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VII. Legal Standards

ICE Obligation to Ensure Medical Care

Under federal law, the Department of Homeland Security possesses ultimate authority over administration of all immigration-related matters.102 This authority includes responsibility for the conditions of confinement for immigrants detained by ICE. The statute expressly requires DHS to provide “necessary medical care” for immigrants in its custody, whether detained in federal institutions or in “non-federal” facilities contracting with ICE.

Although ICE has delegated the incarceration of many immigrants to local and county jails, ICE remains responsible for their welfare. As one federal court stated:

It is clear that the INS does not vest the power over detained aliens in the wardens of detention facilities because the INS relies on state and local governments to house federal INS detainees. Whatever daily control state and local governments have over federal INS detainees, they have that control solely pursuant to the direction of the INS.103

The Right to Reasonable Medical Care

The Eighth Amendment to the US Constitution protects all convicted prisoners from “cruel and unusual punishment” and requires corrections officials to provide a “safe and humane environment.” Estelle v. Gamble, 429 U.S. 97 (1976). In the United States, prisoners have a right to health care that is not shared by the general population. As Justice Marshall explained in the Estelle decision: 

These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical torture or lingering death, the evils of most concern to the drafters of the Amendment.104

In Estelle, the Supreme Court established a narrow interpretation of the Eighth Amendment, requiring prisoners to demonstrate that officials were “deliberately indifferent to serious medical needs.”105 Courts have consistently held that prisoners diagnosed with HIV/AIDS have demonstrated a “serious medical need” under the Eighth Amendment.106

Immigration detainees, however, are not convicted prisoners. Rather, they are civil detainees held under administrative provisions. Their constitutional protection derives from the Fifth Amendment, which prohibits the imposition of punishment upon any person in the custody of the United States without due process of law.107  Courts have held in a variety of contexts that persons in non-punitive detention need not demonstrate “deliberate indifference” in challenging their conditions of confinement. 108 Indeed, the Court of Appeals for the Ninth Circuit has held that the conditions of confinement for administrative detainees must be superior not only to those of convicted prisoners, but also to those of pre-trial criminal detainees.109

One federal court has expressly endorsed a higher standard for medical care for administrative detainees: 

Persons in non-punitive detention have a right to “reasonable medical care”, a standard demonstrably higher than the Eighth Amendment standard that protects convicted prisoners.110

The Right to Health under International Law

Key international instruments obligate governments to respect, protect, and fulfill the right to health by taking positive actions to ensure access to health services and by refraining from actions that interfere with this right.111 The right to health is most explicitly expressed in the International Covenant on Economic, Social and Cultural Rights (ICESCR) which states that every person has a “right to the highest attainable standard of health.”112 The United States has signed, but not ratified, the ICESCR,113 a position that requires the government to, at minimum, take no action that would undermine the intent and purpose of the treaty.114

The United States is a party to the International Covenant on Civil and Political Rights (ICCPR).115 The ICCPR incorporates several rights directly and indirectly linked to the enjoyment of the right to health, including the right to life (Article 6); the right not be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 7); the right to be free from discrimination (Articles 2 and 3) and the right to privacy (Article 17).116

The rights protected by the ICCPR are not forfeited upon incarceration. On the contrary, Article 10 of the ICCPR specifically requires that all persons deprived of their liberty be treated with humanity and with respect for their inherent dignity.117 The Human Rights Committee has explained that states have a “positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of their liberty,” stating that the deprivation of liberty itself should be the only form of punishment:

Not only may persons deprived of their liberty not be subjected to torture, or other cruel, inhuman or degrading treatment or punishment, including medical or scientific experimentation, but neither may they be subjected to any hardship or restraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the ICCPR, subject to the restrictions that are unavoidable in a closed environment.118

International Standards for the Treatment of Prisoners

Key international instruments provide non-binding, but authoritative, interpretation of fundamental human rights standards for all persons in detention. The Standard Minimum Rules for the Treatment of Prisoners, The Basic Principles for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons Under any form of Detention or Imprisonment establish the consensus that detainees are entitled to a standard of medical care equivalent to that available in the general community, without discrimination based on their legal status.119 International standards support the confinement of administrative and pre-trial detainees in non-punitive conditions.120

