A Poverty Expert Explains How We Make It a Crime to Be Poor

Officially, the United States ended debtors’ prisons in 1833. Unofficially, as we saw in the Justice Department’s report on racially biased policing in Ferguson, there is a system of fines and fees for minor crimes that often result in jail time for the poor, mostly black citizens who cannot afford to pay them.

To provide more context on the issue, I talked with Peter Edelman, Georgetown University law professor and former staffer for Robert F. Kennedy and Bill Clinton, about his new book Not a Crime to be Poor: The Criminalization of Poverty in America.

Rebecca Vallas: So, just to start off, what got you interested in writing this book?

Peter Edelman: I’d been working on poverty issues for long time, and I thought I’d kind of seen everything. But when it came out that Ferguson’s budget was based on hauling everybody into court and whacking them with these huge fines and fees, it got me interested. I realized this is really something that people need to know more about than they do.

RV: Part of what you did to research for the book was to speak with an array of lawyers who represent clients facing these problems. (In full disclosure, I’m one of those people you spoke with in my capacity as a recovering legal aid lawyer who used to represent these clients.) Would you mind sharing one of the client stories that came up in your research?

PE: Absolutely. Vera Cheeks, who’s a resident of Bainbridge, Georgia, was pulled over and ticketed for rolling through a stop sign. The judge hit her with a $135 fine—which in this business is a relatively small one—and ordered her to pay in full immediately. She told him she was unemployed and caring for her terminally ill father and had no money.

If you’re low-income and charged with a crime, you’re supposed to get a lawyer. And 43 states are charging money for it.

The judge said he would give her three months of “probation” to pay up, and he sent to her a room behind the courtroom where Cheeks says, “There was a real big lady, and there were cells on both sides of the room and there was a parade of people paying money to the lady. They were all black. It was like the twilight zone, totally mind-boggling.”

The woman said Cheeks now owed $267; the fine, plus $105 for the for-profit probation people, and $27 for the Georgia Victims Emergency Fund. The woman put a paper in front of Cheeks and told her to sign it. Cheeks said she would not. The woman said, “You’re refusing to sign the paper? I’m going to tell the judge and put you in jail for five days.” Cheeks still refused and finally the woman demanded $50 or else Cheeks would go to jail right then. Cheeks’ fiancé, who was at the courthouse, raised the money by pawning her engagement ring and a lawn implement.

She avoided jail, but Cheeks remained at risk of being locked up if she was late with even one payment.

RV: You mentioned that this practice first drew serious national attention after the killing of Michael Brown in 2014, which cast eyes, nationally, on Ferguson. But not only was this not a new phenomenon, it has not been restricted to Ferguson. I personally saw something very similar play out in Philadelphia when I was still working in legal aid. What’s the story behind the rise of fines and fees? You’ve put a face on the issue for us, but what’s driving what has really become a national trend?

PE: Well, you could say Grover Norquist. It’s the anti-tax rebellion that goes back quite a bit in the past, certainly a couple decades or more. Municipalities just didn’t get the money they needed to run their government, so they turned to going after people who were essentially defenseless because there aren’t anywhere near the number of lawyers that we need. And then you get added to that the broken windows.

RV: You’re referring to broken windows policing.

PE: Yes, absolutely. There was this belief that if we brought people in on junky little stuff, that would clean up the city. The big source of it that they use around the country is driver’s license suspensions. In California, for example, 4 million people just a couple years back had lost their licenses. They didn’t actually throw them in jails, like they do in many, many other places in the country. But they could take it out of their paycheck or their tax return. And so California was making billions of dollars going after these people.

And they don’t take away the driver’s license only for something you did when you’re driving. They do it for a lot of different things.

RV: People may be most familiar with traffic violations, but your book looks at a whole other range of types of fines and fees that states and localities are now leveeing on people, largely black and brown, largely low-income populations, some of which are particularly shocking. For example, you expose in your book that in 43 states people are actually charged for exercising their right to counsel if they need a public defender.

PE: That shocked me. It was a terrific study done by Joe Shapiro of NPR. It doesn’t compute, right? If you’re low-income and charged with a crime, you’re supposed to get a lawyer. And 43 states are charging money for it.

RV: Well, you’re a recovering lawyer, too. How is this not unconstitutional?

