Last month, Immigration and Customs Enforcement (ICE) officially released a new version of its National Detention Standards (NDS), which govern the treatment of immigrant detainees held in almost 140 facilities in 44 states. These facilities include local and state jails and prisons — some operated by private prison companies — under contract with ICE. Despite being considered “civil detention,” almost 20 percent of ICE detainees are held in these jails and prisons, many of which are located in remote, rural locations.

ICE describes its revisions to the NDS as a set of “streamlined,” “updated, modernized standards.” In reality, the new NDS weakens critical protections and lowers oversight requirements, which could have disastrous consequences for the health and safety of thousands of people in immigration detention.

ICE’s own Civil Rights and Civil Liberties Office recently noted that ICE has “systematically provided inadequate medical and mental health care and oversight to immigration detainees in facilities throughout the U.S.” Yet, ICE’s new NDS has removed even basic, minimal safeguards necessary for adequate medical care. ICE no longer requires facilities governed by the NDS to maintain current accreditation with the National Commission on Correctional Health Care (NCCHC).

Also gone is the requirement that health assessments of detainees be performed according to national correctional standards. It’s important to remember that the journey to the U.S. is arduous — many people arrive in poor health, and at least 16 people died in ICE custody in 2018 and 2019. These health assessments, which already lack rigor, are a critical life-saving mechanism.

Although ICE has come under fire for inadequate medical and mental health staffing, the new NDS no longer requires health care and medical facilities at these jails to be under the direction of a licensed physician, but instead a “Health Services Administrator.” Congress has called for greater oversight of deaths in immigration detention, but ICE has now weakened reporting and record-keeping requirements in the event of a detainee’s death at these facilities.

The new NDS further weakens protections for immigrant detainees against the use of force and solitary confinement by officers. The prior version of the NDS barred officers from the use of “hog-tying, fetal restraints, tight restraints, improperly applied” against immigrant detainees — but this restriction is now eliminated. Facilities are no longer explicitly required to store use-of-force equipment securely. The new NDS broadens allowable reasons to place a detainee in solitary confinement and has removed specific protections for detainees in disciplinary proceedings facing solitary confinement. Medical staff at these facilities may now place detainees in medical segregation (solitary confinement) for refusing examination or treatment.

ICE has also eliminated standards that help to preserve detainees’ basic dignity. For example, ICE no longer requires that hold rooms have toilets with modesty panels, and removes the ratios for the number of toilets per detainee. ICE has removed language requiring that new contract facilities have outdoor recreation facilities, meaning that more detainees could be held for months or even years without time outdoors as they wait for their cases to be heard.

Under the new rules, immigrant detainees will face even greater hurdles in accessing lawyers and legal materials. The new NDS no longer requires facilities to guarantee non-governmental organizations access to detention facilities, and removes specific requirements for non-profits to provide legal education, monitoring, and visitation in these facilities. The new NDS eliminates a list of required immigration law materials that each facility must maintain in their law libraries, and limits indigent detainees to only five pieces of legal mail per week. Detainees may be subject to strip searches after an attorney visit.

The new NDS has improved some provisions for guaranteeing telephone access to detainees in order to find counsel, although they fall short of the requirements outlined in a settlement to Lyon v. ICE, a lawsuit brought by the ACLU in 2016. The new NDS has also added new provisions for the prevention and intervention of sexual abuse and assault in detention, accommodations for disabled detainees, and language access for people with limited English proficiency. These provisions, however, were already required by the Prison Rape Elimination Act, Section 504 of the Rehabilitation Act, and Title VI of the Civil Rights Act.

Detention standards provide the clearest set of requirements for the treatment of immigrants in detention, and contractually bind the local jails, prisons, and private prison operators that detain immigrants for ICE. ICE’s standards also serve as the metric for facility inspections and oversight by the Department of Homeland Security, which the DHS’s Office of Inspector General has already found to be dangerously flawed. These weakened standards also disregard Congress’s expectation that ICE implement the Performance Based National Detention Standards (PBNDS), a more rigorous set of standards, at all immigration detention facilities nationwide. By cutting these standards, ICE has set the stage for further danger and abuse of immigrant detainees.

The detention of immigrants is a cruel and harmful practice, which has only grown worse under the Trump administration. We cannot allow this administration to lock up more immigrants in a system that is already so broken. We must demand Congress call for a moratorium on detention, reduce the number of detention beds, cut funding for Trump’s massive deportation force, and reject all funding and proposals for any new plans to jail immigrants and families. Instead, Congress should shift funding and resources away from detention and toward community-based alternatives to detention and access to counsel.

Eunice Cho, Senior Staff Attorney, ACLU

In 2006, George Alvarez was charged with assaulting a prison guard while awaiting trial on public intoxication. He knew he didn’t do it — the guards actually jumped him — but the ten year mandatory minimum sentence at trial scared him so much that he pled guilty. Little did he know that the government had a video proving his innocence, but they buried it long enough for prosecutors to extract the plea first. George spent almost four years behind bars fighting for his innocence before finally being exonerated.

