Of Mice and Men: On the Seclusion of Immigration Detainees and Hospital Patients

With a special focus on federal provisions strictly regulating Medicare-participating hospitals\u27 use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE\u27s Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are inappropriate guidelines for use in the immigration detention context. Borrowing the philosophy behind legally enforceable federal patients\u27 rights laws that govern the use of seclusion in hospitals, this Article proposes to reform the unenforceable standards governing the use of seclusion in immigration detention centers. It takes a novel approach by proposing to correct the abuse of the seclusion intervention in immigration detention by drawing on established frameworks in health law and bioethics. Specifically, this Article highlights the philosophical differences between federal health laws that are designed to protect the health, safety, and welfare of hospital patients and ICE\u27s unenforceable standards that fail to protect immigration detainees. It offers nine specific recommendations that, if promulgated by the Department of Homeland Security into federal regulations, would improve the health, safety, and welfare of immigration detainees