In some cases, state obligations to protect prisoners’ fundamental rights, in particular the rights to be free from ill-treatment, the right to health, and ultimately the right to life, may require states to ensure a higher standard of care than is available to people outside prison who are not wholly dependent upon the state for protection of those rights.121 In prison, where most material conditions of incarceration are directly attributable to the state, and inmates have been deprived of their liberty and means of self-protection, the requirement to protect individuals from risk of torture or ill treatment can give rise to a positive duty of care, which has been interpreted to include effective methods of screening, prevention and treatment of life-threatening diseases.122

The Equivalence Standard

Human Rights Watch maintains that all prisoners, whether administratively or criminally detained, are entitled to adequate and appropriate medical care in compliance with human rights standards and medical best practice. While no US court has yet articulated in detail what is “reasonable” health care for administrative detainees, “reasonable” should equate to medical care that meets human rights standards and medical best practice. In line with human rights standards, correctional health experts, in the US and internationally, consider that prison health care should meet the “equivalence standard,” which means it should meet at least the same standards of health care applicable in the community. In the case of HIV/AIDS, US correctional health experts have made clear that this standard reflects the principle that “the medical management of HIV-positive inmates…should parallel that offered to individuals in the non-correctional community.” 123 Specifically, “medical care must meet the professional standards of the community and be performed by appropriately trained and credentialed providers who are properly supervised and who use clinical protocols.”124

Key elements of the standard of equivalence for HIV/AIDS care in a correctional setting, as detailed by the National Commission on Correctional Health Care and the American Public Health Association include:

  • HIV prevention education, availability and promotion of  voluntary testing, and counseling;

  • Adherence to Center for Disease Control, Department of Health and Human Services or other nationally accepted clinical protocols for the treatment of HIV;

  • Consultation and/or supervision of  HIV-related care by clinicians with expertise in HIV care;

  • Procedures to ensure maintenance of confidentiality in a correctional setting125

    • Yet, medical care for detainees failed to meet any of the key elements of the “equivalence standard” outlined:

    • ICE has no program for voluntary testing, education or counseling detainees with HIV/AIDS
    • The Detention Standard for HIV/AIDS makes no reference to the nationally accepted clinical protocols for the treatment of HIV/AIDS
    • The Detention Standard for HIV/AIDS fails to require training or consultation with specialists for physicians treating detainees with HIV/AIDS
    • The Detention Standards inadequately address the issue of confidentiality, leaving detainees with HIV/AIDS exposed to discrimination and harassment. Gay and transgender detainees are particularly vulnerable to discrimination.126

    International Guidelines for the Treatment of Prisoners with HIV/AIDS

    The World Health Organization (WHO) Guidelines on HIV Infection and AIDS in Prison, the UNAIDS International Guidelines on HIV/AIDS and Human Rights, and the UN Office of Drug and Crime (UNODC) HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings provide guidance to states on protecting prisoners’ fundamental right to HIV/AIDS prevention and medical care.127 These documents establish international best practices with regard to prison HIV/AIDS care, and uniformly underscore the principle of equivalence. As stated by the UNODC:

    The following principles reflect the international consensus on effective prison management and the ethical treatment of prisoners as defined in various international health, HIV/AIDS and human rights instruments…Prisoners are entitled, without discrimination, to a standard of health care equivalent to that available in the outside community, including preventive measures.128

    Providing health care equivalent to that available in the community includes access to voluntary testing and counseling; adequate access to licensed health care providers (registered nurses, licensed physicians, and specialty care); laboratory and diagnostic testing at appropriate intervals;  access to anti-retroviral and other medications when medically necessary and continuity of care.129

    International standards also require protection of the confidentiality of medical information for prisoners with HIV/AIDS:

    Information on the health status and medical treatment of prisoners is confidential and should be recorded in files available only to health personnel….Routine communication of the HIV status of prisoners to the prison administration should never take place. No mark, label, stamp or other visible sign should be placed on prisoners’ files, cells or papers to indicate their HIV status.130

    Under international guidelines, health services shall be provided to prisoners “free of charge.”131



    102 U.S.C. Sec. 1103 (a) (1).

    103 Roman v. Ashcroft, 340 F3d 314, 320 (6th Cir. 2003).

    104 Estelle v. Gamble, 429 U.S. 97, 100 (1976), citations omitted.

    105 Estelle, supra, p. 104.

    106 Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003); Montgomery v. Pinchak, 294 F.3d 492 (3d Cir. 2002).

