Immigration and Customs Enforcement (ICE) is notorious for committing rampant unconstitutional and inhumane abuses in its detention system — something advocates, communities, and watchdog investigations have condemned for years. Public oversight of ICE detention is about to become even harder, further eroding accountability and endangering the health and safety of more than 50,000 people in ICE custody every day. That’s because the National Archives and Records Administration (NARA) recently gave a green light to ICE to destroy numerous types of records — including detention and civil rights complaint records from the first year of the Trump administration.

Today, the ACLU is filing a Freedom of Information Act (FOIA) request to obtain records at serious risk of destruction so that they may be preserved on behalf of the public. The American Immigration Council, National Immigrant Justice Center, and the National Immigration Law Center are filing nearly identical FOIA requests as well. Our shared purpose reflects a pillar of government accountability: Government agencies should not be allowed to destroy the paper trail of their incompetence and wrongdoing.

Specifically, we are seeking detention-related records from ICE that are scheduled to be deleted after short retention periods of only three to seven years. These records cover a wide range of ICE operations and activities, including ICE’s own on-site monitoring of detention facilities, the placement of detainees in solitary confinement, and complaints reported to the Department of Homeland Security’s (DHS) Office of Civil Rights and Civil Liberties. Alarmingly, the weekly monitoring reports of detention facilities — the same places infamous for their dehumanizing, grossly inadequate, and dangerous conditions — could already be on the chopping block if they date to the earliest days of the Trump administration’s brutal anti-immigrant agenda.

Given their important role documenting decisions by government officials and offering proof of the harm that people suffer in detention, the destruction of these records in such a short period of time will further obscure important evidence. Three years is even shorter than the statute of limitations for some legal claims available to victims of abuse in detention, as well as the full duration of many FOIA claims. Destroying relevant ICE records on such short timetables could foreclose the chance of pursuing justice and accountability.

This development could not come at a worse time. Last December, ICE announced new facility standards that lower oversight requirements and weaken what paltry protections exist for people held in detention. Long before that announcement, ICE was already well known for conditions so atrocious they sparked hunger strikes among asylum seekers, instances of sexual assault committed by ICE facility employees, and substandard medical care so bad that it killed people. Even the DHS Civil Rights and Civil Liberties Office, whose own records are among those at risk of deletion, admitted that ICE has “systematically provided inadequate medical and mental health care and oversight to immigration detainees in facilities throughout the U.S.”

The Department of Homeland Security’s Office of Inspector General has also admitted that ICE’s own oversight system has failed to “ensure adequate oversight or systemic improvements in detention conditions, with some deficiencies remaining unaddressed for years.” As we warned several years ago, when ICE’s initial plans for the destruction of detention records first came to light, allowing ICE to operate with even less scrutiny will result in worse detention conditions, more violations of people’s constitutional rights, and more people subjected to life-threatening circumstances.

The ICE detention system needs further transparency, not even more cover as it commits human rights violations with impunity. Our FOIA request is intended to ensure that records critical to this oversight and accountability do not disappear at ICE’s convenience. But ultimately, we hope that Congress is watching — because it will take lawmakers’ intervention to fully protect ICE detention records in a systematic, lasting manner from an agency bent on brutalizing people in its custody and then getting away with it.

Kate Oh, Policy Counsel, ACLU National Political Advocacy Department,
& Eunice Cho, Senior Staff Attorney, ACLU

It’s a long-established fact that the United States is the largest incarcerator in the world. Over two million people are behind bars, roughly a quarter of whom are simply awaiting trial. Millions more are under some form of state supervision, such as parole or probation. 

Many players have a hand in our mass incarceration crisis, but there’s one actor with almost unlimited power to determine who ends up locked up and who goes free — the power to charge (or not), to divert people from incarceration (or not), to plea bargain (or not). That person is the prosecutor. 

