The Grapes of Wrath: On the Health of Immigration Detainees

This Article challenges the lack of health care provided to individuals in U.S. Immigration and Customs Enforcement (“ICE”) custody. As background, many immigration detainees are physically and emotionally vulnerable at the time of initial confinement due to a history of torture and trauma, which may include human trafficking, sexual violence, political oppression, psychosocial trauma, and acculturative stress. Detention can exacerbate preexisting vulnerabilities and contribute to severe physical and mental illness as well as death. Between October 2003 and October 2015, 153 individuals died while in ICE custody. Although most proposals for detainee health reform borrow heavily from constitutional law, international human rights law, and tort law, this Article argues that these areas of the law lack the specificity, enforceability, and ex ante perspective necessary, respectively, to effect comprehensive reform. Instead, this Article uses state and federal health law as a model for change. Involuntary commitment laws, long-term care facility laws, and behavioral health laws provide a lens through which the lack of access to health care in detention might be assessed and through which the unenforceable standards governing detention centers might be improved. This Article makes eight specific recommendations that, if promulgated by the Department of Homeland Security into legally enforceable regulations, will improve the health and safety of detainees.