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Federal judge still considering release of 12 ICE detainees at York County Prison

Liz Evans Scolforo
York Dispatch
York County Prison in Springettsbury Township, Thursday, June 29, 2017.

A federal judge is still deciding whether to release 20 immigrants being detained in prisons in York and Pike counties.

The American Civil Liberties Union of Pennsylvania filed a petition in Harrisburg's federal court on April 3, asking for the release of 22 federal immigration detainees. That number has dropped to 20 detainees, as U.S. Immigration and Customs Enforcement officials voluntarily released two of them, officials said.

Twelve are detained in York County Prison, and eight in Pike County's prison, according to state ACLU spokesman Andy Hoover. All are in civil detention, as opposed to criminal detention, federal court records state.

They suffer from serious medical conditions that make them particularly vulnerable to contracting — and possibly dying from — COVID-19, the state ACLU has argued, including hepatitis C, asthma, hypertension, diabetes, seizures, traumatic brain injury and emphysema.

Presiding U.S. District Judge John E. Jones III on Tuesday ordered the immediate release of the detainees. That ruling came on the heels of his March 31 order granting a previous ACLU request to release 10 detainees at three county prisons, including four in York, noting all faced "imminent, irreparable harm," including death, if they contract COVID-19.

But the release of the additional 20 detainees didn't happen because Harrisburg-based U.S. Attorney David Freed immediately filed a brief in opposition to Jones' Tuesday ruling.

Reconsideration: In response, Jones agreed to stay his temporary restraining order and reconsider his decision, then gave both sides an additional opportunity to file briefs arguing their positions, according to federal court records.

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Freed argued that continuing to hold the immigrants in custody as they await the conclusions of their ICE cases isn't unconstitutional, even during the COVID-19 pandemic.

His filing urged the judge to balance the detainees' individual concerns "with the threats that dangerous aliens, such as Petitioners, pose to society as a whole."

Freed's filing lists the criminal histories of the detainees, who are charged with or convicted of crimes ranging from aggravated assault, robbery and drug dealing to shoplifting and driving under the influence, according to court filings. One of them has been arrested about 15 times and has about eight convictions in three states, according to the filing.

More:'Humanitarian crisis': ACLU sues, says York County Prison puts ICE detainees at risk from coronavirus

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The ACLU maintains some of the government's representations "are imprecise or inaccurate," that almost all the petitioners have nonviolent convictions or no convictions and only pending charges, and that those with convictions have already completed their criminal sentences.

'Reasonable steps': Freed noted that ICE, York County Prison and Pike County Correctional Facility "have taken reasonable steps to protect detainees" and argued that "all members of society" now face sudden shortages of items.

The filing takes issue with doctors' opinions, filed as exhibits to the original case by the ACLU of Pennsylvania, arguing that none has personally examined the detainees and "accept as accurate Petitioners' self-reported pre-existing conditions, as well as the severity of the same."

David Freed, U.S. Attorney’s Office for the Middle District of Pennsylvania, and several federal, state and local law enforcement agencies join forces with the York City community to conduct neighborhood walks in York to reduce crime and build trust, Wednesday, May 22, 2019.
John A. Pavoncello photo

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ICE epidemiologists are tracking the coronavirus outbreak and offering guidance to staff members on managing detainees' potential exposure, the filing states.

"ICE has taken affirmative steps to reduce the number of immigration detainees at (both prisons) by reconsidering custody determinations and parole requests, and issuing orders of supervision on release for those aliens who are not subject to mandatory custody, do not pose a danger to the community or flight risk, and/or are not significantly likely for removal in the foreseeable future," the filing states.

York County Prison has a capacity of 2,245 people, and as of Tuesday, was housing 1,341 people, according to government filings.

People entering the prison, including staff and vendors, are screened for symptoms, the filing states.

'Cohorting': Detainees exposed to COVID-19 who don't exhibit symptoms are housed together "for the duration of the 14-day incubation period," which is called "cohorting," the filing states, and are monitored for fever and symptoms of respiratory illness.

Both prisons have areas dedicated for use in quarantining suspected cases, according to Freed's filing, and both have "increased sanitation frequency." Both provide soap, water and hard-surface disinfectant to every housing unit and staff is given hand sanitizer, the filing states.

York County Prison requires staff and private contractors to wear N95 masks, and requires all kitchen staff to wear surgical masks, according to the filing.

The government maintains detainees have "24/7 access" to medical care inside the prisons and argues that if released, detainees who become sick will "expect local hospitals to swallow the costs of treatment" and add to the overburdening of hospitals.

The state ACLU, in its brief opposing the government's reconsideration request, argues that many detainees who have symptoms of COVID-19 cannot get York County Prison to test them.

U.S. District Judge John E. Jones III

The brief also alleges the prisons aren't complying with recommendations by the federal Centers for Disease Control and Prevention — that detainees can't practice social distancing, that many guards wear masks on the tops of their heads rather than over their faces and that detainees don't have access to hand sanitizer.

The government's filing includes a declaration by ICE field director Joseph Dunn that it's his understanding both prisons are following CDC guidance regarding the COVID-19 pandemic, but the ACLU's brief argues he has no firsthand knowledge of that.

Also, the ACLU is arguing there are "profound deficiencies" in medical care, despite the government's assertion otherwise.

The detainee in York County Prison who tested positive for COVID-19 was left in the women's block with about 56 other prisoners "for several days prior to receiving medical attention, despite repeated requests," the ACLU brief alleges.

— Reach senior crime reporter Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.