Broken Records and Transparency Recidivism

ICE once again violated Congressional mandates by failing to post a detainee death report within 30 days of an in-custody death

If there are no consequences for breaking rules when someone dies in custody, what is the point of having these rules, and can we really call these in-custody deaths ‘unintended’?

This question sits top of mind as we scroll ICE’s Detainee Death Report page, searching in vain for any official information about the death of Charles Leo Daniel after nearly four years inside a solitary cell the Northwest Detention Center on March 7, 2024. He’s not there.

He should be. Congress requires ICE to publish the information about his death in 30 days. ICE policy requires that, too. It’s a condition of their federal detention funding. Someone is breaking the law. The Anti-Deficiency Act, to be exact. It imposes personal, potential civil and criminal liability on federal officials who violate Congressional spending requirements under a set of defined circumstances But no one will pay. These laws don’t matter. The people bound to uphold them don’t take them seriously. They don’t believe they’re real. So they’re not. And that’s why humans keep dying preventable deaths. It is intentional conduct to repeatedly hide the truth.

As we explained in the case of Frankline Okpu’s death back in December, ICE routinely fails to comply with this Congressional funding mandate and its own policy.

The facts surrounding Charles Leo Daniel’s death are coming into focus, even without the state’s narrative, because people outside the deadly state apparatus are getting them. Yet the fact that this is necessary should prompt us to ask: Why?

ICE Death Reviews : ICE :: Critical Incident Teams :: CBP

The evidence we have obtained over years of FOIA and accountability litigation demonstrates ICE death review process is a coverup scheme, much like the Critical Incident Teams (CITs) US Customs and Border Protection (CBP) operated to hide the facts surrounding in-custody killings by state agents near the border. Advocates like former Senior Border Patrol Agent Jenn Budd and Southern Border Communities helped expose these evidence destruction and coverup operations, resulting in the government’s decision to disband CITs.

It’s long past time we in the community of people who care about the lives of people in ICE detention do the same. Much like CITs, ICE’s Office of Professional Responsibility - External Review and Analysis Unit, and the private contractor it hires to conduct death reviews, Creative Corrections, have no criminal law enforcement investigative authority when it comes to deaths in custody. They don’t even show up right on the scene right away to preserve evidence and interview witnesses. Instead, they schedule interviews sometimes a month after a person died after gathering documents from afar, at the discretion and subject to the whims of the potential criminal wrongdoers. Worse still, their existence works to displace any state or local criminal investigator who might be willing to actually find out what happened. These are coverup teams, through and through.

Don’t believe me? Consider what happens when they find contractors and staff and ICE personnel broke the law in the period before a person’s death: Nothing. In case after case, we see destruction of evidence. That spoliation violates not just the Federal Records Act, not just the contract with the facility, not just FOIA, but the duty to refrain from obstructing justice by destroying evidence. Yet nothing happens, and the ICE Office of Professional Responsibility does not make the mandatory reports to the National Archives and Records Administration that federal records have gone missing. This cements the coverup.

Similarly, ICE’s death coverup teams permit pervasive witness tampering. Contract staff and the local field office retain discretion to threaten people in custody, transfer them, rapidly deport them, release them in the middle of the night, and even throw them into solitary. This impunity ensures the captive population cannot tell its story. Even if they did, that story would fall on the systemically deaf ears of contract reviewers and the death coverup teams.

One response to this analysis could be, “ICE must be presumed to function in keeping with its legal obligations, and if they were serially breaking the law when it comes to deaths in custody, someone in the system would surely speak out and correct that.” To which I would reply, “Okay. Where is the legally mandated death report?”

#DetentionKills not simply by accident. It does so intentionally. Over and over again. Preventably, predictably, and purposefully. The response over the years that we are given from this deadly system is one that begins with opacity and obfuscation, and then, when we get the information that shows what happened, attempts at narrative exceptionalization and reform.