    107 Wong Wing v. United States, 163 U.S. 228 (1896).

    108 See, e.g.,Youngberg v. Romeo, 457 US 307 (1982) ; Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004); Haitian Centers Council, Inc. v. Sale, 823 F. Supp. 1028 (EDNY, 1993).  But see, Lancaster v. Monroe County, Ala. 116 F.3d 1419,1425  (11th Cir. 1997)  (8thh amendment standard applied to medical care for pre-trial detainees)

    109 Jones, supra, at 934.

    110 Haitian Centers Council, supra, at 1043. 

    111 Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), Article 25; International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted December 16, 1966 (G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N. T.S. 3, entered into force January 3, 1976 (Article 12); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted December 18, 1979, GA Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc A/34/46, entered into force September 3, 1981 (Article 12); Convention on the Rights of the Child (CRC), adopted November 20, 1989, GA Res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/ 44/49 (1989), entered into force September 2, 1990, Article 24.

    112 ICESCR, supra, Article 12.

    113  Signed October 5, 1977.

    114 Vienna Convention on the Law of Treaties (VCLT), adopted May 23, 1969, entered into force January 27, 1980, Article 18.

    115  International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc.A/6316 (1966), 999 UNTS 171, entered into force March 23, 1976, ratified by the U.S. on June 8, 1992, arts. 6,7 10(1).

    116 Manfred Nowak’s authoritative treatise on the ICCPR discusses the impact of rights conferred under the ICCP to the right to health, e.g. the right to privacy as it relates to medical confidentiality. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein: N.P. Engel, 1993) p. 296.

    117 ICCPR,  supra, Articles 6,7 and 10(1).

    118 UN Committee on Human Rights, General Comment No. 21, Article 10, Humane Treatment of Prisoners Deprived of their Liberty, UN Doc. HRI/Gen/1/Rev.1 at 33 (1994), para. 3.

    119 United Nations Standard Minimum Rules for the Treatment of Prisoners, May 13, 1977, Economic and Social Council Res., 2076 (LXII); Basic Principles for the Treatment of Prisoners, UN General Assembly Resolution 45/111 (1990); Body of Principles for the Protection of All Persons Under any form of Detention or Imprisonment, UN General Assembly Resolution 43/173/(1988).

    120 UN Standard Minimum Rules, supra, para.8.

    121 See, Rick Lines, “From equivalence of standards to equivalence of objectives: the entitlement of prisoners to standards of health higher than those outside prisons,” International Journal of Prisoner Health, vol 2 (2006), p. 269.

    122 See, e.g. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT Standards, CPT/IN/E2002, para. 31.

    123 National Commission on Correctional Health Care, Position Statement, “Administrative Management of HIV in Corrections”, supra.

    124 American Public Health Association, Standards for Health Care in Correctional Institutions, (2003) p. 2.

    125 NCCHC Position Statement, supra, pp.1-4; APHA Standards, supra, p.2; pp. 67-70.

    126 For an account of the linkage between transgendered prisoners, HIV/AIDS and discrimination, see Sylvia Rivera Law Project, “It’s War in Here: A Report on the Treatment of Transgender and Intersex People in New York State Prisons, (New York: 2007).

    127 WHO Guidelines on HIV Infection and AIDS in Prisons (1999); UNAIDS International Guidelines on HIV/AIDS and Human Rights (2006), para 130; UNODC, HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A Framework for Effective National Response (2006).

    128 UNODC “Framework”, supra, General Principles, page ix.

    129 WHO Guidelines, supra, paragraphs. 34-40; UNODC, pp.18, 41.

    130 WHO Guidelines,supra, paragraphs. 31, 33.

    131 UNODC, supra, p. 22.


    December 2007

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