Medical Neglect in ICE Detention: Extending Eighth Amendment Protections
Since 2010, at least twenty people have died in U.S. Immigration and Customs Enforcement (“ICE”) custody.[1] In 2017, a father of four died from internal bleeding in ICE custody after medical professionals allegedly failed to properly address his pre-existing health concerns.[2] Beyond problematic enforcement policies and the national debate surrounding the border, the crisis of medical neglect in ICE facilities has been looming for years.
The Eighth Amendment may protect immigrants in detention, but plaintiffs face a high burden of proof
The Eighth Amendment to the U.S. Constitution forbids “cruel and unusual punishment.”[3] Courts have interpreted that this constitutional right requires the provision of medical care in U.S. correctional facilities.[4] Thus, such facilities have a constitutional obligation to provide medical care to all persons confined under their supervision. The burden of proof, however, is on a person imprisoned to demonstrate that facility officials were “deliberately indifferent to serious medical needs”[5] — an extremely high bar.
Furthermore, courts have yet to explicitly extend this constitutional protection to individuals in immigration detention.[6] Some courts have held that conditions of confinement for people in civil, pre-trial, or administrative detention must meet the same Eighth Amendment “deliberate indifference” standard.[7] Therefore, theoretically, immigrants claiming constitutional violations for inadequate medical care in ICE custody must demonstrate that officials were deliberately indifferent to their serious medical needs.
Another barrier for immigrants held in detention is that several ICE facilities are run by private corporations like CoreCivic and the Geo Group.[8] In 2001, the U.S. Supreme Court held that corporations under contract with the federal government are not subject to the same constitutional obligations as state and federal facilities.[9] Thus, immigrants detained in privately run facilities contracted with ICE may be precluded from suing such corporations for claims of inadequate medical care under the Eighth Amendment.
Interest convergence, differential racialization, and structural determinism are at play in this crisis
In a perfect world, human rights principles would prevail — any facility built to incarcerate people would be abolished and health care would be considered a basic right for all. Unfortunately, the U.S. does not currently operate under those principles. Critical Race Theory unveils the reasons why systemic oppression exists and persists in our society, including the current health care crisis facing immigrants in ICE custody.
Through a critical race theory lens, interest convergence, differential racialization, and structural determinism are clearly at play to limit immigrants’ right to health care when detained by the U.S. government. First, interest convergence occurs when people with power support ideas that may serve others when there is some benefit for their own privilege embedded within. According to a 2018 Mother Jones report, the aforementioned private prison groups poured millions of dollars into lobbying efforts and donated significantly to Donald J. Trump’s 2016 campaign. Consequently, these companies are making millions of dollars in profit on immigration detention alone.[10] Thus, the current administration has reaped ample benefit from these corporations and has little incentive to alter its harsh policies, practices, or legal precedent that negatively impact immigrant communities. And the vicious cycle continues.
Second, differential racialization occurs when those in positions of power create marginalized groups to be in an “other” category. Although courts interpreted the Eighth Amendment to protect persons incarcerated in state or federal prisons, none have explicitly extended that protection to immigration detention centers. Beyond private versus public facilities, there is another distinction — the category of persons detained. In immigration detention, individuals are held due to their “citizenship” or lack thereof. The vast majority of immigrants detained are Brown and Black. Most hail from Mexico, El Salvador, Honduras, and Guatemala; followed by Haiti, Ghana, Dominican Republic, and Nigeria.[11] Which country is last on the list? The United Kingdom. While proximity, geopolitics, violence, and other factors are surely at play, this is not mere coincidence.
Finally, structural determinism posits that systemic and institutional racism is self-propagating and will operate as “business as usual” until the system changes and transforms. Until and unless individuals with power within systems and institutions are willing to look critically at this crisis, acknowledge the underlying incentives, and push back against strong currents, we will continue to lose precious lives in ICE custody.
Transformative legal analysis and radical leadership are necessary to avert further crisis and restore human dignity in immigration policy
At the very least, courts should extend full Eighth Amendment protections to ALL detention facilities — whether civil, administrative, public or private. Courts should lower the burden of proof for plaintiffs or shift the burden on the government to prove that no constitutional violation occurred. Applying a “totality of the circumstances” analysis could also help plaintiffs prove that a series of conditions led to a violation instead of the difficult state-of-mind inquiry under the current “deliberate indifference” standard.[12]
Civil liberties organizations and individuals have challenged inadequate medical care in ICE facilities in the past. In 2010, ICE even agreed to improve health care provided to immigrant detainees as part of an ACLU settlement agreement.[13] Nevertheless, egregious medical conditions in ICE detention have only escalated as immigration enforcement steadily intensifies. Hence, even if these conditions were strictly construed as “cruel and unusual punishments” under the Eighth Amendment, lawsuits cannot be the only answer. Politicians, ICE officials, and others in positions of power must either transform heath care for immigrants in detention or object to and abstain from enforcing racist policies all together. It is a human rights imperative and it is long overdue.
[1] Chanelle Diaz, The Real Border Crisis: Medical Neglect of Migrants in Detention Centers, STAT News (Jan. 10, 2019), https://www.statnews.com/2019/01/10/medical-neglect-migrants-detention/; Lisa Riordan Seville, Hannah Rappleye & Andrew W. Lehren, 22 Immigrants Died in ICE Detention Centers During the Past 2 Years, NBC News (Jan. 6, 2019), https://www.nbcnews.com/politics/immigration/22-immigrants-died-ice-detention-centers-during-past-2-years-n954781.
[2] Julia Arciga, Father of Four ‘Bled to Death’ in ICE Custody: Lawsuit, The Daily Beast (May 31, 2019), https://www.thedailybeast.com/father-of-four-bled-to-death-in-ice-custody-lawsuit.
[3] U.S. Const. amend. VIII.
[4] See Estelle v. Gamble, 429 U.S. 97, 100 (1976).
[5] Id. at 104.
[6] See Human Rights Watch, Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention (May 8, 2017), https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-substandard-medical-care-us-immigration-detention.
[7] See Cuoco v. Moritsugu, 222 F.3d 99 (2nd Cir. 2000).
[8] Madison Pauly, Trump’s Immigration Crackdown is a Boom Time for Private Prisons, Mother Jones (May/June 2018), https://www.motherjones.com/politics/2018/05/trumps-immigration-crackdown-is-a-boom-time-for-private-prisons/.
[9] Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001).
[10] Freedom for Immigrants, Detention by The Numbers (2018), https://www.freedomforimmigrants.org/detention-statistics.
[11] Id.
[12] See Wilson v. Seiter, 501 U.S. 294 (1991).
[13] ACLU, ICE Agrees to Improve Health Care Provided to Immigration Detainees as Part of Settlement of ACLU Lawsuit (Dec. 26, 2010), https://www.aclu.org/press-releases/ice-agrees-improve-health-care-provided-immigration-detainees-part-settlement-aclu?redirect=news/ice-agrees-improve-health-care-provided-immigration-detainees-part-settlement-aclu-lawsuit.
