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May 12, 2017

Sheriff Gary Caruana Frank Haney, Chairman


Winnebago County Sheriffs Department Winnebago County Board
650 W. State Street Administration Building
Rockford, IL 61102 404 Elm St., Room 533
Rockford, IL 61101

Re: Liability risks attendant to utilization of Winnebago County Jail for immigration
detention purposes

Dear Sheriff Caruana and Board Chairman Haney:

It is our understanding that Winnebago County is considering entering into a new or amended
contract to allow United States Immigration and Customs Enforcement (ICE) to utilize more
than 100 beds in the Winnebago County Jail for the purpose of detaining non-citizens pending
their civil removal proceedings.

As an organization committed to advancing the civil and human rights of immigrants, we stand
starkly opposed to the use of correctional facilities such as the Winnebago County Jail to further
a civil enforcement regime. Entering into such an agreement would bring your county squarely
to the forefront of a federal detention system that has repeatedly demonstrated its inability to
provide for the basic health, safety,1 and due process rights2 of those it detains. This letter,
however, is intended to draw your attention specifically to the significant financial liability
risks attendant to contracting with ICE for detention beds. In short, any projected revenue
could quickly be wiped away by only one lawsuit.

Should Winnebago County agree to detain immigrants for the federal government, the County
Jail and its staff will be under constant spotlight and examination. This is the case for two
reasons. First, the detention of immigrants is civil rather than punitive in nature, pursuant to
decades of Supreme Court jurisprudence. For this reason conditions of immigration detention
that can arguably be considered punitive raise constitutional concerns, making immigration

1
See, e.g. Human Rights Watch, Systemic Indifference: Dangerous and Substandard Medical Care in U.S.
Immigration Detention (May 2017), https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-
substandard-medical-care-us-immigration-detention (examining serious lapses in health care that have led to severe
suffering and at times the preventable or premature death of individuals held in immigration detention facilities in
the United States in both publicly and privately run facilities detaining immigrants).
2
See, e.g., Ingrid Eagly and Steven Shafer, American Immigration Council, Access to Counsel in Immigration Court
(2016), https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court (reporting that
fewer than one in five non-citizens in immigration detention are able to access legal representation).
Heartland Alliance for Human Needs & Human Rights | National Immigrant Justice Center
208 S. LaSalle Street, Suite 1300, Chicago, Illinois 60604 | ph: 312-660-1370 | fax: 312-660-1505 | www.immigrantjustice.org
detention a very different line of work than confinement in the context of the criminal justice
system.3 Second, in the current political climate there is greatly heightened public awareness and
scrutiny surrounding the issue of immigration detention.

Detaining federal immigration detainees is a complex business and a potentially enormously


costly one. Allegations of deficient health and safety protections for immigration detainees are
rampant nationally, and when such allegations involve county jails the local actors are just as
much in the crosshairs as federal immigration officials.4 In addition to an ever-present risk of
litigation, contracting with Immigration and Customs Enforcement (ICE) will expose the jail to
ongoing inspections and evaluation processes by federal agencies. Congress has mandated for
years that ICE may not maintain any contract for the provision of immigration detention with a
facility that receives two consecutive failed inspections.5

The costs associated with litigation can be devastating to a local economy. Just down the road a
bit, this reality has played out at the McHenry County Jail. In 2014, the company providing
health care at the jail settled for at least $1 million with the family of a woman who committed
suicide while in immigration custody at the jail. The lawsuit was originally filed against the
McHenry County Sheriff as well as Centegra Health System on claims of inadequate medical
care; litigation dragged out for more than eight years before settlement was reached.6 More
recently, in 2016, a lawsuit brought against Allegany County Jail and the Albany County
Correctional Facility in New York was settled for $750,000 amidst claims of that a woman died
in immigration custody after receiving insufficient medical care for chronic congestive heart
failure.7

In the current political environment there will be great scrutiny over the countys use of its local
facilities to detain non-citizens during their removal proceedings. The risk of legal liability for
local actors is compounded by the attendant costs and hassles of any such ensuing litigation.