PE: Well, it is. But it’s got a combination of weasel language in the Supreme Court case, and it’s also so prevalent you would need the legislature to fix it and they want the money. And to sue in each instance is just very difficult, so there it is. The judge says, “Looks like you got a nice tattoo on your arm there, so you must have the money to pay for the lawyer or pay for the fine,” or, “You’ve got these fancy shoes and so you’re able to pay.”

RV: Wrapped up in this is effectively a vicious cycle. The people that you’re profiling in this book begin without having actually committed any crime, and it never ends just because they are poor and can’t afford to get out from under a debt.

PE: Well, this raises money bail, because it’s a major player in all of this. So, as you said, someone who’s innocent, but has allegedly done some very small-potato thing. Nonetheless, bail is set at $500 or $1,000, and they don’t have it and they can’t get it. So how do they get out of jail? They plead guilty even though they’re not. Then they get a payment plan. And then they can’t pay it.

At that point, when they haven’t paid it and they have pleaded guilty, it’s a whole new violation. They owe the criminal debt; they didn’t pay so they’re back in jail again. There’s another bail deal. There’s more money that they owe. It goes on and on and on.

RV: I think it’s helpful sometimes to put concrete examples to “small potatoes offenses.” Things like laws against public urination. There is also a different kind of subset of what I think of as the criminalization of survival, where we criminalize the types of behaviors that people need to engage in to scrape by. This is one of the stories I shared with you for your book—one of my own clients had sold blood platelets to a blood bank to supplement her family’s income from food stamps and disability benefits, because it wasn’t enough to live on. She ended up being charged with what’s known in public assistance jargon as an IPV, an intentional program violation, which can itself bring criminal penalties.

PE: Yes, it’s not just the fines and fees and the money bail. There’s issues with vagrancy Vagrancy laws make it a crime for someone to be 'without visible means of support or domicile.' In practice, these laws are used to criminalize homelessness or loitering in public spaces. and you can’t sleep in a car and you can’t sleep standing up and you can’t sleep lying down. Instead of having mental health services and housing to help people, they just tell them to get out of town. There’s a man in Sacramento who I talk about who had mental health issues. He was arrested 190 times.

RV: 190 times. So, we’ve talked about a lot, but I’m curious what shocked you the most in doing research for this book.

PE: The one that really got me are chronic nuisance ordinances. For example, say a woman calls 911 to get protection from domestic violence. If it happens two or three times, the police have been given the power to say to the landlord, “This woman is a chronic nuisance, and you have to evict her.” And it’s just totally shocking.

So how do they get out of jail? They plead guilty even though they’re not.

Now the good news is the ACLU in various parts of the country has found or been found by the person who has been hurt in this way, and won lawsuits. In Pennsylvania, both the local town and the whole state changed their laws.

RV: I mean it sounds like common sense that a domestic violence survivor shouldn’t be punished for experiencing domestic violence. It is sort of astounding to think that litigation could be necessary to make that the law of the land.

PE: It’s stunning.

RV: Your book argues powerfully that we need to be addressing these problems. But we also can’t miss the fact that addressing these problems is part of a larger anti-poverty agenda.

PE: That’s the last third of the book. It is about seven places that I visited and met the people doing the work. They’re organizers and they’re people who help families in a variety of ways, whether it’s early childhood or mental health support or the Promise Neighborhoods that President Obama started.

If we’re serious, we certainly have to have de-carceration. And Lenore Anderson in California with Prop 47, they’ve done the best job in the country and they’re the first ones to tell you that it’s not going to work if people get out but they’re homeless or they can’t find a job. They’re going to be back in. So, one way to look at it is it’s not going to work if we don’t actually attack poverty itself.

RV: There’s obviously a lot at stake under the current administration. There is a lot of real fear on the part of communities as well as advocates working on these issues who had been seeing a tremendous amount of bipartisan agreement and momentum up until the election when it came to criminal justice reform, and obviously now there’s not a lot of hope on that front at the federal level. But it sounds like you’re arguing for there being a lot to be done at the state and local level in the meantime.

