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Coalition Letter: Standards in ICE Detention Policies
7/16/2008
July 16, 2008

The Honorable Julie L. Myers
Assistant Secretary of Homeland Security
U.S. Immigration and Customs Enforcement
425 I Street, NW
Washington, DC 20536

Dear Assistant Secretary Myers:

We are a group of organizations and advocates concerned about the practice of restraining female detainees during pregnancy, labor, delivery, and post-delivery. We write to request that ICE include language in the standards governing ICE detention practices that prohibits the use of shackles or restraints on pregnant women in ICE custody.

We are aware that under your leadership ICE issued a humanitarian protocol that addresses discretionary release of pregnant women, sole care givers, and nursing mothers. We also appreciate that in certain individual cases ICE has exercised discretion to release from ICE custody near-term pregnant women so that they could deliver their children in a non-custodial setting. We applaud these actions and respectfully request that attention also be given to the plight of pregnant women who remain in ICE custody.

We understand that earlier this year, ICE solicited comments from members of the DHS-NGO Enforcement Working Group (“ICE Working Group”) on ICE’s draft Performance Based National Detention Standards (“PBNDS”). We also understand that the PBNDS are expected to be issued in 2008 and will override the existing Detention Operations Manual. The current detention standard on Use of Force does not squarely address the use of shackles or restraints, but states the following:

Medical staff shall prescribe the precautions required to protect the fetus, including the manner in which the pregnant detainee will be restrained, the advisability of a medical professional’s presence when restraints are applied, and the medical necessity of restraining the detainee in the facility hospital or a local medical facility.

The January 2008 Residential Detention Standards contain similar language, and we assume that the proposed PBNDS will reflect the same policy. While we understand that the ICE Working Group’s formal submission of comments to your office was completed some weeks ago, we would be grateful for the opportunity to submit the following comments and recommendations to ICE on this narrow and compelling issue. We urge ICE to adopt language prohibiting the use of restraints on pregnant women in both the PBNDS and the Residential Detention Standards.

Until recently, the needless shackling of pregnant women was routinely conducted in American prisons and jails, but this is no longer the case. Now, the dangerous practice of shackling pregnant women is being reconsidered and in many cases prohibited due to both proven and potential harm to the mother and child. In June 2007, the American College of Obstetricians and Gynecologists (ACOG) released a statement calling for an end to the practice of shackling mothers in labor and delivery as “physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall, putting the health and lives of the women and unborn children at risk.”1

State legislatures and Departments of Correction have also responded to the sea change in shackling policy. California, Illinois, and Vermont have enacted laws prohibiting the practice of shackling pregnant women in nearly all circumstances. Lawmakers in these states recognized that incarcerated pregnant women are typically non-violent offenders and hardly constitute a security threat during the painful stages of labor and the delivery of their children. There have been no reported situations of pregnant women posing a security threat or flight risk in California, Illinois, or Vermont since the enactment of their anti-shackling laws.

Policy reviews on restraining pregnant women have also been conducted at the federal level. On October 31, 2007, the Federal Bureau of Prisons (BOP) released new post-order language that discourages the use of metal waist restraints on pregnant offenders and prohibits the placing of pregnant women in a face down, four-point restraint.2 The BOP post-order also prohibits placing of pregnant women in restraint belts that directly constrict the area of pregnancy.3 And, in April 2008, President Bush signed into law the Second Chance Act, which will require that all federal correctional facilities document the instances in which it is necessary to place a pregnant woman in restraints during labor and delivery.

Clearly, the federal government, state governments and the medical community are concerned about the practice of restraining or shackling pregnant women. We urge ICE to consider these concerns when revising its own policies and practices. We are not currently aware of an instance of an ICE detainee being shackled during delivery but urge ICE to adopt language to ensure that such a situation never occurs. Unfortunately, non-governmental organizations have reported that pregnant women are shackled by ICE when being transported to and from medical appointments.4 Similarly, anecdotal reports of the shackling of pregnant women have surfaced at the Northwest Detention Center in Washington State.5

As noted above, ICE’s current policy, as reflected in the Detention Operations Manual and the ICE/DRO Residential & Family Standards, is to require medical staff to advise and prescribe precautions regarding the use of restraints on pregnant detainees. Rather than leaving restraint practices solely under the direction of medical staff, we urge ICE to follow the lead of the BOP and adopt the same specific practices and prohibitions regarding the use of restraints on pregnant women embodied in the revised BOP Post Orders. We further urge ICE to prohibit any policy or practice that allows the routine restraint of pregnant women during medical appointments (and travel to and from the same), labor, delivery, and post-delivery. The risks to women and children are simply too great. The experience of California, Illinois, and Vermont clearly demonstrate that routine shackling of pregnant women is not necessary to ensure safety and security.

1 See Attachment 1, Letter to Malika Saada Saar, Executive Director, The Rebecca Project from Ralph Hale, MD, Executive Vice President, ACOG, June 12, 2007. 2 See Attachment 2, Letter to The Honorable Richard J. Durbin, U.S. Senate from Joyce K. Conley, Assistance Director, Federal Bureau of Prisons, October 17, 2007 3 Id.
4 See, e.g., Women’s Commission for Refugee Women and Children and Lutheran Immigration and Refugee Service “Locking Up Family Values: The Detention of Immigrant Families,” February 2007, at 21, available at http://www.womenscommission.org/pdf/famdeten.pdf).
5 Andrew Bacon, “Pregnant Women Mistreated at the Northwest Detention Center, Tahoma Organizer, available at http://www.tahomaorganizer.org/pregnant-women-mistreated-at-the-northwest-detention-center, last modified June 25, 2008.
3We thank you for your attention to this important matter and would welcome the opportunity to meet with you to discuss this matter further. Should you need any additional information, please contact Malika Saada Saar, Executive Director, The Rebecca Project at 2309 18th St. NW, Suite 2, Washington, DC 20009 or 202-265-3907 or malika@rebeccaproject.org.

