Immigrant Detainees Have No ‘Plan B’

Women in ICE custody have no assurance of receiving emergency contraception—even if they’re raped.

Joyce Lee

Every Friday morning, detainee advocates and family members gather in front of the Broadview Processing Center in Broadview, Ill. to pray for immigrants inside. (Jane Huh)

Learn more about Plan B access at www​.whereisy​our​planb​.com.

'When ICE contracts with these [private prison contractors], it really diffuses their accountability to uphold the basic human rights of immigrants,' says Madhuri Grewal, policy counsel at Detention Watch Network.

Plan B One-Step is now legal­ly avail­able all over the coun­try — in drug­stores, clin­ics and some­times even vend­ing machines — for any­one, no ID or pre­scrip­tion nec­es­sary. A Dis­trict Court rul­ing this spring lift­ed a con­tro­ver­sial FDA require­ment that women younger than 17 obtain pre­scrip­tions to receive access to the emer­gency con­tra­cep­tive and that adult women receive it over the counter” from a phar­ma­cist, rather than just pick­ing it up from the shelf. Women’s health advo­cates strong­ly sup­port­ed the change, which went into effect in August, say­ing it’s extreme­ly impor­tant for sex­u­al assault vic­tims, who have no way of plan­ning con­tra­cep­tion in advance. If Plan B is tak­en with­in 72 hours of hav­ing unpro­tect­ed sex, it has an esti­mat­ed 87 per­cent chance of pre­vent­ing pregnancy.

But the thou­sands of women in immi­grant deten­tion cen­ters still evi­dent­ly have no assur­ance of emer­gency con­tra­cep­tive avail­abil­i­ty, even though detainees face a high risk of sex­u­al abuse.

In the­o­ry, detainees are sup­posed to have access to emer­gency con­tra­cep­tion. That was spelled out ten years ago in the Prison Rape and Elim­i­na­tion Act (PREA), passed by Con­gress in 2003 to pre­vent prison rape on fed­er­al, state and local lev­els. But a Sep­tem­ber dead­line for the Depart­ment of Home­land Secu­ri­ty (DHS) to imple­ment the emer­gency con­tra­cep­tive pro­vi­sions of PREA flew by, and detainee advo­cates are impa­tient­ly await­ing word.

DHS had plen­ty of warn­ing about the dead­line. The Vio­lence Against Women Act, renewed in March 2013, offi­cial­ly gave the agency until Sep­tem­ber to imple­ment the pro­vi­sions of PREA, includ­ing pro­vid­ing emer­gency con­tra­cep­tion to detainees in a time­ly man­ner fol­low­ing sex­u­al abuse, in its facil­i­ties, which include deten­tion cen­ters. And though DHS pub­lished an ini­tial draft of the pro­pos­al in Decem­ber 2012, it has yet to pub­lish and imple­ment a final version.

While await­ing a fin­ished plan, U.S. Immi­gra­tion and Cus­toms Enforce­ment, the prin­ci­pal inves­tiga­tive arm of the DHS, has relied on gen­er­al pol­i­cy direc­tives to pro­tect its detainees. Those poli­cies, how­ev­er, aren’t exact­ly effec­tive, say human rights groups. As of 2009, ICE’s Divi­sion of Immi­grant Health Ser­vices (DIHS) denied women in deten­tion access to any con­tra­cep­tive drugs at all, accord­ing to a Human Rights Watch Report.

In 2011, ICE final­ly issued a pol­i­cy direc­tive titled Per­for­mance-Based Nation­al Deten­tion Stan­dards 2011” (PBNDS) which, in the­o­ry, gave vic­tims of sex­u­al assault access to basic respons­es to sex­u­al abuse such as emer­gency con­tra­cep­tion or abor­tion ser­vices. Gen­der-neu­tral assault pro­tec­tions, like lim­i­ta­tions on strip search­es, were also drafted.