PE: The action is heavily, mostly at the state and local level. Some of the things are suing in federal court and when you get up to the Supreme Court if you don’t have the five votes then that way of doing it doesn’t work. But that’s going and meanwhile all of these things that are happening at the local and state level and that’s now for example the chief justices and chief judges of all of the state systems as a group are strongly speaking about the fines and fees and not that long ago, ten years or so, they were talking about how “what a nice thing it is that we were getting money.” And then somebody said, “Wait a minute, that’s not right.”

This interview was conducted for Off-Kilter and aired as part of a complete episode on October 13. It was edited for length and clarity.



The Latest Senate Tax Plan Will Open the Arctic for Drilling

This week, the Senate plans to vote on the fiscal year 2018 budget bill that would clear the way for tax reform. If the bill is going to pass, Republican senators will need at least 50 of their 52 members to vote in favor of the budget; with four senators undecided, and the sting of the failed Affordable Care Act repeals still fresh, Congressional Republicans cannot afford to lose any votes. So, the bill includes a powerful sweetener.

The reconciliation instructions for the Senate budget order the Senate Energy and Natural Resources Committee to generate $1 billion in revenue. That’s not much in federal budget terms, but to Sen. Lisa Murkowski (R-AK)—the chair of the committee and one of the Republican “no” votes who scuttled the Obamacare repeal efforts—it looks an awful lot like long-awaited permission to open up the Arctic National Wildlife Refuge (ANWR) for drilling.

Why do these instructions mean we’d start drilling in the Arctic Refuge?

The language in the Senate budget is vague: It simply instructs the Energy and Natural Resources Committee to find a way to generate an additional $1 billion in revenue. But Senator Murkowski has made it known that the revenue would be raised by selling oil leases in the Arctic Refuge.

Like her father, Sen. Frank Murkowski (R-AK), did before her, Murkowski has taken opening up the Arctic Refuge to drilling as one of her core fights. She and fellow Alaskan Sen. Dan Sullivan (R) have previously introduced legislation that would allow oil and gas development on 2,000 acres of the Refuge’s coastal plain. At this point, Murkowski is pretty flippant about it: “You know me, I’m always trying to advance ANWR,” she said last month.

If the Energy and Natural Resources revenue request passes with the budget, the Senate could attach legislation opening the Refuge to drilling in its tax reform bill, which they plan to pass through reconciliation. That means the bill would only need a simple majority, rather than the regular 60 vote threshold. That’s crucial, because past attempts to open the Arctic for drilling have failed—once during the Clinton administration when it was vetoed by the president and again in 2005 when Sens. John McCain (R-AZ) and Susan Collins (R-ME) voted against it.

The lower vote threshold, combined with the fact that the provision is attached to tax reform—which Congressional Republicans and the administration need to pass—hands Murkowski something she likely wouldn’t be able to get through a normal legislative process.

Alaskan Native communities rely on the Refuge.

Why does it matter if we drill in the Arctic?

The Arctic National Wildlife Refuge was set aside for protection by President Dwight D. Eisenhower more than 50 years ago, and it’s often referred to as “America’s last great wilderness.” The coastal plain, where drilling would occur, is considered its “biological heart.” The infrastructure, rigs, pipelines, roads, and machinery required in industrial-scale drilling operations would put the 37 species of land mammals, eight marine mammals, 42 fish species, and more than 200 migratory bird species within the Refuge at extreme risk of permanent habitat destruction.

Further, Alaskan Native communities rely on the Refuge. The Gwich’in people have inhabited this region for generations and depend on the health of its land and wildlife for food, clothing, and cultural survival. The Porcupine caribou herd, which primarily breeds on Alaska’s coastal plain, is a staple for the indigenous Gwich’in people. Their way of life would be irreparably changed if oil and gas interests are able to open the area to development.

And those are just the problems that arise if everything goes according to plan.

Drilling in any part of the Arctic is risky. The 1989 Exxon Valdez oil spill, which dumped 11 million gallons near Prince William Sound, caused widespread damage that wildlife communities still have not recovered from. More recent attempts to explore Arctic drilling haven’t shown much improvement—Royal Dutch Shell’s $7 billion Arctic Ocean oil exploration program was abandoned after the company’s oil containment dome was “crushed like a beer can” during testing. And that failure was during “calm, tranquil conditions in the best time of year,” raising serious concerns about Shell’s ability to prevent an oil spill in more turbulent conditions.

It’s not even enough revenue to cover the costs of President Trump’s personal tax cut.