Not to get to nerdy, but if we apply a three-level multi-scalar, conjunctural, structural, and systemic analysis, we see that death in ICE custody is not exceptional to, but constitutive of, the phenomena that demand and reproduce borders and the cages that enforce them. “Conjunctural” analysis means looking at the specific facts of a specific place at a specific time — such as the Northwest Detention Center and its contractual and political relationships, which breed impunity. “Structural” analysis zooms that analysis out to place Tacoma into a historical and geographical continuum through which we understand that this facility is not a particularly bad or horrific center of state violence within the structure of ICE detention, but rather, one which roughly matches the rest of these places. “Systemic” analysis then exposes how state violence upholds the capitalism and colonialism represented by borders and the for-profit detention enterprise.

The state’s exceptionalist and exceptionalizing narrative post-ICE death seeks, as scholar and political theorist Gabriel Rockhill says about the West’s approach to fascism, to ideologically “transform[] the systemic into the sporadic; the structural into the singular; the conjunctural into the idiosyncratic.” But the records we obtain demonstrating the state’s own knowledge of material circumstances surrounding deaths in ICE custody, and how the state responds to those material circumstances (i.e. facts), show deaths in custody are not sporadic, singular, or idiosyncratic. They are systemic, structural, and conjunctural. That is to say they’re part of the plan of enforcing violent, racialized wealth accumulation through a system of global birth apartheid. Nothing more, nothing less.

Detained to Death

In the absence of the preliminary detainee death report about Mr. Daniel, we might get a glimpse into the failure by looking at what ICE most recently told us about the death of Senegalese migrant Ousmane Ba in Louisiana. ICE tells us CBP arrested Ba in near Lukeville, Arizona in Aug deathust 2023. He died February 23, 2024, in Louisiana. He’d been imprisoned at two private, for-profit ICE prisons prior to his death — CoreCivic’s Adams County Detention Center in Natchez, Mississippi, and LaSalle Corrections' Winn Correctional Center, which CoreCivic used to own before the company changed its name after journalist Shane Bauer got a job there and reported the death and depravity he saw inside.

ICE tells us Winn correctional transferred Ba to the Emergency Department in November 2023, which subsequently sent him to a higher level care facility. Instead of releasing Ba into the community after he got treatment, ICE sent him back from the hospital to be cared for by LaSalle at Winn—first instead an isolation room, then in general population. By January, medical providers discovered a mass on his lung. It took weeks to get him to an outpatient specialist appointment for a biopsy and seen by a pulmonologist. During this time, his health declined and he experienced documented pain and other alarming symptoms, according to the preliminary death report.

At the end of January 2024, Winn again referred Ba to the emergency department, where providers again sent him to a higher level care facility. He was in the ICU and required a host of test and operations through February, when he died.

Was Ba a flight risk while he was in the ICU? Was he a danger to the community? If not, why did the US government pay to detain him to death?

What was the purpose of the government keeping him in ICE detention during that time? The effect of it was likely to ensure that any waking moment he experienced prior to his death was dehumanizing as hell: Handcuffed to a bed. Supervised constantly by a private prison guard. Talked about, rather than spoken to. With decisions about life and death being communicated not between a family or care network, but between people and entities who are in business to profit from his detention.

So that’s some of what we might learn about what Mr. Daniel’s preliminary detainee death report may reveal from the last preliminary detainee death report ICE released. Except in Mr. Daniel’s case, we can expect all of these encounters to take place while the man with a final order of removal is locked in a cell by himself. Year after year. Suffering. While his captors profit and their clients successfully move to fund and grow the system that caged him.

At least six known in-custody deaths so far this fiscal year—more than any other in during Biden’s term. Half of the men who died are Black. Is that representative of the detention population as a whole? Of the population of people who violate immigration laws? Of the immigration population?

Like a broken record.

(by the way - this is not the new, experimental thing I teased about on social media. that’s coming later tonight as a video/podcast. stay tuned. and thanks, as always, for your readership, feedback, and support!)