In 2015, Lavette Mayes got in a fight with her mother-in-law. She had no criminal history and had sustained injuries herself, yet a prosecutor charged her with aggravated assault, and a judge set her bail at $250,000. Unable to pay, she spent fourteen months in jail awaiting trial, unable to see or touch her children once. She lost her job. She developed health problems. Even after getting released on bond and downgraded to an ankle monitor, she struggled to resume her previous life due to the trauma she’d experienced while incarcerated. So instead of spending years fighting her case in failing health, she pled guilty to end the ordeal.

Just last year, the state of Georgia executed Ray Cromartie for a 1994 murder. The case against him was paper thin and Cromartie maintained his innocence until the end, but Georgia denied every request for DNA testing that could have set the record straight. A lesser-known fact about the case is that 20 years ago, Georgia prosecutors offered Cromartie a plea deal under which he could have been paroled after seven years and free by now. But Cromartie refused to admit guilt, and so the state retaliated by seeking the death penalty and ultimately killing him.

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These heartbreaking stories illustrate the damned if you do, damned if you don’t nature of criminal justice in America today. Succumb to coercive tactics like evidence suppression and pretrial detention like George and Lavette, and begrudgingly accept a conviction with lifetime consequences. Or assert your constitutional rights, like Ray, and face certain retribution.

This impossible choice we call plea bargaining takes place tens of thousands of times every day in America. It’s how over 95 percent of all state and federal convictions occur, with minority defendants receiving disproportionately worse offers. In fact, in 2012, the Supreme Court said that “plea bargaining . . . is not some adjunct to the criminal justice system; it is the criminal justice system.”

Criminal case dockets have become so bloated in the last fifty years as Americans have disastrously over-relied on the criminal legal system to solve all our problems. Pressure-packed, conveyor-belt plea bargaining has become the only release valve. The grossly divergent sentences offered to defendants who plead guilty versus those who don’t — often called the “trial penalty” — proves just how divorced from public safety, justice, or even rationality this system is.

Plea bargaining would be an acceptable way to resolve criminal cases if it were a fair fight between prosecution and defense. But it’s not. Since roughly the 1970s and the accompanying War on Drugs, prosecutors have been handed — and in many cases lobbied for — increasingly punitive tools to pressure defendants to take bad deals. These tools include:

• Pretrial detention to separate defendants from family, jobs, and community
• Mandatory minimums and sentence enhancements that ratchet up the trial penalty
• Lax discovery rules that allow prosecutors to hide favorable evidence during negotiations, as in George Alvarez’s case
• Virtually zero transparency requirements, which robs defendants, defense lawyers, and voters of the ability to scrutinize how the deals get done
• Supreme Court precedent that allows judges to rubber stamp the deals without asking the prosecutor a single question about how they used these tools. Instead, at a typical plea acceptance hearing, the judge asks the defendant whether they felt coerced, which is bit like asking the hostage if the kidnapper played fair while the hostage still has a gun to their head.

In other words, plea bargaining as practiced today has turned our criminal legal system into a cheap backroom shakedown. There is virtually no process, much less due process. Defendants’ lives are determined primarily by power dynamics and leverage, not facts and law. And it all occurs almost entirely behind closed doors, rather than in front of a judge, a jury, and the American public, as the Founders intended. 

To be fair, jury decisions aren’t perfect. Juries are made of people, and people are flawed, biased, and often vindictive. They often get the verdict and/or the sentence wrong. But they’re drawn from a reflective pool of the community; in all states but one, they have to return a unanimous verdict; they get to review all the evidence; and when they get it wrong, defendants can appeal. None of that is true of the typical plea bargain in America today.

We don’t need to eliminate all plea bargains or punish all prosecutors and judges to fix the problem. Indeed, if negotiated fairly, plea deals can be beneficial to all sides and promote justice and public safety. But we need to establish commonsense guidelines around the process, such that defendants who want to negotiate can do so on a level playing field. All we ask is a fair fight.

We see this as a critical step toward ending our mass incarceration crisis, so we’re embarking on a nationwide campaign — working with advocates, defenders, prosecutors, and directly impacted communities — to educate the public and establish these rules of the road. We’ll have more for you on this front. Stay tuned!

Somil Trivedi, Senior Staff Attorney, ACLU Criminal Law Reform Project

This post is co-authored by Simone Chriss, Staff Attorney, Southern Legal Counsel.

Jami Claire is a Navy veteran and a senior biological scientist at the University of Florida’s College of Veterinary Medicine, which has employed her for 32 years. She receives health insurance through the university, which is a component of the State of Florida.

