On July 15, Governor Tom Wolf said that housing immigrant children at the Berks County Detention Center is “wrong,” “immoral,” and “inhumane.” Berks is one of three family detention facilities in the United States, and it has detained children under the age of 9. But, he added, he has not been able to “come up with” any way to shut it down, claiming that it is ultimately up to the federal government.
There is a way to shut down Berks, and it’s not very complicated.
Berks is not a federal facility; it is owned and operated by Berks County based on a contract with U.S. Immigration and Customs Enforcement (ICE). Because it is operated by the county, it is subject to state regulations. Those regulations say that children younger than 9 may not be detained in a secure facility, which Berks — with its locked doors and round-the-clock surveillance — clearly is. Federal law itself confirms that all facilities that detain migrant children must be licensed by the state.
In fact, the state has already decided that Berks violates state regulations. On Jan. 27, 2016, Pennsylvania Department of Human Services (DHS) refused to renew Berks’ license. The county appealed the decision within DHS, which has sat on the case for more than three years. Meanwhile, DHS has agreed to allow Berks to continue to operate.
Wolf could insist that DHS make an immediate decision on this appeal. He could also withdraw permission for allowing Berks to continue to operate until the appeal is resolved.
And there’s more the governor could do. Pennsylvania has the authority to issue an emergency removal order where there is “evidence of gross incompetence, negligence, misconduct in operating the facility … likely to constitute an immediate and serious danger to the life or health of the clients.” That standard is met here; the American Academy of Pediatrics finds that secure detention of young children causes serious physical and emotional harm.
Wolf can send a letter to both Berks County and ICE informing them that the facility cannot continue to operate in violation of state law. This letter should provide a deadline by which the facility should cease to operate, with the threat that the state will shut it down if it does not.
For sure, if ICE is prohibited from holding families at Berks, it will have to find other options. ICE could opt to place families in alternatives to detention programs rather than jails. Studies show that families placed in such alternative programs have an impressive 99% attendance rate at immigration court hearings and ICE appointments.
The bottom line is that Pennsylvania, not ICE, has the authority to determine whether families and young children can be housed here in county-operated facilities. State regulations have already answered that question with a clear “no.” It is time for the governor to enforce those regulations and say no to detaining migrant children within our commonwealth.
Jennifer J. Lee is a professor at the Sheller Center for Social Justice at Temple Law School.