Andrea Circle Bear wasn’t given a death sentence.
 
She plead guilty last year to maintaining a drug-involved premises. She was sentenced to 26 months in federal prison.
 
But shortly after being transferred from a jail in South Dakota to a federal prison in Texas, Circle Bear died of COVID-19 while in custody, just 28 days after giving birth via C-section while on a ventilator. The 30-year-old member of the Cheyenne River Sioux Tribe in South Dakota was the first federally incarcerated woman to die from COVID-19. 
 
Just how did a pregnant woman serving time for a drug offense get sent to a crowded federal women’s prison more than 1,000 miles away from her home?
 
A judge could have suspended her sentence and asked her to report to prison after giving birth. The Bureau of Prisons could have let her serve her sentence in home confinement.
 
But it’s not always that simple — in the criminal legal system generally, but especially in Indian Country.
 
For context, Indian Country is made up of 574 federally recognized tribes whose citizens live on 326 distinct Indian reservations spread across the United States. This federal recognition means that reservation lands are under federal jurisdiction supported by the Major Crimes Act, a U.S. statute that places certain crimes under federal jurisdiction if they are committed by a Native American on their homeland.
 
The result of this federal jurisdiction is that Native Americans, like Circle Bear, often face federal charges. Lesser crimes are under tribal jurisdiction. These court cases are prosecuted by federal prosecutors, held in federal courts, and presided over by federal judges, and, when and if they are found guilty, they are sentenced to federal penitentiaries. The result is that a disproportionate number of Native Americans are incarcerated in federal prisons. Native Americans make up less than 1 percent of the country’s population, but 2.3 percent of the BOP’s incarcerated population.
 
Circle Bear’s death is a startling wakeup call that shows the true cost of the U.S.’ obsession with mass incarceration during the COVID-19 pandemic.
 
That’s why the ACLU has put out a call for governors around the country, President Trump, and the BOP to release all pregnant people from prisons and jails who have less than a year remaining on their sentence. Doing so will mitigate the tragedy we’re facing and will benefit public health around the country, but it can’t change the fact that Circle Bear will never get to watch her newborn baby grow up.

Ruth Anna Buffalo, Representative, North Dakota,
& Kimberly Craven, Legal Director, ACLU of South Dakota, North Dakota and Wyoming

Being the daughter of two Haitian immigrants shapes not only how I move through the world, but how I come to this work as an immigration advocate. The choice my family made to come to this country charted the course of my future, because they saw the potential in America. They saw value in a country that was willing to give them an opportunity to start over. Like many immigrants, my family worked hard, studied harder, and built a foundation for me to be able to thrive in their new home. But we aren’t living in the US of late 1960s, where my grandmother chose to raise her children. In the last 30 years, our immigration system has undergone a shift that codifies bias and xenophobia, in the name of security and safety.

With the creation of the mega department, the Department of Homeland Security (DHS), immigration enforcement has its tentacles in all things. The need to protect the “homeland” has come right up against the bedrock of our contemporary immigration system, family reunification. Our story as Haitian Americans is rooted in family, with the majority of Haitian immigrants arriving to the US with a family member sponsoring them for a green card or vouching for them to receive a tourist visa. The rapid ability to sponsor a sibling, child, parent or spouse is what differentiates us from Canada and Western European models of migration policy. However, with each successive immigration policy change, adjudication manual revision or executive order, anti-immigrant advocates chip away at our family immigration system. For example, the recent public charge rule most impacts immigrants who are currently in the US, awaiting final adjudication of their conditional residence for their green card. The current expansion of the benefits deemed relevant for a public charge evaluation include food, housing, and medical assistance. With thousands of Haitian Temporary Protected Status (TPS) holders eligible for or awaiting their family petition, the new ruling puts their pathway to a permanent status in jeopardy. Not only is this public charge rule a threat to family-based immigration, it solidifies the argument that only wealthy “self-sufficient” immigrants are deserving of entrance or residence in this country.