For decades, prosecutors have used their virtually unchecked discretion to mold a deeply unfair system that relies on incarceration, perpetuates poverty, and foments racial inequalities. Prosecutors are deeply complicit in the following realities: 

• Despite the fact that crime rates have steeply declined in the last quarter century, incarceration continues to climb.
• One out of every three Black boys born today can expect to go to prison in his lifetime, compared to one out of 17 white boys. 
• Women are now the fastest-growing population in jails and prisons, and the imprisonment rate for Black women is about twice the rate for white women.
• An estimated half of the people in prison have some indicator of a mental health disorder. 
• States engage in behaviors that prevent fair and transparent trials, such as withholding evidence, predatory plea bargaining, and racist jury selection.

We too often believe that these realities are simply the result of clear laws, and that prosecutors are just doing their jobs. But prosecutors make choices every day that determine which laws are enforced and against whom, and how much punishment they carry. For too long, they have made choices that perpetuate mass incarceration rather than tear it down. 

Prosecutors don’t have to be the bad guys…

Prosecutors not only have the power to ruin lives — they have the power to save them. As we have seen in a handful of places around the country, prosecutors committed to reform can use their discretion to choose liberty over incarceration and rehabilitation over punishment.  

A transformational prosecutor is one with a fundamentally new approach to their work; a prosecutor who is committed to using their power to end mass incarceration and rectify racial disparities that for too long have defined our criminal legal system.

A transformed prosecutorial system will be fully transparent and accountable. Prosecutors will strive for diversion over incarceration, and will conduct any plea bargaining fairly. These are key elements of prosecutorial reform that we’ll be fighting for throughout 2020 and beyond — until America is no longer known for its incarceration crisis but for rebuilding a broken criminal legal system. 

…but first, here’s what they need to fix:

Transparency

Prosecutors’ offices are often black boxes, with little information publicly available about their policies and practices. It’s how prosecutors often get away with misconduct. Accountability and even basic citizen and voter education are virtually impossible without transparency. Prosecutors are typically granted qualified or even absolute immunity, under the belief that this is required to do their job.

Across the country, many prosecutors are beginning to change their ways by voluntarily disclosing information about their offices. They have realized that transparency benefits everyone, including prosecutors themselves. It helps the public understand what’s happening in prosecutors’ offices — who’s being charged and for what, whether sentences are being applied fairly, and what kind of outcomes are the result. And for prosecutors, transparency is a way to build community trust, which is essential to their jobs. 

Still, too many prosecutors are still trying to shut their office doors. The ACLU is fighting back through litigation and legislation, filing FOIA requests where necessary, writing and advocating for state transparency bills, and working with prosecutors to bring their work out of the black box and into the light.

Read more about transparency:

• Unlocking the Black Box: How the Prosecutorial Transparency Act Will Empower Communities and Help End Mass Incarceration
• We’re Suing Maricopa County Attorney Bill Montgomery to Release the Records He’s Hiding From Arizonans
• Jeff Sessions Is Fighting Tennessee’s Effort to Make Prosecution More Fair
• Chicago’s Top Prosecutor Walks the Walk on Transparency
• Voters Can’t Elect the Right Prosecutors if These Elected Officials’ Records Aren’t Made Public

Litigation:

• P.E.O.P.L.E. v. Rackaukas
• McDonough v. Smith
• ACLU of Arizona v. Montgomery
• Singleton v. Cannizzaro

Advocacy:

• Arizona
• Connecticut (passed)
• Hawaii
• Oregon (passed)
• Utah

Accountability

Prosecutors exist without any meaningful oversight whatsoever. Judge-made legal doctrines, like absolute immunity, shield them from civil rights suits by the wrongfully targeted. Legislatures routinely approve their annual budgets with little to no inquiry into efficiency. Citizen oversight boards are non-existent. And their internal ethics mechanism is notoriously toothless. In other words, no one polices prosecutors — they don’t even police themselves. The injustice of our criminal legal system continues unabated because of this notorious lack of oversight. 

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But most prosecutors are not appointed, they are elected. A majority of voters across the country — from red and blue states alike — strongly prefer prosecutors who are committed to increasing transparency and holding their own accountable. 

