LOS ANGELES, Calif. – With California’s 650,000 farm workers facing a daily risk of death and illness from toiling in stifling summer heat, the ACLU affiliates of Southern California and San Diego and Imperial Counties, and the law firm of Munger, Tolles & Olson LLP, filed a landmark lawsuit today against the state and its Occupational Safety and Health Standards Board (Cal/OSHA) for failing to live up to their constitutional and statutory duties to protect the safety of farm workers

The lawsuit charges that state officials have failed in virtually every possible way to create a system to protect these workers, who provide 90 percent of the labor for California’s multibillion-dollar agricultural industry – the nation’s largest -- that produces everything from grapes and strawberries to lettuce and tomatoes. Perhaps most glaringly, Cal/OSHA has failed to establish common-sense regulations that would provide potentially life-saving water, shade and rest to workers who labor outdoors in temperatures that regularly top 100 degrees F.

In addition, the state requires that its existing -- and deficient -- heat safety regulation be enforced exclusively through Cal/OSHA, even though that agency has no practical ability to do the job. Cal/OSHA has so few inspectors that it simply cannot protect workers in an industry this large, routinely imposes paltry fines even for serious violations and deaths, fails to collect fines it does impose, and allows enforcement actions to be tied up in appeals processes that often delay penalties for years.

“Farm workers are literally dying because of the state’s broken system, which is designed in a way that ensures underenforcement of the law,” said Catherine Lhamon, assistant legal director for the ACLU of Southern California. “The state’s system is so full of loopholes that compliance is effectively optional, and employers flout the law with impunity.”

The state itself has identified such serious noncompliance from agricultural employers that this summer it twice declared emergencies. But even then the state took no regulatory or legislative action to protect farm workers. “We are left with no choice but to ask the court to require that the state protect farm workers from serious heat-related illness and death, which is readily preventable with basic precautions,” said Brad Phillips, an attorney with Munger, Tolles.

The state enacted its current heat safety regulation in 2005. At least 11 farm workers have died from heat-related illness since then, and farm workers have been pleading with the state for safety improvements all that time. Last year the agency conducted only 750 inspections among approximately 35,000 farms statewide – and found that nearly 40 percent had violated mandatory heat safety regulations.

Among the workers to die from heat-related illness was Maria de Jesus Bautista, who complained of nausea, headache and cold sweats in July 2008 while picking grapes during extreme heat in Riverside County. She died two weeks later. Bautista’s daughter, Margarita, is also a farm worker and still works in the fields of Riverside County. Having seen what happened to her mother, she fears for her safety during hot weather, but works out of economic necessity.

Socorro Rivera works for the largest grape grower in the United States, Giumarra Vineyards Corporation, which has vineyards in Kern and Tulare counties. On hot days, the shade provided by Giumarra consists of a plastic tarp slung over three rows of vines. Workers do not take shelter under it because air doesn’t circulate under the tarp, and it’s hotter there than in direct sunlight, Rivera says. Giumarra’s training to prevent heat illness consists of a supervisor reading a list of heat illness symptoms for 10 minutes once a year.

But no meaningful enforcement action has been taken against Giumarra. That is only one example of a glaring problem: in addition to a scarcity of inspectors and inspections, even employers who are charged with violating existing regulations escape with little or no punishment. Penalties for violations that have resulted in heat-related deaths average less than $10,000, and have dropped to as low as $250. Meanwhile, hazardous conditions often continue uncorrected for years as the labor contractors typically targeted by the state fail to pay fines or to address violations.

In addition, the industry has no environmental “trigger” such as temperature, humidity or radiant heat exposure that would set in motion a series of mandatory protective measures. One provision of Cal/OSHA’s emergency proposals earlier this year was a requirement for employers to provide shade for workers when temperatures exceed 85 degrees F. But the proposals placed the burden for taking shade breaks on farm workers themselves. Many workers say they are pressured to keep up with competing crews, and they are fearful of being fired if they take voluntary breaks to cool down.

“If hundreds of thousands of white-collar employees had to work under dangerous and life-threatening conditions, the state would almost certainly take immediate action to protect their health and safety,” said David Blair-Loy, legal director for the ACLU of San Diego & Imperial Counties. “Low-income farm workers, who are overwhelmingly Latino, deserve no less.”

“The governor has said he would address this crisis through heat regulations,” added Arturo Rodriguez, president of the United Farm Workers. “Yet farm workers have continued to die, and the evidence points to neglect, not ignorance, as the cause of their deaths. Consequently, we have no moral or practical choice but legal action."

In contrast to California’s agricultural industry, the United States Army expressly recognizes the importance off heat stress control in providing a safe and efficient working environment. Steps taken by the Army to actively manage employee heat stress include: monitoring heat index levels and employing a “flag system” that regulates work/rest cycles; ensuring that water is consumed continuously throughout the day; and training soldiers and command officers to recognize and respond to symptoms of heat illness.

“A Broken System” is based on 18,000 Pages of Previously Confidential ICE, ABA and UNHCR Reviews of Detention Centers

LOS ANGELES – Denied access to loved ones, lawyers and basic necessities, the fundamental rights of the men and women within the nation’s immigration detention system are routinely and systematically violated, according to a new report released today by the National Immigration Law Center (NILC), the ACLU of Southern California, and the international law firm of Holland & Knight, LLP. The first nationwide comprehensive report of its kind, “A Broken System: Confidential Reports Reveal Failures in U.S. Detention Centers,” sheds new light on the conditions suffered by hundreds of thousands of people housed in detention centers around the country, and offers policymakers specific recommendations to ameliorate the situation.