Since the Immigration and Nationality Act of 1965 abolished the racist National Origins Formula quota system, each successive wave of immigrants has become browner and blacker as those from the Caribbean and Latin America were no longer excluded from emigrating to the US in large numbers. In 1966, my grandmother, like many Haitians, took advantage of this reform, which established our family-based immigration system’s focus on reunited immigrant families and attracting skilled labor of all kinds. For example, Haitians were able to get green cards based on their skills as mechanics, dressmakers, and students. As a result, Haitian Americans have become pivotal to South Florida’s culture, economy, and society. We are entrepreneurs, artists, cooks, doctors, taxi drivers, teachers, religious and community leaders.  

While previous generations of immigrants did not have to pass a wealth test, the 1990s brought new policies that focused on high-skill labor, the criminalization of immigrants, and bars to accessing the social safety net programs. Our over-criminalization of immigrants is the lasting legacy of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which made more people deportable and made it easier to deport permanent residents, particularly black immigrants from the Caribbean. Since 1996, we have seen a dramatic increase in detention at places like the infamous Krome Detention Center, increases in workplace raids, and xenophobic policies regarding who is worthy of full rights and liberties in the US.

As we sit in this moment during the global COVID-19 pandemic, we are operating under an immigration system that is criminalizing immigrant residents of our county for accessing benefits and services that can protect their families. There are Haitian American families, which are not monolithically single-status families, who are currently excluded from CARES Act relief checks. Moreover, given the current culture of fear, many immigrants are unsure of whether or not they can even apply for their unemployment benefits or get the food assistance they need to feed their families. And yet, at the same time, Haitians are serving as essential workers in our hospitals, supermarkets, and other public services. So I ask, this Haitian Heritage Month, that we honor our talent, sacrifice, and entrepreneurial spirit that is in the very DNA of Miami and that we continue to fight for our vision of America.

Krystina François is executive director of the Office of New Americans of Miami-Dade.

As governments the world over seek ways to jumpstart economic activity, one proposal is a so-called “immunity passport” that would allow certain people who test positive for COVID-19 antibodies to return to work before others. We at the ACLU have serious concerns about the adoption of any such proposal, because of its potential to harm public health, incentivize economically-vulnerable people to risk their health by contracting COVID-19, exacerbate racial and economic disparities, and lead to a new health surveillance infrastructure that endangers privacy rights.

An immunity passport system is fundamentally different from a regime whereby employers routinely test workers for COVID-19 or screen for symptoms, to ensure that no one with active infection is entering a workplace. In the latter system, only contagious workers are prevented from going to work and only for the period of time in which they are contagious. Every worker is subject to the same screening rules. But an immunity passport system would divide workers into two classes — the immune and the non-immune — and the latter might never be eligible for a given job short of contracting and surviving COVID-19 if an immune worker is available to take the slot.

To start, the science does not yet justify the use of immunity passports or certificates. The World Health Organization has stated that we do not yet know the level of protection that COVID-19 antibodies (which show that someone was previously infected with the virus) provide against reinfection, nor do we know how long such protection might last. There are also ongoing questions about the accuracy of various COVID-19 antibody tests, with more than a dozen such tests currently on the market producing inaccurate or inconsistent results. Even small error rates could make reliance on antibody tests unworkable, or dangerous for those workers who get a false positive for antibodies. Given the lack of scientific support for reliable immunity determinations, no significant policy decisions should currently be made on the basis of presumed immunity.   

But even if we eventually were to gain confidence that individuals with COVID-19 antibodies may have immunity from reinfection for some period of time, there are serious civil liberties and civil rights harms from making workplace decisions on that basis. The widespread use of immunity passports by employers could create perverse incentives to contract COVID-19 for people who are the most economically insecure, as happened with a past outbreak of yellow fever in the United States. These incentives will be especially hard to counteract if immune workers are given preferential treatment in hiring or higher wages. The following are a few additional considerations that policymakers and private actors should consider.

Exacerbating Racial Disparities and Disproportionately Harming People with Disabilities

In the U.S., immunity passports could exacerbate existing racial disparities, harming workers of color and people with disabilities in particular. As COVID-19 data continues to be published, we are seeing stark racial disparities in who is being hospitalized or dying from COVID-19. New York City, for example, has had a disproportionate number of Black and Latinx people die from COVID-19. In Georgia, over 80 percent of those hospitalized have been Black. 

