By William Fisher
Clinical depression. Bipolar disorders. Eye surgery. Type 2 diabetes. Hypertension. Abscessed and broken teeth. Severe chest pains. Cancer-like pain.
These are some of the untreated health complaints from men and women held in detention at the behest of U.S. Immigration and Customs Enforcement (ICE) at the San Diego Correctional Facility (SDCF), where lack of medical care has resulted in severe complications and even death.
SDCF is an ICE facility run by Corrections Corporations of America, Inc. (CCA), the country's largest for-profit correctional services provider. In its lawsuit, the ACLU challenged medical care policies and denial of needed treatment by ICE and the Division of Immigration Health Services, which it says has led to suffering and death among detainees.
After more than two years of legal sparring, ICE officials have now agreed to provide immigration detainees with constitutionally adequate” levels of medical and mental health care. The pledge is part of an agreement settling an American Civil Liberties Union (ACLU) lawsuit charging that deficient care at the San Diego facility caused unnecessary suffering and death.
As part of the settlement, ICE has also agreed to change its policy on medical care that had led to the denial of what ICE deemed to be "non-emergency" care, including heart surgeries and cancer biopsies.
"For the first time, ICE has committed to providing all necessary health care to immigration detainees beyond just emergency care," said cooperating attorney Elizabeth Alexander, former Director of the ACLU National Prison Project and lead counsel on the case.
The stories she tells of what happens to sick detainees are grisly. “One man was brought in with such high blood pressure that if he was not in custody, he would have been sent to an emergency room immediately, “ she told The Public Record. She added: “He was denied treatment and shortly thereafter her suffered a massive heart attack and died.”
She said he was denied treatment because the treatment he needed – a coronary artery bypass – was not considered an ‘emergency’ procedure, the only condition under which care could be provided.
Another detainee had for over a year been denied a biopsy to detect a possible cancer. He died soon afterward.
"For too long, ICE's own policies allowed it to provide detainees with nothing beyond a narrow definition of emergency. This settlement is recognition that it is unconstitutional not to provide people in government custody with all necessary health care," Alexander said.
Originally filed in June 2007 by the ACLU, the ACLU of San Diego and Imperial Counties, and the law firm Cooley LLP, the complaint stated that detainees at SDCF were routinely subjected to long delays before treatment, denied necessary medication for chronic illnesses and refused essential referrals prescribed by medical staff.
The plaintiffs charged that the medical, mental health, dental, and vision care provided to detainees at SDCF was grossly deficient, “causing them great physical suffering and mental anguish, that amounts to punishment in violation of the Fifth Amendment to the United States Constitution.”
Their complaint said, “SDCF medical staff routinely ignore requests for urgent care by detainees with dangerous and painful health problems. Detainees often must submit multiple written sick call requests, over the course of several weeks or months, before they are able to see a doctor or nurse. When they are seen by medical staff, detainees typically receive superficial or inappropriate care, often by staff unqualified to provide proper care. In many cases, detainees receive nothing more than pain medication for their medical problems and are denied necessary treatments and essential diagnostic tests based on official DIHS policies that result in unnecessary pain and suffering, and create a substantial risk of serious injury or death.”
The suit charges that health care for immigration detainees around the country, and at SDCF, is premised on the often-false notion that detention is short-term.
But Attorney Alexander says, “In truth, many detainees spend months or years awaiting a final determination of their immigration case, and are forced to suffer needlessly as a result of defendants’ polices and practices. In some instances, the denial of treatment—and the physical and mental anguish that result—further detainees to waive their legal rights in immigration proceedings in order to expedite their removal from the United States and their release from detention.”
ICE’s actions “deny basic human needs, inflict unnecessary pain and suffering, and put plaintiffs at substantial risk of physical injury, illness, and premature death,” the suit charges.
The lawsuit charged that the refusal of immigration officials to provide appropriate medical care punished immigration detainees in violation of the Fifth Amendment, which prohibits the infliction of unnecessary pain and suffering on federal detainees. Because SDCF holds civil immigrant detainees not serving a criminal sentence, the Fifth Amendment applies to protect their civil rights.
Among the settlement agreement's other provisions are requirements that detainees at SDCF receive health care that meets or exceeds National Commission on Correctional Health Care standards and that an additional full-time psychiatrist and four full-time psychiatric nurses be hired to ensure that detainees receive adequate mental health care.
The settlement also requires immigration officials to remove from existing policies all statements suggesting that detainees will receive only emergency medical services and to include in the same policies explicit statements mandating that detainees shall be provided medical care whenever it is necessary to address a serious medical need.
"The government has a fundamental obligation to provide decent medical care to the people it locks up. The quality of medical care provided to detainees at the San Diego Correctional Facility has been unconstitutional," said David Blair-Loy, Legal Director of the ACLU of San Diego and Imperial Counties. "Immigration officials must ensure that immigration detainees do not suffer or die unnecessarily."
"This is a major step toward ending the unconstitutional and inhumane lack of treatment given to the civil immigration detainees at SDCF," said Anthony M. Stiegler, litigation partner at Cooley LLP. "It is at odds with our American values to allow people to suffer long-term health consequences or even death because authorities refuse to treat them."