In 2013, for example, a lawsuit brought against Jefferson County, Illinois was dismissed when
the local jail was emptied of immigration detainees, but nonetheless resulted in grave financial
insecurity for the county when its insurance provider responded to the litigation by issuing a non-
renewal notice. These events unfolded subsequent to a class action lawsuit brought by the
National Immigrant Justice Center and Jenner & Block LLP against Jefferson County, the

3
See Belbachir v. City of McHenry, 726 F.3d 975 (7th Cir. 2013) (citing Youngberg v. Romeo, 457 U.S. 307, 321-22
(1982) for the finding that immigrants in civil detention are entitled to more considerate treatment than criminals
whose conditions of confinement are designed to punish...). See also Bell v. Wolfish, 441 U.S. 520, 535 (1979).
4
See Belbachir v. City of McHenry, 726 F.3d 975 (7th Cir. 2013) (describing tort liability imposed under 42 U.S.C.
1983 on state and local employees, and sometimes their employer, and sometimes other state and local agents, for
violating federal rights in the context of a county jails Inter-Governmental Service Agreement to provide
detention space for federal immigration detention).
5
See Consolidated Appropriations Act of 2017, P.L. 115-31 (May 5, 2017).
6
Robert McCoppin, Chicago Tribune, McHenry jail suicide case settled for at least $1 million, Apr. 14, 2014,
http://articles.chicagotribune.com/2014-04-14/news/ct-mchenry-jail-suicide-settlement-met-20140415_1_hassiba-
belbachir-janine-hoft-federal-court.
7
Brian Quinn, Wellsville Daily Reporter, Wrongful death lawsuit settled for $750,000, Apr. 24, 2016,
http://www.wellsvilledaily.com/news/20160424/allegany-county-attorney-wrongful-death-lawsuit-settled-for-
750000.
2
Jefferson County Board Chair, and the County Sheriff, arguing among other things that the
conditions in the facility were unconstitutionally harmful. After the case was dismissed,
Travelers Property Casualty Company of America informed the county of non-renewal of its
casualty and property insurance, citing an increase in the severity of hazards associated with the
countys operations.8 The County Board Chairman estimated at the time that the non-renewal
would likely increase the costs paid out to the insurance company by $100,000.9

It has been reported that contracting with ICE at the Winnebago County Jail would yield
approximately $400,000 in net revenue for the County.10 The scale of the liability exposure the
county would endure should it choose to get into the business of detaining immigrants for ICE
dwarfs this number. From a purely financial perspective, the costs vastly outweigh any benefits
the contract might bring to the county.

Thank you for your time and consideration, and please dont hesitate to be in touch with any
questions or concerns.

Sincerely,

Heidi Altman, Esq.


Director of Policy
202-879-4311
haltman@heartlandalliance.org

Cc: Members, Winnebago County Board


Aaron Booker, Jim Webster, Steve Schultz, David Boomer, Dave Tassoni, Keith
McDonald, Gary Jury, Eli Nicolosi, Dave Kelley, Joe Hoffman, Dave Fiduccia, Jaime
Salgado, Angie Goral, L.C. Wilson, Burt Gerl, Jean Crosby, Fred Wescott, Dorothy
Redd, Daniel Fellars, and Ted Biondo
Administration Building
404 Elm St., Room 533
Rockford, IL 61101

Cc: Travelers Insurance


161 N. Clark Street
Chicago, IL 60601

8
Rick Hayes, Mt. Vernon Register-News, County gets non-renewal notice, Oct. 3, 2013.
9
Id.
10
Jim Hagerty, The Rock River Times, Finances, fear surround county ICE proposal, May 9, 2017,
http://rockrivertimes.com/2017/05/09/finances-fear-surround-county-ice-proposal/.
3

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