Editor’s Note: An earlier version of this post stated Colorado Governor Polis walked back his statement that incarcerated people shouldn’t be prioritized for vaccination. The governor did no such thing and the post has been updated to reflect this. We continue to urge the governor to reconsider and protect the rights of everyone in his state, including the incarcerated.

Governor Jared Polis of Colorado — otherwise a trailblazer when it comes to criminal legal reform — recently said, “There’s no way [the COVID-19 vaccine] is going to go to prisoners before it goes to the people who haven’t committed any crime.” Governor Polis’ instinct to throw incarcerated people under the bus is sadly typical, and we shouldn’t allow sentiments like that to poison the national discussion around vaccine access and distribution.
 
Following the U.S. Food and Drug Administration’s approval of a COVID-19 vaccine, the critical question for lawmakers — who should get the vaccine first — is still roiling. As with anything important, the devil is in the details. And in this instance, the details can determine life or death for thousands of incarcerated individuals. 
 
Protecting them is a matter of science, law, and basic humanity. 
 
Let’s start with science. Carceral settings have consistently been listed among the top coronavirus hotspots and the source of much suffering and death because they are too crowded and unhygienic to allow for social distancing. The death rate in prisons has been three times that of the general population. The infection rate of COVID-19 among those in immigration detention between May and August was 13 times higher than that of the general the rate of the U.S. population.
 
Individuals living in carceral settings also have higher rates of disability and chronic health issues that heighten their risk of severe illness or death from COVID-19. As just one illustration, public health experts note that incarcerated people should be treated as though they are 10 to 15 years older than their biological age. These vulnerabilities are due in part to the physical stress and strain imposed by their imprisonment. Prior to COVID-19, these facilities already denied detainees access to adequate nutrition, health care, hygienic supplies, and fresh air — a situation worsened by a woefully harmful and inadequate response to the pandemic.  
 
Prison, jail, and detention administrators have consistently failed to take the necessary steps to prevent outbreaks that endanger both the people inside and outside their facilities, as the virus does not stop at the prison walls. Staff and contractors churn in and out constantly, allowing the virus to spread both within the facility and in the broader community. As a result, dozens of public health experts have supported lawsuits and advocacy by the ACLU and other organizations to increase protective measures and significantly reduce incarcerated populations. Just last week we won an order to cut the Orange County jail population in half, because social distancing was impossible without it. The science-driven arguments apply equally to vaccine distribution: The faster we get vaccines into detention settings, the faster we can protect everyone, both inside and out.     
 
The law also supports the science. The Constitution protects individuals who are incarcerated and therefore unable to protect themselves. To that end, government officials must take reasonable efforts to protect those in their custody from becoming infected with COVID-19. Nothing is more reasonable than vaccinating the most vulnerable populations first, wherever they live. The fact that incarcerated people may be fighting for asylum, or have been convicted or accused of a crime, is irrelevantto the analysis here, and it should be.Now more than ever, federal and state officials must honor their oaths to these constitutional principles. Lives are at stake.
 
Finally, this is about basic humanity. COVID-19 has disproportionately decimated the poor, the medically vulnerable, people with disabilities, and Black and Brown communities, including immigrants. Many people fall into several of these categories at once, and far too many find themselves incarcerated — often because of this country’s legacy of systemic racism. Already at increased risk of infection, many are also at the mercy of their government to protect them. And, so far, governments have largely failed.  
 
But because of ACLU litigation and advocacy, criminal defendants now have the right to remain silent and the right to a court-appointed attorney. We fought the racist war on drugs in the 1980s and have never stopped. We are ending the caging of migrant children nationwide. Our work since March protecting the nation’s most vulnerable from COVID-19 is a continuation of this legacy. Today, we are proud to say that people in prisons, jails, and immigration detention — along with people with disabilities and seniors in congregate settings, communities of color, and other vulnerable groups who have been most impacted by the pandemic — should be a first-tier priority for the COVID-19 vaccine.