Unlike the overwhelming majority of the state’s employees, Ms. Claire’s insurance fails to cover medical care that is necessary for her health and well-being. Ms. Claire is a transgender woman, and the state’s insurance plans explicitly exclude coverage for the gender-affirming care transgender people, like Ms. Claire, need. The state’s mandated policy targets Ms. Claire and other transgender state employees, essentially placing their lives at risk by denying them insurance for medically necessary – and often life-saving – gender-affirming care. 

This discriminatory treatment has no place in Florida or anywhere across the United States. That’s why the ACLU of Florida, Southern Legal Counsel, and pro bono attorney Eric Lindstrom are suing the Florida Department of Management Services, the University of Florida, and the Public Defender of the Second Judicial Circuit of Florida on behalf of two transgender state employees. 

The state’s mandated policy targets Ms. Claire and other transgender state employees, essentially placing their lives at risk by denying them insurance for medically necessary – and often life-saving – gender-affirming care. 

Too many people misunderstand gender-affirming health care to be optional. But, the reality is, it’s not optional. Gender-affirming care constitutes medically necessary and life-saving care for many transgender people. By denying this medically necessary care, the State violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. It also violates Title VII of the 1964 Civil Rights Act, which prohibits employers from treating an employee differently regarding that employee’s compensation, terms, conditions, or privileges of employment on the basis of sex.

Ms. Claire has paid significant out-of-pocket expenses for treatment that should have been covered by her state health plan. She would have paid even more were she not a United States veteran with access to limited gender-affirming care through the Department of Veterans Affairs. But because of the state’s exclusion, transgender employees like Ms. Claire are forced to forego gender-affirming care unless they can afford to pay for it themselves, an obstacle many people cannot overcome. In Ms. Claire’s case, she has already spent thousands of dollars for treatment that her doctors agree is absolutely necessary for her health. 

Many transgender people experience gender dysphoria, the medical term for incongruence between a person’s gender identity and their sex assigned at birth where such incongruence results in clinically significant distress. Left untreated, gender dysphoria places transgender people experiencing it at great risk for anxiety, depression, self-injury, and suicide. Sadly, the percentage of transgender people attempting suicide is nine times the national average. Although 4.6 percent of cisgender attempt suicide at some point in their lives, a staggering 41 percent of transgender people attempt suicide.   

As our client, Ms. Claire, stated, “People should understand that for some individuals, because of anti-trans bias, being transgender can come with a lifetime of challenges, and Florida’s exclusion for gender-affirming care has only made it worse. I have served my country and the State of Florida for decades, and I pay my taxes like everyone else. That’s part of what makes it so painful to know that despite everything I have done in public service, the State of Florida still treats me like a second-class citizen. I cannot live without access to healthcare, and no person should be forced to be without access simply because they are transgender. That's why I'm taking this to court.”Previously, public and private insurance companies excluded coverage for gender-affirming care, claiming incorrectly that such care was cosmetic or experimental. These claims are false. Today, private insurance programs and the majority of Fortune 500 companies routinely cover gender-affirming care. Moreover, more than 20 states explicitly cover gender-affirming care in their Medicaid plans. And 19 states and the District of Columbia prohibit excluding gender-affirming care in private insurance policies.

Opponents of transgender equality have argued supposedly excessive costs for gender-affirming care merit denying insurance coverage for transgender people.  But federal courts have rightly concluded this excuse lacks any merit. For example, a federal court recently ordered Wisconsin to fund gender-affirming care through Medicaid. The court found the cost for gender-affirming care amounted to less than one tenth of one percent of Wisconsin’s $3.9 billion share of the state Medicaid bill.  

Everyone wants to feel valued, empowered, and safe in their workplace. But a categorical exclusion that denies transgender employees coverage for medically necessary gender-affirming care devalues transgender employees’ contributions to the workplace. It also places the transgender employee at greater risk for harassment, and it undermines employers’ abilities to hire or retain talented transgender applicants. For transgender people like Dr. Billy Huff, Florida’s categorical exclusion caused him to leave Florida and move to Illinois. Unlike Florida, Illinois supports and covers his medically necessary, life-saving healthcare.  

“For some of us, having access to surgeries and medical technologies can quite literally save our lives,” Dr. Huff says.  

Florida’s unconstitutional exclusion harms more than its transgender employees. Florida’s arbitrary exclusion also injures state employees’ transgender family members, including the employees’ spouses, children, and other dependents. Parents and guardians have a duty to care for their children, yet Florida has created a harmful barrier that precludes the type of health-care coverage state employees need to provide for their transgender loved ones. 

This lawsuit does not ask for special treatment. It asks Florida to provide equal treatment to all its employees. 

Too many roadblocks exist across the United States that preclude transgender people from living authentically without significant risks of discrimination and violence. Our clients are fighting to ensure medical care is not one of those roadblocks, and to make Florida a safer and more welcoming place for transgender Floridians and their families. Our clients are fighting to save lives. We join them in their fight and ask Florida to provide equal and fair treatment to all of its employees.