Sincerely,

NATIONAL
1. American-Arab Anti-Discrimination Committee
2. American Civil Liberties Union
3. American College of Obstetricians and Gynecologists
4. American Friends Service Committee
5. American Psychological Association
6. Amnesty International USA
7. Asian Communities for Reproductive Justice
8. Asian Law Caucus
9. Bender’s Immigration Bulletin
10. Brazilian Women's Group
11. Breakthrough: Building Human Rights Culture
12. Center for Community Change
13. Center for Gender and Refugee Studies
14. The Center for Reproductive Rights
15. Community Action Program, United Methodist Women's Division
16. Concerned Migrants, (C-E-M) WorldWide
17. The Episcopal Church
18. Friends Committee on National Legislation
19. Fuerza Mundial/We Are The Ones Community for Immigrant Rights
20. Haiti Solidarity Network of the North East
21. Immigration Equality
22. Interfaith Legal Services for Immigrants
23. Jesuit Refugee Service/USA
24. Justice Now
25. Law Students for Reproductive Justice
26. Leadership Conference on Civil Rights
27. Legal Momentum
28. Legal Services for Prisoners with Children
29. Lutheran Immigration and Refugee Service
30. Mexican American Legal Defense Fund
31. National Advocacy Center of the Sisters of the Good Shepherd
32. National Advocacy Partnership for Children of the Incarcerated
33. National Advocates for Pregnant Women
34. National Asian Pacific American Women’s Forum
35. National Council of La Raza
36. National Immigration Forum
37. National Korean American Service & Education Consortium
38. The National Latina Institute for Reproductive Health
39. National Organization for Women
40. National Coalition for Immigrant Women’s Rights
41. National Partnership for Women & Families
42. National Women’s Health Network
43. The National Women’s Law Center
44. Our Bodies Ourselves
45. Planned Parenthood Federation of America
46. Prison Fellowship
47. Prison Legal News
48. Rebecca
49. Reproductive Health Technologies Project
50. Safe Horizon
51. Service Employees International Union
52. The Sisters of Mercy of the Americas
53. Stop Prisoner Rape
54. Tahirih Justice Center
55. Unitarian Universalist Association of Congregations
56. United Church of Christ, Justice and Witness Ministries
57. Women’s Commission for Refugee Women and Children
58. Women's Emergency Network
59. Women Empowered Against Violence, Inc.

REGIONAL
60. The Advocates for Human Rights – MN
61. Amethyst, Inc. – OH
62. Arab Community Center for Economic and Social Services – MI
63. Arkansas Voices for the Children Left Behind, Inc.
64. B.A.R.B’s Place- AR
65. Bill of Rights Defense Committee – Tacoma
66. Casa Freehold – NJ
67. Centro Presente – MA
68. Chicago Legal Advocacy for Incarcerated Mothers – IL
69. Coalition for Humane Immigrant Rights of Los Angeles
70. Coalition Against Racism, Anti-Semitism & Bigotry – Kansas City
71. Coloradans For Immigrant Rights
72. Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR)
73. Comunidad Liberación/Liberation Community Church
74. Conextions, Inc. – NY/NJ/CT
75. Florida Costal School of Law Immigration Clinic
76. Florida Immigrant Advocacy Center
77. Florida Institutional Legal Services
78. Gateway House, Inc.- AR
79. Greater Hartford Legal Aid, Inc.
80. H. S. Power & Light – Faith Based Latino Initiative- CO
81. Horizon Health Center – NJ
82. Hudson Perinatal Consortium, Jersey City, NJ
83. Immigrant and Refugee Rights Project of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs
84. Immigration Program, Legal Aid Society of Rochester, Inc.
85. Kentucky Coalition for Immigrant and Refugee Rights
86. The Kentucky May Day Coalition
87. Korean American Resource & Cultural Center, Chicago, IL
88. Korean Resource Center, Los Angeles, CA
89. Latin American Research and Service Agency (LARASA)-CO
90. The Legal Aid Society, New York
91. Massachusetts Correctional Legal Services
92. MataHari: Eye of the Day, Massachusetts
93. Mennonite Central Committee Washington Office
94. Meta House, Inc- WI
95. New Jersey Immigration Policy Network
96. New York Immigration Coalition
97. NM Women's Justice Project
98. Pax Christi NJ
99. PB&J Family Services, Inc. – NM
100. People of Faith for Hospitality & Justice – Kansas City
101. Realbirth Education and Postpartum Support Center – NY
102. SHIELDS for Families, Inc.- CA
103. Southern New Jersey Perinatal Cooperative
104. Southwest Institute for Research on Women at the University of Arizona
105. Tennessee Immigrant & Refugee Rights Coalition
106. Tulsa Immigrant Resource Network of the University of Tulsa College of Law Boesche Legal Clinic
107. University of Tulsa Immigrant Rights Project
108. University of Maryland School of Law Immigration Clinic
109. Uptown People’s Law Center – Chicago, IL
110. Washington Defender Association’s Immigration Project
111. Women in Prison Project, Correctional Association of New York

cc: The Honorable Richard J. Durbin, Senator



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