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Conditions at the NWDC: Background, Methodology, & Human Rights Standards

March 27, 2020

This report is part of a series regarding Human Rights Conditions at the Northwest Detention Center in Tacoma, Washington, based on ongoing research efforts and released to highlight initial findings in the urgent context of the COVID-19 pandemic.

Contents:

Introduction
Background, Methodology and Human Rights Standards
Sanitation of Food and Laundry
Allegations of Medical Neglect
• Use of Solitary Confinement [forthcoming]
• Against Organizing by Detained People [forthcoming]
• Transparency and Oversight [forthcoming]

← Previous section: Introduction

Background

The Northwest Detention Center (NWDC, now officially named “Northwest ICE Processing Center”) first opened as an immigrant detention center on Tacoma’s tideflats in 2004. While the City of Tacoma initially welcomed the facility, and the State of Washington helped procure financing for its construction,[1] escalating hunger strikes, protests, and deaths inside and near the NWDC have led to growing criticism of the facility in recent years. In 2019, Mayor Victoria Woodards penned a letter to GEO noting “breaches of health, safety, civil rights and human dignity in the detention center”;[2] in 2018, Washington Gov. Jay Inslee wrote John Kelly, Director of DHS, that he was “deeply troubled” about the “safety and well-being of detainees at the NWDC,”[3] and in 2019, Senator Cantwell and Rep. Adam Smith denounced “a broader atmosphere of abuse and mistreatment exists at the NWDC” in a letter to DHS.[4] As noted above, the Washington State Office of the Attorney General is currently suing GEO Group for wage violations due to its practice of paying detained people $1/day to work in the kitchen, on the cleaning crew, or in other jobs necessary to maintain NWDC operations.[5] Other litigation has targeted the facility for acts of physical violence against hunger strikers,[6] and for failing to protect medically vulnerable detained people from COVID-19.[7]

GEO and ICE have steadfastly denied any wrongdoing at the NWDC. James Black, GEO Group’s regional vice president, touted the facility as providing “high-quality, culturally responsive services in a safe, secure, and humane environment” in 2017.[8] Representatives of ICE have insisted that the NWDC is a model for other facilities in the nation. In September 2019, for example, ICE Enforcement and Removal Operations Field Office Director for the Pacific Northwest Nathalie Asher welcomed journalists on a tour of the facility, showing off its apparent orderliness and boasting that “with 80 medical professionals assigned to the Northwest ICE Processing Center… detainees have some of the best care in the country when compared to similar facilities.”[9]

In light of this gulf between public perception and facility promises, there is a clear need for a comprehensive, independent analysis of conditions at the facility, yet no such effort has been undertaken. As far as we are aware, independent investigators have never been granted access to the NWDC. ICE does conduct its own inspections of the facility, but multiple studies, including those by the Department of Homeland Security’s Office of the Inspector General (OIG), have concluded these are “useless” in monitoring or improving compliance.[10] In 2018, Gov. Jay Inslee repeatedly wrote to the Department of Homeland Security to request “an immediate, independent inspection of the health and safety conditions at the Northwest Detention Center,” but apparently no such inspection has taken place to date.[11] Sen. Maria Cantwell and Rep. Adam Smith, in an October 2019 letter to the OIG, expressed their understanding that that office had conducted an investigation of the NWDC in FY 2019,[12] but to date no such investigation has been published. State and local authorities have even less ability to conduct independent investigations or oversight, as most lack any significant jurisdictional authority over the facility.[13]

As a private facility, the NWDC is not subject to FOIA or other public disclosure laws that would enable transparency to the public, rendering external investigations (including this one) extremely difficult.

Methodology

In order to examine the rights implications of civil detention in the NWDC, since 2017 UWCHR researchers have sought information through multiple means. First, we filed FOIA requests to the Department of Homeland Security for copies of documentation that would shed light on conditions within the facility. Unfortunately, to date, not one of our ten NWDC-related FOIA requests has yielded documents through the regular FOIA process: in some cases, our requests are still outstanding; in others, the agency declined to provide the documents by claiming that their release would violate detained people’s privacy, even though we asked that all personally-identifiable information be redacted; in still others, the agency appears to have lost our request, having confirmed its initial receipt but then failing to respond to multiple communications inquiring as to its status.[14] As a result, UWCHR filed suit against the Department of Homeland Security in September 2018 for failure to adhere to the requirements of FOIA in a series of requests, including some related to the NWDC. While this litigation remains pending, to date it has produced thousands of pages of records, many of which we draw on in this report.

While we rely heavily on the agency’s own records, we have also sought to complement and corroborate them by gathering information from other sources. We spoke to several former detained people, family members, and community advocates from multiple organizations, and relied upon other expressions of detained people’s concerns, such as statements released during hunger strikes and materials shared with the advocacy organization La Resistencia.

