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The government’s reaction to COVID-19 in jails and ICE detention facilities must follow settled legal precedent on acceptable conditions of confinement. The pandemic does not change that clear obligation. American officials must adhere to the Constitution, now more than ever, for the consequences of failure are dire.

First consider the due-process clause of the Fifth Amendment. The Supreme Court has held that this provision protects immigrants in ICE custody. The Fifth Amendment also safeguards pretrial detainees, who have been charged with a crime but not yet tried—and who, by law and custom, must be presumed innocent. Under Fifth Amendment jurisprudence, when the government takes a person into custody, it cannot inflict punitive conditions, affirmatively place that person in danger and then act with deliberate indifference, or otherwise fail to provide for their basic human needs (including medical care and reasonable safety).

Given the conditions at many ICE detention facilities, as well as state and federal jails, Fifth Amendment violations are likely widespread. Simply put, the government cannot constitutionally seize and detain people, subject them to a substantial risk of exposure to COVID-19, and then insist that inaction or half measures are acceptable.

Several lawsuits filed over the past weeks—including class-action lawsuits—have sought to force ICE to comply with that principle. This includes a case in which I represent several migrants who recently have been detained at a Los Angeles ICE facility notorious for inadequate health care and shoddy COVID-19 protocols. (I brought that case with Public Counsel and my colleagues at Kaplan Hecker & Fink LLP.)

To paraphrase the late Justice Antonin Scalia, ICE’s defense “taxes the credulity of the credulous.” Its main argument is that immigrants are safer in detention facilities than they were at home. This assertion defies common sense, expert opinion, and all available evidence. As the New York federal defender David Patton has remarked, “It feels a bit like arguing with the Flat Earth Society.” Even in ICE facilities that don’t yet have confirmed COVID-19 cases—which likely reflects a near-total absence of testing—the arrival of a single asymptomatic carrier could wreak havoc undetectable until it’s too late. No rational person would feel safer in an ICE detention facility than self-isolating at home with family.

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