them is so that the United States will always have high standards.

Anonymous

I disagree with the ACLU on everything in this article. The women in this article illegally entered the United States and thus committed a crime. She had other options, such as staying in her home country or staying in the numerous other countries which she passed through to get to the United States. The article notes that she fled because of domestic violence. She could have simply moved to another part of her home country rather than leaving her home country. She is fleeing abuse in Guatemala, yet she could have stayed in Mexico rather than continuing on to the United States. The sexual abuse, while unethical, is not illegal because she did not say no. I know that under the law rape exists even if a person does not say no, but I am against affirmative consent laws.

Anonymous

Institutional sexual assault is a crime both federally and under PA law. As the author points out the concept of consent is not the same within a penal structure where the guard is the one having the sexual relationship with someone under his charge. It is a strict liability offense much like a 40 year old man having sex with a 10 year old. That 10 year old may never had said no, but we understand as a society that the 10 year old was in no position to understand the situation and could never properly consent.

It is not unlawful to come into this country to seek asylum. It is a perfectly acceptable means of migrating here to the US and it has been recognized as such under our law. As for being able to flee domestic violence in Guatemala by simply moving the commenter needs to do a little more research and the option of receiving protection in Mexico is pretty laughable.

These women and children could be placed on supervision and there are alternatives such as electronic bracelet monitoring. Imprisoning children is in no way acceptable.

Anonymous

American Civil Liberties Union, emphasis on American, was founded to protect the liberties of the Americans in the US. Not illegals unlawfully entering it. This agencies priorities have become misplaced and detrimental to US citizens. As far as this current ruse being used by Guatamalan women to illegally enter the US and manipulate the emotions of people such as the writer of this article, these are planned tactics and disgraceful. I suggest you read Senator Sessions article from today detailing the OBama's Administrations dismantling of US immigration Law and how people from Mexico, South, and Central America have contrived various tactics to take advantage of how this Administration has made every US citizen unsafe in our own country. I agree that a detention center is no place for any child and that these child and adults should be returned to their native countries asap for their protection but more so for every US citizens protection. ACLU, do what you were intended to do and stand up for US citizens civil liberties which are being trampled upon by the OBama administration daily! http://www.breitbart.com/big-government/2015/02/16/sen-sessions-releases-lengthy-timeline-of-obama-administrations-dismantling-of-immigration-law/

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