Many of us are scared for our families and friends right now because of COVID-19. Every day we learn new information about the virus. Today we know that all of us, even the young and healthy, are at risk of this disease and serious complications from it. We cope and try to make ourselves safer, whether by social distancing, washing our hands more, or eating nutrition-packed meals.

But people in government custody — including the 37,000 immigrants held in immigration jails and prisons throughout the country, and thousands more held near the border — don’t have these options.  They are being held in deadly conditions. That is why in addition to calling on public officials to downsize prisons and jails in the criminal legal system, the ACLU is calling on the government to utilize all available options to reduce the number of people in immigration detention. Ultimately, no one, whether they are a citizen or an immigrant, should be forced to live in conditions that imperil their lives during this public health crisis.

Immigrants in government custody are forced to live, sleep, and eat together. Some spend nearly all day in large rooms filled with closely packed bunk beds, or just long concrete benches. Others live in dank two-person cells, sometimes with minimal ventilation. Dozens of people share toilets and showers, sometimes with no divider and without disinfection between use. Social distancing is not an option. With everything we’ve learned from the Centers for Disease Control, we know these conditions are dangerous, even deadly.

For immigrants in detention, the tools for basic hygiene aren’t available either. Many people don’t have access to soap, let alone hand sanitizer. In Border Patrol stations, many immigrants are detained in overcrowded cells without ready access to sinks and showers. Detained people have described feeling like “sitting ducks, waiting to be infected.” One detained man in New Jersey said he and others were on a hunger strike to try to obtain soap and toilet paper — and that guards reportedly said, “Well, you’re going to have to die of something.”

It can be hard if not impossible to get medical attention, including access to previously prescribed medications. For example, it is not uncommon for detained immigrants to be given Tylenol for serious illnesses, including HIV and pneumonia. It’s no wonder that since October, 10 people have died in ICE custody. And over the past two years, at least seven children have died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether.

The ACLU has long said that the vast majority of people in immigration jails are being detained unnecessarily. They are being held for processing at the border, or are awaiting their immigration hearings or another administrative action — yet they have completely lost their liberty. COVID-19 lays bare the injustice, and the often life-or-death stakes, of their detention. As public health experts have already stated, “social distancing through release is necessary to slow transmission of infection.” ICE and CBP must immediately start reducing the number of people in detention, starting with the most vulnerable, to prevent the continued spread of COVID-19 to both people in immigration jails, and the staff who work in them.

We are far from alone in raising the alarm bells on this. There is an “imminent risk to the health and safety of immigrant detainees,” according to physicians who have investigated immigration prisons on behalf of the Department of Homeland Security (DHS) and are experts in the field of detention health. They’ve warned that once an outbreak occurs in immigration detention, it will spread quickly and have a devastating impact.

Mass incarceration of immigrants also risks the health and safety of the people who work in these facilities, as well as the communities they return home to. Last week, ICE told Congress it would “utilize alternatives to detention, as appropriate,” but an ICE official later reportedly clarified, “there has been no announcement related to releasing individuals that are currently detained.”

We don’t know how serious the government is about utilizing alternatives. But we do know that options for reducing detention are already on the table. As we pointed out in our lawsuit,
Dawson v. Asher, DHS could use its parole authority to release people on medical grounds, including people whom the CDC and other medical experts have identified are particularly at risk: those over 50 and those who have an underlying medical condition, such as lung or heart disease.
DHS has a range of options to release people from detention: on bond, humanitarian parole, or an alternative-to-detention program. Even a former ICE chief, John Sandweg, called on ICE to utilize its options, warning that an outbreak will “spread like wildfire.” Many people in ICE jails and prisons have family or sponsors in the U.S., with whom they could live and, if necessary, quarantine safely. Likewise, people in CBP custody could be released to family, community sponsors, or shelters with proper precautions in place

There has perhaps never been a more urgent time for ICE and CBP to reduce the number of people they’re holding in detention — this is a health crisis and prevention and containment is key. Already, at least two staff members and one detained individual at immigration jails in New Jersey and Texas have tested positive for COVID-19, potentially putting at risk hundreds of detained people and staff.

Our nation’s collective health depends on the Trump administration following the advice of doctors, scientists and public health experts. These experts are telling us that social distancing is necessary to curb COVID-19. They are also telling us that access to adequate healthcare is critical. None of these are options for people trapped in immigration detention, and for the officers and staff who have to report to work. We know this is wrong. ICE and CBP must do the responsible thing: reduce the number of people in detention, starting with the most vulnerable, to keep them safe from COVID-19 before it is too late.

Naureen Shah, Senior Advocacy and Policy Counsel, ACLU,
& Andrea Flores, Deputy Director of Policy, ACLU's Equality Division

To ensure elections proceed and eligible Americans can vote, any federal legislative package addressing the impact of COVID-19 on our elections must include an immediate, substantial infusion of federal funding and federal requirements for no-excuse mail-in absentee voting and early in-person voting. While the coronavirus pandemic should not be a political issue, with presidential primaries and the general election coming up, it could soon directly impact our politics. It is simply not an option for Congress to fail to act on these basic issues to protect American elections while the pandemic is ongoing. 
 
For many, the safest way to vote will be to vote by mail. However, there are approximately 17 states that currently do not allow no-excuse absentee voting by mail. In almost all cases, this absentee voting limitation is codified in state law and in some cases within the states’ constitutions, making it very difficult, if not impossible, to expand the ability to vote by mail in time to help reduce the impact of COVID-19. This is especially true in light of the inability of legislatures to convene at all, given the pandemic. 
 