But isn’t it important to drill there as a revenue-generator?

One reason the Alaskan congressional delegation wants to open the Arctic Refuge is to put money into Alaska’s Permanent Fund, which pays out annual dividends to Alaska residents from oil and gas production in the state. The trouble is, the Refuge is not nearly the cash cow that drilling proponents make it out to be.

A Center for American Progress analysis found that offering oil and gas leases in the Arctic National Wildlife Refuge is likely to yield a maximum of $37.5 million in revenue for the U.S. Treasury over the next 10 years—less than 4 percent of the $1 billion that Senate drilling proponents claim could be raised, and 0.01 percent of the increased deficit in the tax bill. It’s not even enough revenue to cover the costs of President Trump’s personal tax cut under the Senate Republican plan.

The upcoming debate in Congress about whether to sell out the Arctic Refuge is not actually about budgets or taxes. The caribou of the coastal plain are not grazing atop a pot of gold. Americans should see the Arctic Refuge drilling rider for what it is: a blatant attempt to buy Senator Murkowski’s vote.



For the Cost of Repealing the Estate Tax, Congress Could Buy Everyone in America a Pony

You know how you’ve always wanted a pony? How as a child you dreamed of feeding carrots and sugar cubes out of the palm of your hand to a little chestnut-colored horse named Maple?

It may sound fanciful to adults, but President Donald Trump and Republican leaders in Congress put together a wish list of tax cuts for the wealthy that are far more extravagant than ponies. It turns out for the cost of just one of these tax cuts—repealing the tax on wealthy estates—we could literally buy every single American a pony.

A lovely little Shetland pony, specifically. For all 325 million of us. In fact, the benefits Trump’s own adult children could get from his estate tax repeal would fund nearly 1.4 million ponies—that alone is enough to cover giving a pony to everyone in the state of Maine.

Let’s break down the numbers. Shetland ponies range in price from $300 to $1,500. We’re not lavish people, but we also don’t want to buy a cut-rate horse, so we assumed $800 per pony (and, of course, that there are enough ponies to go around). The larger expenses are the continuous costs of keeping our ponies healthy, active, and thriving: Every year our ponies will need lodging ($2,400), food ($1,200), and visits from the vet ($300) and farrier ($500).

These are sizeable expenses; on average, purchasing and caring for a pony will cost about $44,800 over 10 years. But the Senate is already considering a budget that includes a far more sizable expense: $1.5 trillion over 10 years in higher budget deficits for tax cuts that will mostly benefit the wealthy.

If Congress abandoned its tax cuts for millionaires and wealthy corporations, it could use that $1.5 trillion to purchase and care for a pony for roughly every American child ages 8 and below. Given the current dynamics in the United States—where economic inequality is skyrocketing and My Little Pony: The Movie is now playing in theaters—giving ponies to children is probably a more appropriate policy response than giving tax breaks to millionaires.

1 in 4 families will actually see their taxes rise under his plan.

Alternatively, instead of providing tax cuts for millionaires or ponies for children, lawmakers could also use $1.5 trillion in many other ways to create jobs, reduce child poverty, end homelessness, make college free, or provide paid family leave.

In reality, of course, average Americans will miss out on the pleasures of ponies. A lot of them will even miss out on the tax cuts Trump is promising: 1 in 4 families will actually see their taxes rise under his plan by 2027, while 80 percent of the tax cuts go to households in the top 1 percent. Those tax cuts for the wealthy are enormously expensive, and Congress cannot enact them without severe trade-offs.

Like the continuous costs of pony upkeep, maintaining America’s economy requires ongoing investments—in education, in transportation, in research and scientific innovation. Yet as we’ve seen time and again, when policymakers slash tax revenue by giving handouts to the rich, they turn around and cut these very investments by complaining that we can’t afford them. And policymakers have made no secret that that’s what they plan to do: Trump’s budget gets two-thirds of its draconian spending cuts by slashing programs that serve low- and moderate-income families, to the tune of $2.5 trillion over a decade.

At a time when 44 percent of Americans couldn’t come up with $400 in an emergency—and 9 in 10 prefer economic stability to greater economic mobility—Americans aren’t asking for ponies, presents, or parades. And they’re really not asking for massive tax cuts for millionaires, billionaires, and corporations.