The suit also focused on ICE’s policy of “failing to hire sufficient staff to care for the serious dental needs of detainees, failing to provide adequate screening and monitoring of detainees with serious mental health needs and not providing “safe and appropriate housing” for such detainees.
The suit also highlighted the policies and practices of ICE, including:
• failing to maintain sick call request forms together with patient medical records and to respond to sick call requests in a timely manner;
• failing to monitor detainees with chronic conditions;
• failing to maintain an adequate system to provide prescription medication refills and to ensure continuity of treatment;
• failing to make timely referrals for specialty care;
• denying necessary medical care, including dental and vision care, in accordance with official DIHS policies;
• failing to hire sufficient staff to care for the serious dental needs of detainees; and
• failing to provide adequate screening and monitoring of detainees with serious mental health needs and to provide safe and appropriate housing for such detainees
ICE’s problems with its detention facilities go back many years – to the days before the founding of the Department of Homeland Security in 2002, when ICE was still the Immigration and Naturalization Service (INS).
The substandard and often brutal conditions in immigration detention facilities run by the INS are well documented. And immigration experts believe that very little of a material nature has changed since then.
In response to a lawsuit brought by the American Civil Liberties Union (ACLU), the U.S. Department of Homeland Security (DHS) revealed that the government had failed to disclose eleven more deaths in immigration detention facilities.
In April, DHS officials released what they called a comprehensive list of all deaths in detention. That list included a total of 90 individuals. But the government has now admitted to a total of 104 in-custody deaths since fiscal year 2003.
But the ACLU is continuing to express doubt that they now have a complete tally of those who have died while in ICE custody.
David Shapiro, staff attorney with the ACLU National Prison Project, told IPS, "Even after the government's announcement yesterday we still can have no real confidence that each and every death has been accounted for.”
At the immigration detention center in Basile, Louisiana, more than 60 detainees have recently been on hunger strikes to protest conditions Authorities there retaliated by putting the hunger strikers in solitary confinement.
And the Los Angeles detention center has been another target of criticism. Civil rights groups are suing ICE in federal district court for detaining immigrants in “egregious and unsanitary conditions” in that facility.
The lawsuit, filed by the ACLU of Southern California, the National Immigration Law Center, and a private law firm, also charges that the unsanitary conditions have led ICE to deprive immigrants of due-process rights such as access to mail or attorneys while in detention.
The Los Angeles facility, known as “B-18,” is allowed to temporarily house detainees for no more than 12 hours. But in what the ACLU calls “a perverse distortion of its original purpose,” it says immigration officials have kept detainees for weeks by shuttling them to local jails in the evenings and on weekends, and returning them to the facility on the next business day, the lawsuit said.
The lawsuit also alleged that immigration officials often fail to notify detainees that they have the right to obtain release on bail while their cases remain pending.
The lawsuit said B-18 has not provided basic medication besides the lack of sanitary equipment. It charges that some of the facilities to which detainees are shuttled have similar gross deficiencies: Detainees are not permitted to shower in jail. Up to 50 detainees routinely share one open commode, one urinal (or two open commodes) and one sink. At some local jails, overcrowding and vents that blow extremely cold air on the bunks force detainees to sleep on mattresses on the floor. At B-18 and other jails, guards force detainees to remain inside through the entire day, and only permit them to go outside when shuttling them between detention centers. They are not permitted to have any physical recreation.
ICE's city, county and private prisons and jails also house serious criminals. The ACLU says that immigration detainees are mixed in with the general prison population, housed in penal-like facilities for months and sometimes years, with virtually no due process and often without the most basic safeguards such as hearings to assess the need for continued detention. These include asylum seekers, legal immigrants, victims of human trafficking, and immigrants with no criminal records.
The Wall Street Journal has reported that private, for-profit prison companies are preparing for a wave of new business as the economic downturn makes it increasingly difficult for federal and state government officials to build and operate their own jails.
The Federal Bureau of Prisons and several state governments have sent thousands of inmates in recent months to prisons and detention centers run by Corrections Corp. of America, Geo Group Inc. and other private operators, as a crackdown on illegal immigration, a lengthening of mandatory sentences for certain crimes and other factors have overcrowded many government facilities.
The Obama Administration’s newly appointed official supervising ICE, John Morton, has pledged to turn immigration detention into a "truly civil detention system," one focused on safely and humanely holding people accused of civil immigration violations until they are deported or released.
But many immigration experts tell The Public Record that they have as yet seen virtually nothing of the proposed reforms.
These reforms include creating offices and advisory boards to focus on medical care and the management of centers, reviewing contracts with private prisons and local jails, and installing managers at the 23 largest centers to make sure complaints are heard and problems fixed.
He said Centers would face random inspections. Community groups and immigrant advocates would be invited to offer advice and comment. And the government would stop sending parents with children to a notorious prison near Austin, Texas, as it seeks alternatives to the Bush-era tactic of putting whole families behind bars.
Congress is also expressing interest in the immigration detention issue. Legislation has been introduced in both the House and the Senate that would change the laws governing immigration detention and increase oversight and enforceability of detention standards.
Most immigration authorities are recommending legally binding standards governing basic levels of care and conditions inside immigration detention facilities. Simply having the government consolidate its oversight is not enough - there have to be mechanisms in place to hold the government accountable.