We considered attempting to speak to individuals who were currently detained, but decided against it. There have been allegations of retaliation against detained people who spoke out about inadequate conditions at the NWDC. For example, in 2018, after having spoken to the Seattle Weekly about medical neglect, Saja Tunkara was abruptly deported despite his pending legal case for adjustment of status due to his marriage to a U.S. citizen. The Department of Homeland Security’s Office of Civil Rights and Civil Liberties has also received reports of individuals being threatened by NWDC guards after complaining about conditions there. In light of this, and given our inability to offer any protection to detained people who might share critical accounts with us, we chose not to speak to currently-detained inmates at NWDC.

We also draw on records shared with us by the former Human Rights Clinic in the UW School of Law, which has advocated for years on behalf of people detained at the NWDC, and by La Resistencia, a grassroots organization founded in 2014 to support the rights of those detained at the NWDC. La Resistencia granted us access to its archive of materials collected between 2014 and 2018, including letters from and interviews with detained people, and statements by organized detained people including hunger strikers, excerpts from which we include in our reporting as a way of capturing the words and ideas of people in detention.

Lastly, we also consulted records produced by DHS’ own inspections of the NWDC, available on ICE’s website; reports published by academic researchers and human rights organizations; and media reports about the facility. UWCHR director Angelina Godoy participated in a tour of NWDC and conversation with staff in August 2017. In January 2020, we requested an opportunity to interview NWDC staff as part of this research; while we were told this would not be possible, ICE’s community relations officer has provided written answers to many of our questions.

We intend this series of reports as a presentation of the findings from our research to date, rather than a truly comprehensive assessment of conditions at the NWDC. This distinction is important, because we are aware of human rights concerns at the NWDC that are not reflected in the records we have reviewed to date, or which the records received do not enable us to fully investigate. Without access to the facility itself and to the health records of people detained there, it is impossible to produce a comprehensive assessment—but it is possible to share findings that underscore areas of concern. These areas include insufficient sanitation, medical neglect, the overuse of solitary confinement, retaliation against hunger strikers, and lack of transparency. This first report focuses on sanitation at the NWDC.

Studies of abuses in immigrant detention

While it is impossible to corroborate individual claims of abuse at NWDC without access to the facility, it is imperative to take accounts of abusive conditions seriously, particularly as research has documented troubling conditions in many other facilities used for the civil detention of immigrants by both ICE and Customs and Border Protection (CBP) in the United States. Human rights organizations, journalists, and academic researchers have documented grave abuses in private and public facilities alike, including dangerously inadequate medical care;[15] insufficient nutrition;[16] lack of access to showers, clean clothes, and basic hygiene items including soap or toothbrushes;[17] physical abuse, including sexual abuse, of detained people;[18] and other concerns.

Inquiries conducted by DHS’ Office of the Inspector General (OIG) are particularly noteworthy, because these are the only published studies conducted by researchers who had access to detention facilities and their records. For example, on July 2, 2019, the OIG produced a Management Alert titled “DHS Needs to Address Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley,” calling for immediate attention to dangerous conditions in the specific facilities visited. This report documented severe overcrowding, inadequate food leading to digestive and other health problems, and insufficient access to clean clothes and showers.[19] A second OIG report published June 3, 2019, “Concerns About ICE Detainee Treatment and Care at Four Detention Facilities,” based on unannounced visits to public and private facilities in California, Louisiana, New Jersey, and Colorado, documented the overly restrictive use of segregation; inadequate medical care; food safety issues including—in all four facilities inspected—the serving of expired food; and lack of access to clean clothing and adequate hygiene items.[20] Many of these abuses echo complaints by people detained at the NWDC.

Human rights standards in detention

ICE’s detention standards for “Dedicated Facilities” like the Northwest Detention Center are laid out in the agency’s Performance-Based National Detention Standards 2011 (PBNDS 2011), which was last revised in 2016.[21] While thorough, these represent guidelines, not laws. The agency says it expects facilities like the NWDC to adhere to these standards, and conducts periodic internal inspections to monitor compliance; but there is no legal requirement that facilities comply, nor any uniformly-applied agency sanctions for noncompliance.

Within and beyond the United States, many human rights laws and norms stipulate standards for the treatment of detained persons. Key principles from these, relevant to the specific concerns we have documented at the NWDC, include the following:

Civil detention should be used as a last resort

The NWDC is a facility used exclusively for the civil (or administrative) detention of immigrants. While some individuals held there may have been convicted of crimes in the past, they served any resulting sentence in jails or prisons, not in immigration detention. ICE only has authority to hold people for civil violations of immigration law.[22]

Under international human rights law, civil (or administrative) detention should be a measure of last resort; it should never be punitive; and alternatives to detention should be employed whenever possible.[23] The Inter-American Commission on Human Rights has criticized the United States for its use of mandatory civil detention and lack of alternatives, writing that the mandatory detention of immigrants is a “disproportionate measure in many if not the majority of cases,”[24] and that it threatens due process.

