Judges Rule Detained Migrant Children Entitled to Soap, Toothpaste

Update - August 16, 2019:

• A California appeals court has ruled that detained immigrant children must be provided with soap, clean water, toothbrushes, and edible food.
• In June, the Trump administration argued in court that "safe and sanitary" conditions - required by the 1997 Flores settlement - may not necessarily mean that a toothbrush and soap are provided for detained immigrant children during short stays, and that the children could be allowed to sleep on concrete floors.
• A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected this argument, ruling:

"Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep-deprived are without doubt essential to the children's safety," wrote Judge Marsha S. Berzon, a Clinton appointee.

• The Justice Department declined comment.

Countable's original story appears below.

What’s the story?

• The Trump administration has argued in court that sanitary conditions for detained immigrant children may not necessarily mean that a toothbrush and soap are provided for shorter stays, and that the children could be allowed to sleep on concrete floors.
• Jenny Lisette Flores v Edwin Meese, more commonly known as the “Flores decision,” established that detained immigrant children must be provided with “safe and sanitary” living conditions.
• In a Court of Appeals hearing in San Francisco on Tuesday, Sarah Fabian, a senior litigation counsel for the Justice Department, challenged a 2017 ruling which found that Customs and Border Protection (CBP) authorities had violated Flores by failing to provide some detainees with soap, toothbrushes, towels, and adequate food and drinking water.
• Fabian argued that Flores failed to provide specifics as to what items must be provided to detained children to ensure “safe and sanitary” conditions are met—including a toothbrush, soap, and non-concrete sleeping area.
• “One has to assume it was left that way and not enumerated by the parties because either the parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” Fabian said.
• “Or it was relatively obvious,” U.S. Circuit Judge William Fletcher shot back. “And at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum-foil blanket on top of them that it doesn’t comply with the agreement.”

The exchange:

“You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?'” U.S. circuit judge Marsha Berzon asked Fabian.

Fletcher added: “Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket? I find that inconceivable that the government would say that that is safe and sanitary.”

Fabian: “I think there’s fair reason to find that those things may be part of safe and sanitary…”

Judge Fletcher interrupted: “Not ‘may be.’ Are a part, why did you say ‘may be’?”

What do you think?

Does “safe and sanitary” include soaps, toothpaste, and a non-concrete bed? Or did Flores leave it up “to the agencies to determine”? Take action and tell your reps, then share your thoughts below.

—Josh Herman

(Photo Credit: Department of Homeland Security)