On April 20, 2020, a federal court ordered Immigration and Customs Enforcement (ICE) to consider releasing all people in its custody at increased risk during the COVID-19 pandemic. The court recognized (“certified”) a subclass of plaintiffs in ongoing litigation in Fraihat v. ICE, composed of detainees with specific risk factors due to health status. The court found that, since a court would likely find the rights of this subclass had been violated in future proceedings, emergency action was necessary. The court therefore ordered ICE to quickly identify everyone with risk factors and release them, unless ICE could show a compelling reason to keep an individual confined and also could implement the care and precautions necessary from a public health standpoint.
In finding that the plaintiffs would likely succeed in future proceedings, the court had to consider, in addition to a due process argument based on medical indifference, the argument that ICE was not complying with the Rehabilitation Act of 1973. The court agreed with plaintiffs that “persons with health conditions putting them at risk of severe illness or death if exposed to COVID-19 qualify as persons with disabilities under Section 504,” and that these persons were denied the disability “benefit” of “effective systemwide practices,” which should have identified “all detainees with CDC-defined COVID-19 vulnerabilities” and “provide[d] them with minimally adequate protection, whether that be detention with social distancing or protective equipment, an alternative to detention, or some other epidemiologically sound intervention.”
This order is useful for its condemnation of ICE’s failures, which may be analogous to the failures of federal, state, and local authorities in charge of correctional and state psychiatric institutions during the COVID-19 pandemic. The federal court in this case clearly found it inhumane to continue business as usual in detention centers during a pandemic, as people who otherwise might have been able to protect themselves against COVID-19 faced the possibility of death if they remained confined. In the case of immigration detention, many detainees are seeking asylum in the United States for persecution in their countries of origin and are not even accused of crimes. But similar arguments can be made in criminal contexts: no one should face an effective death sentence because they cannot make bail, because they are accused of a technical parole violation, or even if they are in the middle of serving a long sentence for a serious offense.