Customs and Border Protection (CBP) is at the heart of some of the greatest moral horrors of the last four years, personified in stories that we cannot forget: the children breathlessly crying for their parents after being separated at the border; the children sleeping in the dirt in open air cages and people trapped in cells so overcrowded that they pressed their palms against the windows in a desperate plea for help; and the little girl with her arm around her father’s neck, desperately holding on as they both drowned while attempting to cross the Rio Grande river.

As President-elect Biden enters office, he faces a stark imperative: These abuses must never happen again. It will take bold action in a climate where border fear-mongering has too often excused cruelty and met abuse with impunity. 

As President-elect Biden contemplates how to resource the Department of Homeland Security’s handling of the pandemic, it should focus on significantly cutting the budget of CBP. It is the largest federal law enforcement agency in the country and the largest law enforcement air force in the world, with a budget of more than $17.1 billion for both the Border Patrol and operations at ports of entry. Despite its already enormous size, in 2019 DHS claimed that 40 percent of CBP’s resources were being absorbed by an “unprecedented surge” in the number of families fleeing Central American countries, leaving the agency “[unable] to manage its other border security missions.” Simultaneously, it was illegally siphoning funds from other parts of the government to build Trump’s border wall. As the Trump administration’s fiscal ineptitude and cruelty has demonstrated, funding is not the issue when it comes to CBP. CBP simply must not have responsibilities that it’s proven incapable of handling. 

CBP should have no role in detaining people beyond a brief period for processing — including asylum seeking parents and kids. In the past two years, at least seven children died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether. At Border Patrol stations, kids have gone “days, sometimes weeks, in facilities without enough food or toothbrushes.” In Texas, Border Patrol agents reportedly “took away the children’s blankets and mats,” forcing them to sleep on the cement floor as “punishment.” 

It’s not exclusively kids. Border Patrol stations don’t have bedding, showers, or staff trained to interact with or assist traumatized people. The ACLU and its partners have documented freezing temperatures and filthy cells where people are held virtually incommunicado for days. Border Patrol agents subject pregnant people to physical mistreatment, verbal abuse, and severe delays in medical care (if it is provided at all). In February 2020, a woman in Border Patrol custody was forced to give birth to her baby while standing up, holding on to the side of a trash can in a Border Patrol station near San Diego.

Yet in 2019, CBP unlawfully spent emergency funds Congress allocated for the care of adults and children on dirt bikes and dog food — instead of medical care, food, and sanitary conditions. As the Biden transition team contemplates a new model for receiving asylum seekers, it should develop alternatives to detaining them. The incoming administration cannot forget what this recent history shows: CBP simply cannot be trusted with detention.   

CBP should also be removed from the asylum process, where life or death is often at stake. CBP personnel confiscate crucial (often irreplaceable) personal documents from people seeking asylum and have lied on government forms. Implementing the Trump administration’s disastrous forced Return to Mexico policy, Border Patrol agents sent asylum seekers back to Mexico with fake future court dates, even writing “Facebook” in place of peoples’ actual addresses. The Trump administration replaced trained asylum officers with CBP agents to conduct credible fear interviews — a crucial step in the asylum process. That’s akin to having an arresting police officer also sit as the judge.  

CBP should also never make decisions about how and when to separate families arriving at our border. Families belong together, and that presumption should never be challenged by a law enforcement agency that is notorious for human rights abuses.
 
We also need reforms that address CBP’s culture of impunity for abuse — including the death of people at the hands of CBP. Since January 2010, at least 117 people — including some U.S. citizens — have died following encounters with CBP. On May 23, 2018, 20-year-old Claudia Patricia Gómez González was shot in the head by a Border Patrol agent shortly after she crossed into the United States. CBP only admitted the facts of this killing after the release of a bystander video. Agents almost never face consequences for their actions and some deaths go unreported altogether.

We need stronger standards to limit CBP’s use of deadly force. CBP officers should be required to keep their badges visible at all times and wear body cameras (with appropriate privacy protections in place). We need a complaint mechanism that’s accessible online, and a uniform process for review and investigation of abuses. 

President-elect Biden has pledged to ensure that CBP personnel are held accountable for inhumane treatment. Accountability will require more than the appointment of new leadership. It will require a reckoning with and recalculation of CBP’s role.