Right to due process

The United States government has argued that the detention of immigrants does not require adherence to the U.S. Constitution’s due process clause because unlike criminal detention, civil detention is not supposed to be punitive. Yet the notion that the indefinite deprivation of liberty for immigrants is not punitive rests on a legal fiction. The matter was most recently raised before the U.S. Supreme Court in Jennings v. Rodriguez in 2018, although the court did not rule on this specific question, sending it back to lower courts to decide. As the ACLU wrote at the time, “Nowhere else in the U.S. legal system do we let the government take people’s freedom away for months or years without a hearing before a judge who determines whether their incarceration is necessary.”[25]

Under international human rights standards, such a practice is clearly unacceptable. The detention of immigrants without due process contravenes the minimum international standards of due process guaranteed by Articles 9 and 10 of the Universal Declaration of Human Rights, and Article 9 of the International Covenant on Civil and Political Rights (ICCPR).[26] Relatedly, the UN Working Group on Arbitrary Detention has held that it is an international human right to appear before an impartial and independent tribunal immediately after detention in order to challenge its legality, a right routinely flouted in contemporary U.S. practice because the immigration court and its review body are not an independent or impartial tribunal.[27]

Right to be free from cruel, inhuman or degrading treatment

Under international human rights standards which are also echoed in U.S. law, all detained people have the right to be detained in conditions that are safe and respectful of their dignity. For example, the International Covenant on Civil and Political Rights establishes, in Article 7, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,” and in Article 10, paragraph 1, that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The Eighth Amendment to the United States Constitution, similarly, prohibits “cruel and unusual punishment.”

At the international level, these human rights are most thoroughly enumerated in the United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted as the “Nelson Mandela Rules” by the UN General Assembly in December 2015,[28] include numerous stipulations relevant to concerns raised about detention at the NWDC. For example:

  • Rule 5, paragraph 2 stipulates that, “Prison administrations shall make all reasonable accommodation and adjustments to ensure that prisoners with physical, mental or other disabilities have full and effective access to prison life on an equitable basis.”
  • Rule 10, paragraph 1: “Prisoner file management systems shall also be used to generate reliable data about trends relating to and characteristics of the prison population, including occupancy rates, in order to create a basis for evidence-based decision-making.”
  • Rules 19, paragraph 2: ”All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.”
  • Rule 22, paragraph 1: “Every prisoner shall be provided by the prison administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.”
  • Rule 24, paragraph 1: “Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.”
  • Rule 43, paragraph 1: “In no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment. The following practices, in particular, shall be prohibited: (a) Indefinite solitary confinement; (b) Prolonged solitary confinement. Prolonged solitary confinement is defined in rule 44 as ”solitary confinement for a time period in excess of 15 consecutive days.”
  • Rule 45, paragraph 2: “The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.”
  • Rule 57, paragraph 3:”Allegations of torture or other cruel, inhuman or degrading treatment or punishment of prisoners shall be dealt with immediately and shall result in a prompt and impartial investigation conducted by an independent national authority.”
  • Rule 61, paragraph 3: “Prisoners should have access to effective legal aid.”

Our research documents key areas where conditions documented at NWDC diverge from the aforementioned international human rights standards. Our findings focus on five areas of concern: sanitation of food and laundry; allegations of medical neglect; the use of solitary confinement; the treatment of hunger strikers and retaliation against organizing by detained people; and issues related to transparency and oversight. All of these take on increased urgency in light of the COVID-19 pandemic.

Next section: Sanitation of Food and Laundry →

Notes

[1] See Lewis Kamb, “A Rare Look Inside the Northwest Detention Center”, The News Tribune, September 9, 2012.

[2] See Matt Driscoll, “Tacoma leaders look to Congress for help monitoring NWDC. They should look in the mirror, too”, The News Tribune, March 6, 2019.

[3] Letter from Gov. Jay Inslee to U.S. Department of Homeland Security Acting Inspector General John V. Kelley, November 28, 2018.

[4] Letter from Senator Marie Cantwell to U.S. Department of Homeland Security Inspector General Dr. Joseph V. Cuffari, November 28, 2018.

[5] Washington State Office of the Attorney General, AG Ferguson Sues Operator of the Northwest Detention Center for Wage Violations, September 20, 2017.

[6] Amy Roe, ACLU-WA is in court to fight for free-speech rights of detained immigrant, September 7, 2018.

