By Dani Finck, MPP Candidate 2017
In the United States, if convicted of a serious crime, you are sentenced to serve time in a jail or prison. While imprisonment is by no means a walk in the park, criminals are still protected by certain civil and basic human rights. After all, criminals are still human beings and it is simply unconstitutional in this nation to continuously subject them to unnecessary abuse, regardless of their actions. However, this idea of constitutionality seems to be a bit exclusive. If those convicted of serious crimes and felonies are protected or provided rights, shouldn’t those only convicted of a misdemeanor also be? Quite obviously, the answer to this question is yes. That is, until you consider the mistreatment of those accused of being illegal immigrants in detention centers across the United States. By considering immigrant civil offenders, the government has assured that they have no legal obligation to protect their constitutional and human rights.
It has been over a century since the Supreme Court ruled that the deportation of non-citizens in this country is a civil, and not criminal matter.[1] Crossing or attempting to cross the U.S. border is considered a misdemeanor.[2] However, as mere “civil” offenders, non-citizens are not offered counsel, read their rights, or even officially arrested. What this ends up translating to, unfortunately, is “no criminal charges, no protections or rights.”
According to the United Nations, all prisoners deserve a set of standard minimum rules when it comes to their treatment. These are not limited to rules governing accommodations and sleeping arrangements which meet minimum health requirements, including tolerable climatic conditions, floor space, lighting, heating, and ventilation. Corporal punishment, including any punishment which is deemed cruel, inhumane, or degrading is also prohibited. This includes access to potable drinking water and food, along with access to hygiene products and bathrooms.[3]
In detention centers detainees do not have the pleasure of being considered prisoners, and are not provided with these protections. More and more reports have surfaced detailing degrading treatment. On March 12, 2013, an administrative complaint under the Federal Insurance Contributions Act (FICA) was levied against the United States and highlighted some of this degradation. The report includes the personal accounts of several immigrant women who were apprehended and sent to detention centers. According to the women, they were all brought to “hieleras,” literally translating to “ice-boxes.” These “hieleras” are named because of the freezing cold temperatures detainees are exposed to, often for days at a time, and after being stripped of their outer layers of clothing. The women testified that it was so cold that their fingers and lips turned blue, and that they were often only fed one “meal” a day – a frozen sandwich. Two women had their diabetes medication confiscated, resulting in serious medical complications. Women who were on their menstrual cycles were not allowed access to bathrooms. These immigrants were held for up to 13 days in these conditions.[4]
While to many this might (and probably should) seem unimaginable, it is a small miracle that the devastating accounts of these women have even been reported. After all, in keeping in theme with lack of protections and rights, they also do not have access to counsel. Since no constitutional or statutory right to appointed counsel exists in this country for immigrants, they are forced to represent themselves. There will always be people who are anti-immigration who will argue that non-citizens should not be allowed the same protections or right to counsel as citizens. What if, then, these non-citizens were escaping threats, persecution, or even death in their home countries? If the alternative to immigration is so dire, then why do we force immigrants to defend themselves and treat them like criminals? At face value, it is ethically impossible to differentiate between the situations of individual immigrants, so in the interest of basic human and international rights, at the very least access to counsel should be provided.
For a nation boasting a foundation on immigration, policies that revolve around human rights, not the criminalization of immigrants, need to be put in place. Border enforcement strategies that discourage migration through the imposition of consequences and suffering are not effective and must change. Policy reforms must happen at the executive level. These policies must compel detention facilities and, more broadly, the Department of Homeland Security, to comply with the standards of the constitution, such as limiting the amount of time detainees are held and providing them with adequate nourishment and medical care. While the U.S. government calls immigration a civil matter, human rights must still be addressed and acknowledged by the United Nations if the United States government remains unwilling. So long as illegal presence in our country is not considered a criminal charge, something must be done to offer protection to this already underrepresented and vulnerable community of “civil offenders”.
[1] Careen, Shannon. (2014). Immigration is Different: Why Congress Should Guarantee Access to Council in All Immigration Matters.” University of the District of Columbia Law Review. 1-40. Web.
[2] Immigrant Policy Project. (2015). Retrieved from: http://www.ncsl.org/research/immigration.aspx
[3] United Nations migrant rights.
[4] Lyall, James. ACLU of Arizona. (2015, October 15) “Immigrant-Rights and Detention.” Retrieved from http://aclu.org/issues/immigrants-rights/immigrants-rights-and-detention#content