Seventy-five percent of Americans agree that “the wealthiest Americans should pay higher tax rates.” President Trump and Congressional Republican leaders want to give away the horse, the cart, and the country’s future to the rich, leaving little or nothing for the rest of us.


First Person

How a Mass Shooting Made My Town Advocates for Gun Safety

My rough, unscientific estimate is that we are about three-quarters of the way through the national grieving process for Las Vegas. Americans are pretty familiar with the rhythmic mourning of mass shootings: Widespread shock, political chest-beating, internet rage, and then silence. Then our wounds start to heal and the nation moves on, leaving the thousands of people who were injured or lost someone they loved to recover on their own. Those individual broken hearts will keep bleeding for years—many, like mine, will burst open again every time there’s another shooting.

My mind still flashes back to my hometown every time news of a shooting breaks, even though Tomasz was killed almost five years ago. It was early on Christmas Eve in 2012 when a man set his family home on fire and shot the firefighters who responded to the blaze from a berm across the street. He used the same model of assault rifle that was used in the Sandy Hook massacre two weeks earlier.

I found out Tomasz was dead on Twitter. I had been watching footage of my town burning for hours, hoping that I didn’t know the people who had been killed. Then a local reporter tweeted a picture of a piece of notebook paper where she had scrawled the names of the victims. She spelled Tomasz’s first and last name wrong, with “ch”s where there should have been “z”s and “k”s, but that felt almost appropriate. His Polish name had confused people for his entire life—at least 25 percent of people responded “bless you” when he introduced himself, and when teachers struggled with the pronunciation during roll call his entire class used to shout his name in unison.

Our town was never particularly pro-gun, but after Tomasz was murdered we became fierce advocates for gun control. And about three weeks after his death, New York State had a new gun-control law to show for it—with a special provision that makes the penalty for murdering a first responder life in prison without parole. It was lauded in New York City, and Albany, and even my hometown, but once you step over the county line, “Repeal the SAFE Act” signs dot the front lawns. There, the law is viewed with a mix of indignation and hostility—an encroachment on a centuries-old way of life of people who genuinely don’t believe their guns are part of the problem.

I’m a product of that side of the county line, too. My grandfather taught me and my brothers how to shoot tin cans and milk jugs before Thanksgiving dinner when I was ten years old. He thought of guns as a tool, and grumbled instructions with the same matter-of-fact directness he used when he taught me how to change an alternator. I’m still not a great shot—I hit low, because I drop my arm—but I’m competent. That was important to my grandpa—he respected that my brothers and I were nervous nerds, but he needed us to be able to fend for ourselves.

Grandpa made the only joke I ever remember him telling during that shooting lesson. One of my little brothers was telling a story, and—forgetting that there was a pistol in his left hand—he flailed his little eight-year-old arms towards Grandpa’s torso while his index finger was still on the trigger. My grandfather pushed the barrel of the gun back toward the ground and flipped the safety on before chuckling, “Be careful where you point that thing—my flesh is very tender, and doesn’t much like being shot.”

That power—the power to kill—is a thing white Americans feel entitled to.

That’s the thing about guns—no one much likes being shot. But last year, 33,594 Americans were killed by guns—5,000 more than the number of people who died from prostate cancer. We’ve changed the way we practice medicine to make sure those cancer patients get the treatment they need—but guns, not so much.

The trouble with guns is that they were designed to kill, and they do it more readily than anything else we’ve created for the job. Even people who grew up with them—who think of them as tools, and respect their inherent danger—know that. That’s why they were written into our constitution, and that’s why we cling to them. It’s because that power—the power to kill—is a thing white Americans feel entitled to.

And it is, to be clear, white (mostly male) Americans who are worried about our guns. We are 80 percent more likely than black Americans, and 157 percent more likely than Hispanic Americans, to prize gun access over gun safety. That level of concern spiked right after Obama was elected, and in the years following the top reason gun owners cited for having a weapon switched from “hunting” to “safety.” That’s also when, as Bill O’Reilly put it, white folks started to realize that it might not be “a traditional America anymore.”

Over the centuries, white Americans have felt entitled to a lot. We’ve felt entitled to usurp land, and to lay waste to human bodies, and to enrich ourselves by exploiting others. We have been forced, very slowly, to recognize that those things aren’t our right. None of it has been graceful—we fought wars for land and slavery, rioted for segregation, and elected a white supremacist in response to our first black president—but eventually we can shake this part of our history loose, too. Just because guns are a part of our legacy, that doesn’t mean they have to be a part of our future.