But, as immi­grant deten­tion advo­cates point out, PBNDS is sim­ply a set of rules — much like ones a com­pa­ny might set for its employ­ees. PBNDS does­n’t have any teeth to it, espe­cial­ly con­sid­er­ing that ICE facil­i­ties face no legal penal­ties for fail­ure to com­ply by it. And because pri­vate prison con­trac­tors run 80 per­cent of ICE facil­i­ties, accord­ing to Just Deten­tion, advo­cates say enforce­ment of PBNDS is incon­sis­tent at best.

When ICE con­tracts with these [pri­vate prison con­trac­tors], it real­ly dif­fus­es their account­abil­i­ty to uphold the basic human rights of immi­grants,” says Mad­huri Gre­w­al, pol­i­cy coun­sel at Deten­tion Watch Net­work. Once ICE is con­tract­ing with a facil­i­ty, then that facil­i­ty is now pri­vate­ly run, and con­tracts with out­side med­ical or men­tal health providers.” In oth­er words, ICE does not have the means to ensure that their rules are being enforced.

Asked for com­ment on EC access, ICE spokesper­son Gail Mon­tene­gro told In These Times that because male and female detainees are housed in sep­a­rate units, there is lit­tle to no need for emer­gency con­tra­cep­tion. Con­sen­su­al sex is not allowed in deten­tion cen­ters, she said.

Michelle Brané, direc­tor of the Migrant Rights and Jus­tice pro­gram at the Women’s Refugee Com­mis­sions, says this is a com­mon answer giv­en by ICE offi­cials to ques­tions about con­tra­cep­tives, but that’s not the right answer. That’s not a good answer.” Debat­ing whether con­sen­su­al sex takes place or not miss­es the point, she says, because it doesn’t account for sex­u­al assault.

ICE says it main­tains a zero-tol­er­ance pol­i­cy” towards sex­u­al abuse. And an ear­li­er ver­sion of PBNDS, pub­lished in 2008, con­tained steps such as unan­nounced inspec­tions and reg­u­lar facil­i­ty vis­its to pre­vent and stop sex­u­al abuse in deten­tion cen­ters, accord­ing to an ICE state­ment. ICE reports that it tried to ensure those stan­dards were enforced. In 2009, ICE hired more than 40 Deten­tion Ser­vice Man­agers to check on deten­tion stan­dards enforcement.

Accord­ing to the ACLU, how­ev­er, which obtained ICE’s records through a Free­dom of Infor­ma­tion Act request in 2011, there were around 200 alle­ga­tions of sex­u­al assault against guards and inmates in immi­grant deten­tion cen­ters from 2007 – 2011. Though many cas­es involved male guards assault­ing female detainees, cas­es of assault among inmates and of detainees assault­ed on their way to the air­port to be deport­ed were record­ed as well.

Plus, as Brané points out, not every case of assault is like­ly to be report­ed. We’ve had cas­es come to our atten­tion in which ICE or the local facil­i­ty staff or admin­is­tra­tion has not tak­en seri­ous­ly alle­ga­tions of sex­u­al assault,” Brané said. Or where peo­ple are afraid of say­ing some­thing because they don’t feel [safe enough to go to a] person.”

PBNDS 2011 was an effort to improve upon the 2008 stan­dards by fill­ing gaps in ser­vices, includ­ing med­ical and men­tal health­care, and sex­u­al assault response stan­dards. But it’s still vague — it pro­vides its pris­ons with guide­lines for poli­cies, and then orders all facil­i­ties to write their own poli­cies regard­ing sex­u­al abuse pre­ven­tion and response. As a result, there are incon­sis­ten­cies across the board in these poli­cies’ effec­tive­ness against sex­u­al assault, includ­ing access to emer­gency con­tra­cep­tion, wrote Lovisa Stan­now, exec­u­tive direc­tor of advo­ca­cy group Just Deten­tion Inter­na­tion­al, in a 2012 Huff­in­g­ton Post arti­cle.