The industries most likely to adopt any immunity system will be those deemed essential and those in which employees cannot work from home — including health care, caregiving, food production and food service, emergency services, sanitation, transportation, and delivery — the very industries that employ many immigrants, workers of color, and women, often for low wages and without paid sick leave. One study showed that Black and Latinx workers are overrepresented in jobs that cannot be done remotely. Workers of color, in particular women of color, and low-income workers are therefore disproportionately likely to be affected by a workplace immunity passport policy than white-collar workers who have continued to earn an income through remote work.

Communities of color, including Black, Latinx, and Indigenous communities, already face health disparities due to socioeconomic barriers, including inequity in access to testing, treatment, and high-quality care. They are therefore more likely to have higher rates of the health conditions that increase the risks of COVID-19. As a result, it is foreseeable, maybe even inevitable, that an immunity passport system, with all its attendant pressures on workers to acquire immunity, would result in disproportionately more illness and death among people of color in the U.S. It would disproportionately harm all workers who have disabilities that put them at greater risk of severe illness or death from COVID-19.

There is also a risk that employers will prefer to hire workers with immunity than devote resources to across-the-board safety precautions that protect all workers and the people they come into contact with. Even if the accuracy of antibody tests improves, any workers who falsely test positive would remain at risk, as might those with lesser or waning immunity. Since so much remains unknown about the virus, the use of immunity passports could lull a workplace into an unjustified sense of security that it need not implement appropriate protocols against transmission of COVID-19.

Privacy Harms from a New Health Surveillance Infrastructure

Any immunity passport system endangers privacy rights by creating a new surveillance infrastructure to collect health data. It is one thing for an employee to voluntarily disclose their COVID-19 status to an employer on a one-off basis. But it is another for that information to be collected and retained, either by the government or by private companies offering immunity certifications, depending on how any immunity passport system in the U.S. is implemented. The ACLU has warned against the use of location-tracking technologies that will enshrine ever-greater data collection and surveillance without commensurate public health efficacy or benefits. It is unclear whether a persistent health surveillance infrastructure could protect anonymity and health privacy while also ensuring that uploaded testing data is authentic.

The existing legal framework may not be sufficient to prevent this information from being shared, especially if it is held by private entities. Many members of marginalized communities, including immigrant communities, might have reason to fear that their health status information will be used for law enforcement or immigration purposes, or to affect government benefits or health insurance. Once an immunity surveillance infrastructure is created for one purpose, there may be mission creep and moves to expand it into other contexts — such as by conditioning certain travel or access to housing on COVID-19 immunity. As a result, immunity status may be stored with other personal details, such as travel, employment, or housing information, heightening the intrusiveness of an immunity passport system. 

As tempting as immunity passports may be for policymakers who want a quick fix to restart economic activity in the face of widespread suffering from the COVID-19 pandemic, they present both public health and civil rights concerns that cannot be overlooked. Immunity passports incentivize vulnerable people to contract the disease, and raise the prospect of another hierarchical system, separating us into two categories — those with COVID-19 immunity, who are given preferential access to employment, housing, or public accommodations — and those without. This division would likely worsen existing racial, disability, and economic disparities in America and lead people struggling to afford basic necessities to deliberately risk their health.

Until there is a reliable, affordable, and widely accessible treatment or vaccine for COVID-19, employers must maintain best practices to protect workers and reduce COVID-19 transmission in workplaces. Instead of expending resources on the development of immunity passports, policymakers should focus on the implementation of widespread, free, and quick testing for COVID-19, without creating a new privacy-invasive data infrastructure that threatens everyone’s rights. There are better ways to both advance public health and protect individual rights that we should focus on in order to emerge from this crisis.

Esha Bhandari, Senior Staff Attorney, ACLU Speech, Privacy, and Technology Project,
& ReNika Moore, Director, Racial Justice Program, ACLU