I have to believe that we can realize that. Because the alternative—that we keep bleeding American lives just to prove that we can—is too gruesome to bear.




Pregnant Immigrants Say They’ve Been Denied Medical Care in Detention Centers

According to Jennye Pagoada López, when she arrived on July 23 at the US-Mexico border, she was four months pregnant and bleeding. Seeking political asylum, Pagoada hoped to finally put an end to nearly 20 years of violence she and her family had suffered at the hands of the notorious gang Barrio 18—first in Honduras, then in El Salvador.

But instead of finding a new life in America, Pagoada was detained shortly after crossing the border and then sent to the Otay Mesa Detention Center in San Diego. Six days later, Pagoada says, she suffered a miscarriage, after being denied proper medical care. US Immigration and Customs Enforcement (ICE) claims she was never pregnant while in their custody.

The detention of pregnant women is a growing concern among immigrant rights groups. On September 26, a coalition of seven groups, including the American Civil Liberties Union and the Women’s Refugee Commission, filed a complaint with the Department of Homeland Security (DHS) regarding the treatment of pregnant immigrants. The complaint cites media reports that 292 pregnant women were detained by ICE in just the first four months of 2017, a 35 percent increase compared to the same period in 2016.

The signatories write that they are “gravely concerned” with the conditions reported by pregnant women detained across the country, and with “the lack of quality medical care” provided. “In several of the cases, there is concern that women are receiving inadequate and sub-standard medical care during and after miscarriage,” the complaint reads. “In every instance, the women express concern that the conditions of their detention and pressure of preparing for their legal cases in detention has had a harmful impact on their pregnancies.”

The groups argue that these detentions contradict ICE’s own policy. An August 2016 ICE memorandum authored by the current acting director of the agency, Thomas Homan, instructs that “pregnant women will generally not be detained” unless there are “extraordinary circumstances or the requirement of mandatory detention.”


When Pagoada turned herself in at the San Ysidro Port of Entry, she expected to be released in accordance with this policy. She was escorted to the border by Luis Guerra, a legal advocate with the United Farm Workers Foundation. Advocates say they have repeatedly witnessed Customs and Border Protection (CBP) telling immigrants that “political asylum doesn’t exist” and turning them away. As a result, immigrant rights groups were redoubling efforts to ensure that when people like Pagoada arrived, someone was present to help them obtain their legal right to claim asylum.

Guerra says that both he and Pagoada informed the CBP officers that she had a high-risk pregnancy and should receive immediate parole and access to medical care. Three days later, he learned that Pagoada was being held by ICE at Otay Mesa. Guerra and Allegra Love, an attorney with the Santa Fe Dreamers Project, asked that Pagoada be taken immediately to a hospital for prenatal treatment. She had continued complaining of vaginal bleeding as well as stomach and lower back pain. Love again cited the August 2016 ICE memorandum and said the facility was violating its own policy. “I sent the request to every officer who could possibly have influence on her case,” says Love. “I was ignored.”

Pagoada told her attorneys that on her sixth day at Otay Mesa the medical staff said she wasn’t pregnant. According to ICE spokeswoman Lauren Mack, “All of the appropriate protocols were followed and the medical tests did not support [Pagoada’s] claim that she was pregnant” while in the agency’s custody. Love disputes this assertion, noting that the test results were never communicated to counsel despite repeated instances of her and Guerra advocating for Pagoada’s prenatal care.

Pagoada’s case is among the ten included in the complaint filed with DHS, as are those of five women who were detained in the South Texas Family Residential Center (STFRC) in Dilley, Texas. Katy Murdza of the CARA Pro Bono Project has worked at STFRC as the advocacy coordinator for the past four months. Until recently, Murdza says, most pregnant women were released immediately at the border or within 24 hours, and would then receive a date to go before an immigration judge. This approach didn’t mean that the women got “a free pass to live in the US forever, or that they won asylum. It just meant they would go before an immigration court at a later date,” says Murdza. The majority of women who are released live with family or friends—a healthier environment than detention and also far less costly to taxpayers than detention.