Brané agrees that the poten­tial for high­ly var­ied reg­u­la­tions results in con­fu­sion among facil­i­ty author­i­ties. His­tor­i­cal­ly, what we have found is that deten­tion staff and admin­is­tra­tion gen­er­al­ly have very lit­tle knowl­edge on what the direct pro­ce­dures are,” Brané says. When deten­tion cen­ter offi­cials are asked about pro­ce­dures address­ing sex­u­al assault, offi­cials pref­ace their answers with if it’s a valid claim,” Brané says.

When asked for elab­o­ra­tion on what a valid claim” is, offi­cials grow frus­trat­ed and angry, Brané says. Because of this, she doubts that detainees are reg­u­lar­ly giv­en access to the repro­duc­tive health care they need. I can say pret­ty con­fi­dent­ly, I don’t think [emer­gency con­tra­cep­tion] being pro­vid­ed [in response to assault] is very con­sis­tent,” con­tin­ues Brané, who has done exten­sive research on deten­tion cen­ters. I think peo­ple would real­ly have to insist upon it to get it.”

Should DHS final­ly pro­vide a final draft on PREA, the con­tracts ICE signed with its pri­vate pris­ons pose anoth­er chal­lenge. In order to imple­ment PREA in all deten­tion cen­ters, ICE must change those con­tract terms, accord­ing to com­ments sub­mit­ted by Deten­tion Watch Net­work on DHS’s ini­tial PREA draft. Cur­rent­ly, as PBNDS 2011 man­dates, deten­tion cen­ters draft their own stan­dards on sex­u­al abuse pre­ven­tion. Pre­sum­ably, ICE could change the terms of the con­tracts when they are renewed. But, in many cas­es, Deten­tion Watch points out, con­tracts don’t have an end date — they go on indef­i­nite­ly until either par­ty decides to end the contract.

Brané says ICE is often unwill­ing to insist on con­di­tion improve­ment in pri­vate deten­tion cen­ters because that would open up con­tract nego­ti­a­tions. Accord­ing to Brané, ICE is specif­i­cal­ly afraid pris­ons might ask for more bed space, which ICE would have to pay for. But there is no need for ICE to shy away from the prospect of rene­go­ti­a­tion, she points out, because con­tracts are a busi­ness deal, and ICE is the customer.

Though Gre­w­al points out that the high cost of doc­tors and med­ica­tions means it’s in cor­po­ra­tions’ best inter­ests to min­i­mize the med­ical ser­vices they offer detainees, ICE could eas­i­ly lever­age its posi­tion as the buy­er to push for more humane con­di­tions in all pri­vate pris­ons, Brané says. In oth­er words, ICE does not have to wait for con­tracts to be up but could nego­ti­ate new ones imme­di­ate­ly after DHS releas­es the final PREA draft.

ICE spokesper­son Mon­tene­gro declined to com­ment on the mat­ter of contracts.

Med­ical con­di­tions over­all in ICE have improved vast­ly the past few years, immi­grant deten­tion advo­cates acknowl­edge. But sex­u­al assault con­tin­ues to plague deten­tion cen­ters, Brané says, and the vague poli­cies sur­round­ing respons­es to it, includ­ing avail­abil­i­ty of emer­gency con­tra­cep­tion, just aren’t adequate.

Frankly, PREA is law, it’s fed­er­al law,” Brané says. As soon as DHS releas­es its final­ized PREA plans, ‘[ICE] just needs to comply.’

This sto­ry is part of the Repro­duc­tive Jus­tice Report­ing Project, an ini­tia­tive of the Media Con­sor­tium in part­ner­ship with the Asso­ci­a­tion of Alter­na­tive News­me­dia, made pos­si­ble with a grant from the Quixote Foun­da­tion. Learn more about this issue at www​.whereisy​our​planb​.com.

Joyce Lee is a Fall 2013 intern at In These Times and junior at North­west­ern Uni­ver­si­ty. She is inter­est­ed in immi­gra­tion law, human traf­fick­ing and pho­to­jour­nal­ism. Her work has been pub­lished at The Chica­go Bureau, the Juve­nile Jus­tice Infor­ma­tion Exchange and Youth Pol­i­cy. Fol­low her on Twit­ter at @joyceslee.
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