For example, in Texas it is only possible to vote by mail if you are over 65, disabled, will be out of the United States on Election Day and during the early vote period, or are confined to jail but otherwise still eligible to vote. The language about being disabled is further restrictive — the voter must have “a sickness or physical condition that prevents the voter from appearing at the polling place on election day.” Arguably, this language would permit only individuals actually sick with the coronavirus to vote by mail. All these restrictions are set in Texas law, and given that Texas’ legislature isn’t scheduled to meet in 2020, these laws would be very difficult to modify in time for upcoming elections. During the current pandemic, it is nearly impossible to imagine how the Texas legislature can efficiently and safely convene an emergency legislative session.  
 
For other states, the limitations on absentee voting are set within the state constitutions, making the process for changes even more cumbersome. For example, in Massachusetts, current law only allows voters to cast absentee ballots by mail if they are out of town or unable to get to the polls because of a physical disability or religious restrictions. To change this may require an amendment to the state constitution, which must pass two successive legislatures and be approved by the voters through a ballot initiative — making it an impossible change before the 2020 general election. 
 
Texas and Massachusetts are just two prime examples of why a federal mandate is necessary — to guarantee states can overcome hurdles posed by COVID-19, institute the necessary changes, and do so rapidly. Congress must act swiftly and aggressively so state and local election officials can begin preparing now to address these challenges. And without considerable and immediate funding from Congress — the ACLU has recommended $3 billion — a federal mandate alone will not be enough to achieve no-excuse absentee mail-in voting or an extended early vote period in time for this election. In order to safeguard our health and our democracy, there is no time to wait to save our elections. No one should have to choose between protecting their health and exercising their right to vote.
 

Sonia Gill, Senior Legislative Counsel, ACLU,
& Sarah Brannon, Managing Attorney, ACLU Voting Rights Project

Two years ago, the ACLU set a clear goal: push Greyhound to refuse Customs and Border Protection (CBP) officers access to their buses to conduct warrantless searches. As part of the Trump administration’s immigration crackdown, CBP officers were targeting bus passengers around the country, boarding their buses to racially profile, harass, and too often, detain people who they suspected of being undocumented. Of course, you can’t tell someone’s immigration status by how they look or sound — this practice is unconstitutional and blatantly racist. By pushing aggressively with the help of our membership and partners, we won: CBP changed its policy to reflect the correct legal position, and Greyhound came out publicly to say it would no longer consent to the agency boarding its buses. This is the story of how we secured this victory, and what’s next in our fight to protect bus passengers around the country from racial profiling and harrassment from CBP.
 
For decades now, warrantless searches by CBP have been a problem for people who live and work within 100 miles of an international border or coastline. As CBP has grown into the largest federal law enforcement agency in the country, it has been able to expand its authority, unchecked by any accountability measures. The result is a highly militarized federal police force that is infamous for racially profiling and harrassing communities of color who live in the 100-mile border zone. Some of this harrassment took the form of random and warrantless searches at bus stations and on private bus lines, such as Greyhound. 
 
After Trump’s election in 2016, our affiliate partners reported that these random, warrantless searches of Greyhound buses had become more common. The ACLU went to Greyhound directly, explaining that the Fourth Amendment allows Greyhound to prevent agents from boarding buses and questioning passengers without a warrant or the company’s consent. But for two years, Greyhound maintained that even as a private bus carrier, they had no authority to refuse consent.
 
The ACLU mobilized, putting together a petition signed by more than 111,000 of our supporters. Across the country, we partnered with local organizations and deployed a variety of tactics. We filed lawsuits on behalf of people, including Mr. Sosa and Mr. El Shieky, who had been targeted by CBP’s racial profiling on buses and at stations in Washington. We worked with volunteers in upstate New York and Spokane, Washington to hand out Know Your Rights cards to passengers and remind them of their right to remain silent, regardless of status. We organized to pass local ordinances restricting CBP from bus boarding areas. We called on State Attorneys General offices to investigate the impact Greyhound’s decision not to deny consent had on consumers. We confronted Greyhound again and again.
 
On February 14, a CBP memo that agreed with the ACLU’s longstanding legal position was leaked to the AP. It stated that private bus carriers could refuse to consent to warrantless searches, even within 100 miles of an international border or coastline.
 
Once the CBP memo leaked, Greyhound changed its position. Just a week later, the company announced that it would refuse CBP access to its buses. After the ACLU pushed for more specifics on how this new policy would be implemented, the company delivered. Greyhound specified that it would advise its employees to refuse consent to CBP on buses and in stations and would place stickers on its buses stating this position. Taking their new policy a step further, they announced that they would also send a letter to DHS, clearly stating their new position. These policy changes made Greyhound an important model for other bus companies. Once the company announced its policy change, Concord Coach followed suit.
 
The work at the ACLU is not done. On March 3, Peter Pan Bus Lines, a major Northeast Carrier, announced that they would not be following Greyhound’s lead. In stating their position, the company explained that because their bus routes are concentrated in the Northeast, CBP searches are uncommon. But major Northeast cities such as Boston, New York, and Philadelphia, are all within the 100-mile border zone. By allowing warrantless searches on their buses, Peter Pan is exposing its riders to racial profiling and arbitrary searches and detentions. Peter Pan’s customers and employees deserve the same protections that Greyhound and Concord Coach have implemented.
 
The work to fight for systemic change is never simple — it takes multiple tactics and efforts, and many, many people pushing together in the same direction. Winning often takes years, as this campaign did. But in Spokane, where CBP officers were boarding buses daily, local activists report that they haven’t been there in weeks. In other words, people, regardless of status, can travel freely without fear of interrogation.
 
We know that social justice work is never static. We will remain vigilant and hold Greyhound and CBP accountable for lasting change in our communities. That is what real change looks like.

Andrea Flores, Deputy Director of Policy, Equality Division, ACLU,
& Enoka Herat, Police Practices and Immigration Counsel, ACLU of Washington