Volume 58

Time to Ditch Deliberate Indifference: COVID-19, Immigrant Challenges, and the Future of Due Process

by Hannah Nguyen

 During the first three years of the Trump administration, the mass detention of immigrant detainees in unsafe, unsanitary, and overcrowded facilities became a major source of public criticism of the president and his policies. According to one study, in 2019 the average number of individuals detained in the U.S. immigrant detention system exceeded 50,000 people per day. Widespread news reporting exposed the disturbingly poor conditions of immigrant detention centers across the country, ranging from dangerous overcrowding and poor sanitation, to allegations of sexual assault and forced mass hysterectomies by U.S. officials. The Department of Homeland Security’s Office of Inspector General itself acknowledged the detrimental effects of the overcrowded conditions in some facilities.

Despite the public awareness about these inhumane conditions and the risks they pose to the physical and mental health of detainees, immigrant detainees often face an uphill battle in challenging inadequate medical care or unhealthy conditions of their confinement. Immigrant detainees, like other pretrial detainees, are purportedly protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. These rights supposedly afford immigrant detainees greater protection than post-conviction detainees. Unlike post-conviction prisoners, who are only protected against cruel and unusual punishment by the Eighth Amendment, immigrant detainees are constitutionally protected against any conditions or treatment that amount to punishment. However, when immigrant detainees, or other pretrial detainees, seek to assert due process rights and challenge the conditions of their confinement or inadequate medical attention, many courts hold these detainees to the same “deliberate indifference” standard as post-conviction detainees asserting Eighth Amendment violations. 

This Comment argues that requiring pretrial detainees to make the same heightened showing under the Due Process Clause as prisoners under the Eighth Amendment is inappropriate. Part I provides an overview of the standards that apply to pretrial detainees challenging unsafe conditions under the Due Process Clause, and discusses the circuit split that emerged following the Supreme Court’s decision in Kingsley v. Hendrickson.10 Part II describes cases that immigrant detainees have brought during the COVID-19 pandemic, arguing that these cases best demonstrate the need for the universal adoption of the “objective reasonableness” standard for cases involving due process challenges to unsafe conditions. 

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