Cruel and Unusual Punishment

In May 2008, the New York Times and the Washington Post disclosed the tragic, yet potentially avoidable, deaths from inadequate medical care of 83 immigrants held in civil detention by the Department of Homeland Security (DHS). Recent reports confirm that there have now been 107 deaths in detention. As I stated in an article I published on this issue two months after the stories broke, the deaths are not only legally troubling, but must also lead us to wonder about the ethical foundation of a nation where such inhumane tragedies occur. According to one of the articles published in 2008 about the lamentable medical attention in detention facilities, a nurse who had previously worked in such a facility was quoted as saying that “scary medicine” was practiced there. She then emphasized, “You don’t treat people like that. There has to be some kind of moral fiber.”

The deaths in immigration detention centers are very troubling. In one, a Guinean national fell and fractured his skull. Instead of being treated, he was shackled and taken to solitary confinement where he was left unattended for 13 hours, unconscious and foaming at the mouth. He died after four months in a coma. One woman originally from Barbados, but a permanent resident of the U.S. for 30 years, was denied medication for high blood pressure while detained. She died from an enlarged heart due to chronic hypertensive disease. A German citizen, who immigrated legally to the U.S. at the age of six, died when a virulent bacterial infection, easily treatable with antibiotics, attacked his heart. Of course, there are 104 more such tales of pain, misery and death. And all were perhaps treatable had an official paid attention and properly done his or her job.

In a comprehensive report on detention facilities released on October 6, 2009, former senior DHS official, Dr. Dora Schriro, revealed that most detainees are held under circumstances inappropriate for immigration detention’s noncriminal purposes. Consequently, the Obama Administration pledged to reform the system to reflect its true nature as a civil detention system, though this has not yet happened. Moreover, as if the potentially preventable deaths of human beings weren’t abhorrent enough in and of themselves, the ACLU has announced that it, along with the New York Times, obtained documentation through a Freedom of Information Act request which indicates that government officials systematically covered up the abuse that contributed to the untimely deaths of immigrants in federal civil custody.

Now, along with human and civil rights organizations’ demands that DHS be held accountable for the poor conditions in detention facilities, one of the cases involving a death in detention has reached the U.S. Supreme Court. In Hui v Castaneda, the Court is called upon to determine the legal remedy available to sue the federal Government for providing inadequate medical care.

In March 2006, Francisco Castaneda, a citizen of El Salvador, was held by DHS in California when health officials discovered a lesion on his penis and recommended a biopsy. DHS denied the request, and Castaneda was given only ibuprofen to soothe the intense pain he suffered. Ultimately, he was released from detention, but died of penile cancer after his cancer had remained undiagnosed for the year he was in immigration custody.

Castaneda’s estate brought what is called a Bivens action against the federal Government and individual employees of the Public Health Service, which administers health care in detention facilities. A Bivens action allows one to sue the Government for constitutional violations. In this case, Castaneda argued that his Fifth and Eighth Amendment rights were violated given the Government’s deliberate indifference to his health and purposeful denial of treatment. Before a lower court, the Government basically argued that it and its employees, acting within the scope of their employment, were immune from being sued under the U.S. Constitution. Instead, the Government claimed that the only legal remedy available to Castaneda was a medical malpractice action under the Federal Torts Claim Act (FTCA), which limits the damages to which a claimant is entitled. The lower Court disagreed with the Government’s position, so the Government appealed to the U.S. Court of Appeals, but again lost.

The U.S. Supreme Court agreed to hear this important case in September, and it was argued on March 2, 2010. A decision will likely be issued before year’s end, and if favorable to Mr. Castaneda, it may have enormous impact on the issue of health care in detention. In addition, immigrant rights’ advocates will continue to assertively call upon the Government to reform its regime of detaining non-citizens.