In June, the Trump administration scrapped an Obama-era case management program offering alternatives to detention, which had a 99 percent compliance rate with immigration court appearances at a cost of about $36 a day per family. Since then, Murdza says, the number of pregnant immigrants detained at STFRC has risen. “Now we’re seeing about one pregnant person per day, and thirty since mid-August,” she says. “Almost none of these folks are paroled quickly anymore.”

Murdza describes pregnant women struggling with various kinds of stress and trauma in detention. Some are in the US because they are fleeing torture, abuse, or rape (and in some cases learn in detention that their rape resulted in pregnancy); some are trying to care for their children who are also struggling with detention and recent trauma; some have miscarried in the past due to stress or depression, and now fear a repeat due to their current circumstances; and there is little rest since detainees are sharing rooms with so many people, many of whom are sick.

Then there is an overlying stress for all pregnant asylum seekers: they face an interview to determine if they have a “credible fear” of returning to their birth country. Flunk that test, and they can be deported to the country that they just escaped.


Pagoada’s credible fear interview occurred one week after her miscarriage, according to Love and Guerra. They claim that at the time of the interview, she still hadn’t received proper medical care, was severely depressed, and had had only one visit from a counselor—to determine if she was suicidal.

According to Guerra, Pagoada experienced numerous traumas prior to seeking protection from the United States; they include multiple sexual abuses, one perpetrated when she was an adolescent living in Honduras by her stepfather who had ties to Barrio 18, according to Guerra. At that time, the family reported Pagoada’s stepfather to the police but he escaped custody. Shortly thereafter the death threats began, and a cousin who shared her surname was kidnapped and murdered. Pagaoda and her mother fled to El Salvador, while her brother remained behind and worked.

In El Salvador, Guerra says, Pagoada received phone calls extorting her to pay protection money or she and her brother would be killed. Late last year, her brother joined Pagoada and their mother in El Salvador. Within a few days of his arrival, members of Barrio 18 tortured him and mutilated his body. Pagoada and her mother were only able to identify him by a tattoo of the mother’s name. After fleeing for Mexico, they were still unable to escape violence. Staying at a shelter, Pagoada was assaulted by a man that they feared also had ties to the gang. When she learned she was pregnant, Pagoada decided to seek asylum in the US, hoping she would finally rid her and the baby she was expecting of the violence that had long plagued her.

But the asylum officer declined to find that Pagoada had a “positive credible fear” of returning to her birth country, and so she was scheduled for “removal.” Guerra believes that determination was due to the fact that Pagoada focused only on her most recent trauma—her brother’s murder—in the interview. With just one day until her deportation, Guerra and Love successfully obtained a second interview for her, saying that she had not been fit “medically, physically, or emotionally” for the first interview, and that she had not been able to tell her entire story. This time Pagoada talked about her life in Honduras, and the officer determined she had a “positive credible fear” of returning there.

Guerra and Love argue that the determination—along with the fact that she isn’t a flight risk and doesn’t pose a threat to public safety—again suggest that Pagoada should be released under ICE’s own guidelines. But nearly three months since she came to the country seeking asylum, Pagoada remains in detention. Pagoada says that she still needs medical care—she is suffering from depression, frequent headaches and vomiting, and numbness in her face. According to Guerra, as of October 1, she still hadn’t seen a doctor outside of Otay Mesa, despite repeated assurances that she would be able to do so. ICE maintains that like every detainee, Pagoada received a screening by medical staff to determine medical, dental, and mental health status within the first 12 hours of arrival into the detention facility; according to ICE, detainees are referred to off-site specialists as determined by their on-site primary care providers.

An ICE spokesperson says the August 2016 memorandum stipulating that pregnant women will not be detained absent extraordinary circumstances remains current policy. But advocates see evidence of a new, brutal era in immigration enforcement. “This is about the Trump Administration making it as hard as possible for immigrants to come here, even for pregnant women seeking political asylum,” says Love.

The Department of Homeland Security’s Inspector General and Officer for Civil Rights and Civil Liberties are responsible for investigating the complaint filed on behalf of Pagoada and the nine other women. Regardless of the outcome, for Pagoada that investigation is too little, too late.

This article was produced in partnership with The Nation.

Correction: An earlier version of this article referred to “Barrio 18” as “MS-18.”