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Resolution on civil detention standards approved by @ABAesq

August 8, 2012

Re-posted from the American Bar Association Journal

The ABA House of Delegates approved a robust resolution on civil detention standards.  Most illegal aliens detained by the Department of Homeland Security should not be held in jails or jail-like settings, according to new civil immigration detention standards adopted Monday by the ABA House of Delegates.

“The Standards outline how a truly civil immigration detention system should look and operate, with the goal of offering a framework for reforming the current immigration detention system, particularly in areas of concern to the ABA.  The standards call for detention as a last resort, and for using the least restrictive means necessary to ensure court appearances and, if so ordered, removal. They recognize that the immigrant detention system is highly privatized, and place responsibility on DHS for upholding the standards, strictly overseeing its contract facilities, and making major decisions on classification, release and reassignment of persons in its legal custody.   They also provide for strong external oversight by government watchdog entities, the press, and respected non-governmental organizations,” says Don Kerwin who took the lead for the Commission on the resolution draft.

The standards are designed to help DHS as it transitions to a system that does not primarily rely on jail-like facilities, according to an introduction to the standards in Resolution 102. “Civil detention facilities might be closely analogized to ‘secure’ nursing homes, residential treatment facilities, domestic violence shelters, or in-patient psychiatric treatment facilities,” the document says. More restrictive measures would be needed, however, for residents that pose a danger to themselves or others, the introduction says.

The standards also recognize that access to legal services is critical. “Facilities should allow for residents to seek and receive legal advice and medical and psycho-social care; conduct legal research and otherwise participate in the preparation of their cases; wash and wear their own clothes; and practice their faith(s),” the introduction says.

Kerwin added that “the Standards arise, in part, from the ABA’s extensive advocacy, monitoring, and reporting on immigration detention, as well as its direct service programs with men and women in detention.  They were developed over many months by the ABA Commission on Immigration, with the assistance of an expert Advisory Group that included a former INS Commissioner, the Commissioner of the New York City Department of Correction, and other experts from the corrections, medical, academic, and other fields.  The law firm of Crowell & Moring LLP provided pro bono assistance in this process.  Several ABA Sections and bar associations co-sponsored the standards, and the ABA’s House of Delegates adopted them on behalf of the roughly 400,000 member association.  Many of the more obvious standards highlight the need for reform: unfortunately it cannot be assumed that ‘outdoor recreation’ in detention facilities will actually take place out-of-doors, that restraints won’t be used when medically contraindicated, that telephones will actually work, or that attorney-client meetings or correspondence will be private.”

You can download the Resolution here.

Additionally, the ABA Commission on Immigration also hosted a panel on incarceration and race (moderated by Margaret Stock). A recap of the panel can be found here.

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