[7] ACLU, ACLU and NWIRP Statement on Court Refusal to Release People at High-Risk of COVID-19, March 19, 2020.

[8] Sara Bernard, “Tacoma Takes a Harder Line Against Immigrant Detention. Too Little, Too Late, Say Activists”, Seattle Weekly, May 11, 2017.

[9] Jillian Raftery, “ICE offers rare tour of Tacoma immigration detention to show ‘humane’ conditions”, MyNorthwest, September 11, 2018.

[10] In 2018, the DHS Office of the Inspector General conducted a review in which it found that even ICE staff considered these inspections to be “useless” and “very, very, very difficult to fail,” and concluded that the monitoring system had no effect on actual compliance with standards. See DHS OIG, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, OIG-18-67, June 26 2018. For example, in 2019 the USA TODAY Network analyzed inspection reports since 2015, identifying 15,821 violations of detention standards, yet ICE considered 90% of the facilities to have passed inspection. See USA Today Network, “Deaths in custody. Sexual violence. Hunger strikes. What we uncovered inside ICE facilities across the U.S.”, December 22, 2019.

[11] In January 2019, DHS director John Kelly wrote to Gov. Inslee that the OIG was considering an inspection of the NWDC but would not announce its intention to do so in advance. As of February 2020, the governor’s office has received no further information regarding an inspection.

[12] Letter from Senator Marie Cantwell to U.S. Department of Homeland Security Inspector General Dr. Joseph V. Cuffari, November 28, 2018.

[13] While the Tacoma-Pierce County Department of Health has some minimal oversight functions due to the facility’s (voluntary) operation under a Food Establishment Permit, inspections are limited to the kitchen, and outbreaks of infectious disease are only investigated by the Department in cases of food-borne illness. The facility is exempt from state notifiable conditions reporting laws, although Tacoma’s epidemiology nurses have, on occasion, received notifications of mumps or chicken pox in the facility.

[14] In our experience, this level of mismanagement of FOIA requests is not unique to matters relating to the NWDC.

[15] See for example the following reports: Human Rights Watch, US: Poor Medical Care, Deaths, in Immigrant Detention, June 20, 2018; American Civil Liberties Union, Detention Watch Network, and the National Immigrant Justice Center, Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention, June 20, 2018.

[16] Deena Shanker and Polly Mosendz, “Border Detainees Are Fed ‘Appalling’ Menu of Slimy Sandwiches and Unhealthy Ramen”, Bloomberg, June 28, 2019.

[17] Human Rights Watch, In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells, February 28, 2018.

[18] See for example the following reports: Alice Speri, “Detained, Then Violated”, The Intercept, April 11, 2018; Richard Gonzales, “Sexual Assault Of Detained Migrant Children Reported In The Thousands Since 2015”, NPR, February 26, 2019; Monsy Alvarado et al., “Deaths in custody. Sexual violence. Hunger strikes. What we uncovered inside ICE facilities across the US”, USA Today Network, December 19, 2019.

[19] U.S. Department of Homeland Security Office of Inspector General, Management Alert – DHS Needs to Address Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley (Redacted), OIG-19-51, July 2, 2019.

[20] DHS OIG, Concerns About ICE Detainee Treatment and Care at Four Detention Facilities, OIG-19-47, June 3, 2019.

[21] A more recent set of standards, the “ICE National Detention Standards 2019” (NDS 2019) applies to “Non-Dedicated Facilities” such as those which also hold non-immigration detainees.

[22] Some violations of immigration law have been criminalized by federal statute, including 8 U.S. Code § 1325 “Improper entry by alien” and 8 U.S. Code § 1326 “Reentry of removed aliens”. Individuals convicted of these crimes serve their sentences in federal prison, not the NWDC. They are typically sent to civil detention facilities like the NWDC upon completion of their criminal sentence.

[23] UN Working Group on Arbitrary Detention (UNWGAD), Country report visit to the United States of America, A/HRC/36/37/Add.2, ¶ 21.

[24] Inter-American Commission on Human Rights, Report on Immigration in the United States: Detention and Due Process. OEA/Ser.L/V/II. 78/10, p. 144.

[25] Ahilan Arulanantham and Michael Tan, “Is It Constitutional to Lock Up Immigrants Indefinitely?”, ACLU, March 5, 2018.

[26] The ICCPR guarantees all persons the right to a “fair and public hearing by a competent, independent and impartial tribunal established by law; and the right to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” International Covenant on Civil and Political Rights, Art. 14(1). See also UDHR, Art. 10

[27] UN Working Group on Arbitrary Detention, Opinion No. 10/2013 concerning Mr. Obeidullah (United States of America). A/HRC/WGAD/2013/10.

[28] UN General Assembly resolution 70/175, annex, The United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), adopted on 17 December 2015.