“Though the detainees are accused of civil immigration charges, there is nothing civil about our detention centers,” said Karen Tumlin, co–author of the report and a staff attorney at NILC. “These centers, where people are detained for months and often years at a time, often fail to provide people with their fundamental rights: access to loved ones, the basic materials needed to research and prepare their cases, or even a simple explanation of their rights while within the immigrant detention system.”

Added Linton Joaquin, co–author and general counsel at NILC, “The government’s own standards for immigration detention are routinely violated. Such a flagrant disregard for this country’s values for fairness and justice on behalf of the United States government is appalling.”

Though Immigration and Customs Enforcement (ICE) claims to conduct a formal review of each detention facility on a yearly basis, “A Broken System” shows that such reviews carry little enforcement weight, as many of the detention facilities fail to rectify problems identified by ICE’s own inspectors. Even more troubling, the inadequacy of the ICE reviews is demonstrated when they are compared with independent reviews by the American Bar Association (ABA) and the United Nations High Commissioner for Refugees (UNHCR) of the same facilities, which often found a greater number and more severe violations in detention centers than was reported by ICE.

For instance, the ABA and UNHCR reviewers found detainees were retaliated against or punished more severely than allowed for minor disciplinary infractions. ICE reviewers, on the other hand, overlooked these serious violations.

Ranjana Natarajan, a report co-author and former ACLU/SC attorney said, “At every level, federal, state and local jails and prisons have legal and binding rules they must abide. But in immigration detention, the government refuses to adopt binding rules. The result is utter disregard for basic humane conditions. Because we don’t have rules, we don’t have accountability.”

The report highlights the importance of having independent monitors of detention centers. In the Kenosha County Detention Center, for example, a UNHCR report found that while men were allowed two daily hours of recreation, women housed in the same facility were denied recreation rights. The following year, ICE inspectors rated that same facility “acceptable,” despite the fact that women were still being denied access to recreation facilities.

“A Broken System” is based on an analysis of hundreds of ICE, ABA and UNHCR detention facility review reports from 2001 through 2005. The reports, which had been withheld from the public, were obtained through discovery in litigation. Although the report is the most comprehensive analysis of its kind, the government withheld a significant number of documents it was ordered to produce. As a result, the violations outlined in the report represent only a fraction of the number of violations that actually occurred but could not be documented.

Christopher Nugent, pro bono senior counsel at Holland & Knight, said, “Though this report provides the most complete picture the public has of this massive system, it is still a sketch. We can, however, determine even more definitively that the immigration detention centers routinely violate the government’s own standards for immigration detention, and based on this information we have made specific policy recommendations to encourage those with the power to change the system to do so.”

The recommendations in the report are based upon thousands of hours of research and analysis of the detention center reviews. Key among them is the proposal that ICE revise its standards for immigration detention to make them judicially enforceable. The report also determines that given the gross abuses, further expansion of the immigrant detention system should be stopped, and more use should be made of humane alternatives to detention.

The findings from “A Broken System” are particularly timely, as they are released in the wake of a DHS decision to reject the long-standing request of NGOs and the ABA to promulgate regulations that would require immigration detention facilities to adhere to basic standards of care.

This agency statement responds to a petition for rulemaking submitted in January 2007 by dozens of immigrant detainees and advocacy groups in the wake of public reports detailing the humanitarian crisis in the facilities. The name of the case involved in the petition is Families for Freedom v. Napolitano, No. 08-CIV-4056 (DC).

LOS ANGELES, Calif. – A U.S. citizen standing trial on vague terrorism-related charges was denied an open proceeding today when a United Arab Emirates judge closed the courtroom to international observers and the media. The move raises further questions about whether Naji Hamdan, who has been imprisoned for 11 months in the U. A.E. and has been charged based on evidence obtained from him through torture, will receive a fair trial.

“Naji Hamdan’s life is in peril, and we’re fearful that this secretive trial will not result in a fair hearing of facts in his case,” said Jennie Pasquarella, an ACLU/SC staff attorney who was among those denied entry into the courtroom in Abu Dhabi.

Based on his credible accounts, the ACLU/SC believes that Hamdan was arrested and detained at the direction of the U.S. government. His trial represents a test for the Obama administration’s willingness to end Bush-era proxy detentions – the detention of U.S. citizens by foreign governments at the direction of American officials.

“We’ve asked the United States to use its influence to get Hamdan out of prison in the U.A.E., or at least ensure that evidence obtained through torture is not used against him in trial,” Pasquarella said. “Sadly, we have heard nothing in reply as the U.A.E. proceeds with its case against him.”

Last year the ACLU/SC filed a lawsuit seeking to compel the federal government to reveal its role in the detention, torture and prosecution of Hamdan. The lawsuit remains pending.

The ACLU/SC also sent a petition bearing more than 1,000 signatures to U.S. Secretary of State Hillary Clinton, urging her to intervene on Hamdan’s behalf to ensure that evidence obtained through torture is not used against him. So far, Clinton and other Obama administration officials have been silent on Hamdan’s detention.