Our campaign will seek to close these gaps in accountability and empower regular people to better control the criminal legal system that is executed in their name.

Read more about accountability:

• Is a Florida Chief Judge Taking Cues From a Prosecutor?
• New Orleans’ District Attorney Has a Warped Vision of Justice
• New Orleans District Attorney Leon Cannizzaro Breaks the Law to Enforce It. We’re Holding Him Accountable.

Litigation:

• Singleton v. Cannizzaro
• McDonough v. Smith

Diversion

Even if a defendant is able to avoid jail time for a particular charge, a criminal record comes with life-changing collateral consequences. It makes getting a job more difficult, and sometimes outright impossible. It disqualifies you from many housing options. And the experience of being incarcerated can leave lifelong emotional scars that hinder your ability to reenter society as a returning citizen. 

Once again, it’s prosecutors who have the power to decide who must deal with these harmful consequences. Instead of sending people to prison, prosecutors can instead opt for diversion, which allows people to avoid the consequences of a criminal record by rerouting them toward community-based treatment and other services. 

Diversion is one of a prosecutor’s most impactful decarceration methods, yet it’s vastly underutilized. And when prosecutors do opt for diversion, the application is often unequal and racially biased. White defendants are more likely to receive prosecutorial diversion than Black, Latinx, Asian and Native American defendants. That means that white people who come into contact with our criminal legal system are better able to find jobs, access housing, and reenter society rehabilitated. 

People who are better served outside the criminal legal system should never get pulled into it. Communities and emergency services should instead redirect them toward community-based treatment and other services for help. But the reality is, the criminal system includes many people who shouldn’t be there. Every system actor must adopt early screening and diversion options to find these people and help them get out of jails and prisons and into diversion services instead. Prosecutors, armed with vast discretion, are well-positioned to adopt these practices. 

Read more about diversion:

• Kansas Prosecutors Are Locking People Up Rather Than Offering — Or Even Telling Them About — Diversion

Litigation:

• Kansas Crossroads Foundation v. Markle

Plea Bargains

By the numbers, we don’t have a criminal legal system. We have a plea extraction system. Prosecutors resolve over 90 percent of cases through plea “bargains,” often taking advantage of coercive tools like pretrial detention and mandatory minimums. In most cases, prosecutors are able to ratchet up defendants’ trial exposure so high that any rational person — likely sitting in jail, separated from their job and family — would plead out to end the ordeal. This needs to stop.

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Plea bargaining is also a major factor fueling racial disparities in the system. Black defendants are less likely to receive any leniency in plea bargaining for having a clean record. That’s because prosecutors have wide discretion in setting plea terms and, like all of us, bring bias to the table.

Prosecutors often use coercive tactics to plea bargain, like evidence suppression and pretrial detention, which leave defendants feeling like they have no choice but to begrudgingly accept convictions with lifetime consequences. 

And of course, like other prosecutorial powers, plea bargaining largely takes place behind closed doors. We aim to expose the practice of plea bargaining and establish legal guidelines that make it a fair and constitutional fight.

Read more about plea bargaining:

• Coercive Plea Bargaining Has Poisoned the Criminal Justice System. It’s Time to Suck the Venom Out.
• The Power of the Prosecutor: A Personal Account

Our vision for transforming prosecution

Prosecutors don’t have to be oppressive actors in our criminal legal system. Just as they have the power to harm, they have the power to heal. Many prosecutors are already taking steps in the right direction, and it’s due largely to voters, activists, and litigators who’ve made clear that it’s time for reform. 

More on transformational prosecutors:

• Chicago’s Top Prosecutor Walks the Walk on Transparency
• San Francisco’s D.A. Is Clearing Thousands of Marijuana Convictions. Others Around the Country Should Do the Same.
• Progress Is Occurring on Prosecutorial Reform, Despite Tuesday’s Setbacks in California
• Why Run for Locally Elected Prosecutor?