Udall, Heinrich To HHS And DHS Secretaries: Family Detention Is Morally Wrong, Harmful To Children and Parents, Inconsistent With Fundamental American Values

In a letter, Heinrich, Udall, and Democratic Senators demand Secretaries Azar and Nielsen rescind the proposed rule that would allow for indefinite family detention

WASHINGTON, D.C. - U.S. Senators Tom Udall (D-N.M.) and Martin Heinrich (D-N.M.) along with a number of Democratic Senators sent a letter to U.S. Department of Health and Human Services (HHS) Secretary Alex Azar and U.S. Department of Homeland Security (DHS) Secretary Kirstjen Nielsen imploring them to rescind the proposed regulation to allow the Trump Administration to facilitate the indefinite detention of children in Immigration and Customs Enforcement (ICE) facilities and avoid complying with the government's legal obligations under the 1997 Flores Settlement. 

In their letter, the Senators highlight how indefinite family detention is immoral and cruel, more costly to taxpayers than more humane alternatives, and poses a high risk of harm to children and families according to medical experts.

"After a brief interlude it appears that the great minds in your agencies have come up with an even worse idea than the ongoing family separation crisis you created a few months ago.  A policy of universal family detention is morally wrong, harmful to children and parents alike, and inconsistent with our most fundamental values as a nation," the Senators wrote.  "We urge you to rescind this flawed proposed rule, heed the advice of child development and health care experts about the harmful impacts of family detention, and comply in good faith with the terms of Flores.  This proposed rule is an embarrassment to our great nation and the American people." 

The letter was led by U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate's Immigration Subcommittee; Senator Dianne Feinstein, Ranking Member of the Senate Judiciary Committee; and Senator Patty Murray (D-WA), Ranking Member of the Senate Committee on Health, Education, Labor and Pensions, and signed by Udall, Heinrich, and U.S. Senators Patrick Leahy (D-VT), Ron Wyden (D-OR), Jack Reed (D-RI), Robert Menendez (D-NJ), Ben Cardin (D-MD), Bernie Sanders (I-VT), Sherrod Brown (D-OH), Bob Casey (D-PA), Sheldon Whitehouse (D-RI), Jeff Merkley (D-OR), Michael Bennet (D-CO), Kirsten Gillibrand (D-NY), Chris Coons (D-DE), Richard Blumenthal (D-CT), Brian Schatz (D-HI), Tammy Baldwin (D-WI), Mazie Hirono (D-HI), Elizabeth Warren (D-MA), Ed Markey (D-MA), Cory Booker (D-NJ), Chris Van Hollen (D-MD), Tammy Duckworth (D-IL), Kamala Harris (D-CA), and Catherine Cortez Masto (D-NV).

Full text of the letter is available here and below:

Dear Secretary Azar and Secretary Nielsen:

After a brief interlude it appears that the great minds in your agencies have come up with an even worse idea than the ongoing family separation crisis you created a few months ago.  A policy of universal family detention is morally wrong, harmful to children and parents alike, and inconsistent with our most fundamental values as a nation.  We therefore urge you to rescind your September 7, 2018 proposed regulation to avoid complying with the government's binding legal obligations under the Flores Settlement Agreement (Flores) and to facilitate the indefinite detention of children in taxpayer-funded Immigration and Customs Enforcement (ICE) facilities.

Prolonged and unnecessary ICE detention violates the core protections for children that Flores requires.  The requirements of Flores, in effect since 1997, are unequivocal: "[The Department of Homeland Security (DHS)] shall place each detained minor in the least restrictive setting appropriate to the minor's age and special needs, provided that such setting is consistent with its interests to ensure the minor's timely appearance before and the immigration courts and to protect the minor's well-being and that of others" (emphasis added).  Flores also requires that, unless DHS determines that detention is required to secure a minor's timely appearance for agency or immigration court proceedings or is required to ensure the minor's safety or that of others, DHS "shall release a minor from its custody without unnecessary delay" (emphasis added).

Your regulatory proposal would replace the Trump Administration's inhumane forcible family separation policy with indefinite detention in facilities that child development and health care experts have found to be harmful to children and families.  While ICE official Matthew Albence inappropriately characterized ICE's family detention facilities as being "more like a summer camp" at a recent Judiciary Committee hearing, child development and health care experts provide a more credible perspective.  The American Academy of Pediatrics has found that DHS facilities "do not meet the basic standards for the care of children in residential settings." The American Medical Association opposes "family immigration detention, separation of children from their parents in detention, and any plans to expand these detention centers" because of "the negative health consequences that detention has on both children and their parents."  Additionally, Congress received a letter from two of DHS's own medical consultants in July who investigated ICE family detention centers over several years and concluded that they pose "a high risk of harm to children and their families."

Existing law provides ample authority for DHS to detain individuals who pose a threat to their own safety or to the safety of others or who pose a flight risk, while utilizing alternatives to detention for other individuals.  As U.S. District Court Judge Dolly Gee stated in her July 9 order rejecting the government's attempt to undermine its Flores obligations: "Absolutely nothing prevents [the government] from reconsidering their current blanket policy of family detention and reinstating prosecutorial discretion."   

In addition to humanitarian concerns, the detention of children and families is an extraordinary cost to taxpayers.  DHS acknowledges spending more than $866 million over the last three years to maintain space to detain just over 3,000 family units per year.  Your proposed rule acknowledges that it could result in even more people being detained for longer periods of time.  However, you have failed to provide an estimate of expected increased family detention costs, so Congress and the American people are unable to see how wasteful your plan could truly be.

There are robust alternatives to detention available to the Administration that are more humane, use far less taxpayer money, and yet are effective at ensuring compliance for individuals who may pose a flight risk.  For example, ICE's Family Case Management Program, which was terminated by the Administration last year, showed 100 percent attendance at court proceedings for enrollees and an estimated cost of approximately $36 per person per day versus approximately $319 per day for an ICE family detention bed.  Similar community management programs run by non-profit providers have also been highly effective and cost-efficient.

The Department of Health and Human Services must be a science-driven agency.  Secretary Azar, we were encouraged to hear you declare your commitment to evidence and science during your confirmation hearing when you said "I firmly believe in following evidence and science." Yet the policy in your proposed rule runs counter to this position.  We urge you to demonstrate leadership by heeding the findings of scientific experts on child development and health care, evaluating the evidence regarding the harmful effects of family detention on the physical and mental health of children and their families, and standing by your statement to Congress by withdrawing the proposed rule.

The Trump Administration's handling of the ongoing family separation crisis has been characterized by a toxic mixture of incompetence, cruelty, and disregard for humanity, science, and morality.  Rather than accept responsibility and repair the damage you have caused, you have now doubled down with a plan to lock up children indefinitely.  We urge you to rescind this flawed proposed rule, heed the advice of child development and health care experts about the harmful impacts of family detention, and comply in good faith with the terms of Flores.  This proposed rule is an embarrassment to our great nation and the American people. 

Sincerely,