Broadview Detention Center. (Photo: Carrie Sloan)

The mentally ill reside on the edges of American society, floating in and out of social services, on and off the streets, and undeniably, in and out of the criminal justice system. Their marginal and often stigmatized status in our society pushes them to the fringes, where they inevitably interact with law enforcement. According to a 2006 Federal Bureau of Justice Statistics report, over half of the population behind bars in the U.S. has a mental health problem.

It’s sadly predictable, then, to read a new joint report by Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU), which documents the place of the mentally disabled within the immigration detention system. The author of the report, Sarah L. Mehta, an Aryeh Neier Fellow, argues that the mentally disabled, who make up 15 percent of the detained population, lack adequate safeguards and care while in the detention system. Most disturbing is the fact that while detainees are entitled to an attorney, they are required to pay for one themselves. The financial burden results in at least 61% representing themselves.

On Monday, August 2, HRW and the ACLU filed a lawsuit in a federal central district court in Los Angeles, arguing that immigrant detainees with mental illness should have the right to an attorney at no cost.

The idea of a mentally disabled person representing themselves in court when they can’t even understand what is going on seems ludicrous. The stakes are perilously high: detainees are facing deportation from the U.S., the country where many have been living for the majority of their lives, and quite possibly the only place in the world that offers a mental health support system that keeps their fragile lives together.

Furthermore, the double standard between the criminal justice system and the immigrant justice system is astounding. Defendants in U.S. criminal court with mental disabilities preventing them from understanding the charges, court proceedings, or even the fact he or she is facing punishment are often excluded from that punishment. In all cases, they are provided with the option of a public defense attorney. But if they find themselves facing a deportation order, that all goes out the window. Mehta writes,

“In contrast, immigration courts have no substantive or operative guidance for how they should achieve fair hearings for people with mental disabilities, aside from a general statement in the statutes that the US attorney general must provide ‘safeguards’ for individuals who cannot participate in proceedings by reason of their ‘mental incompetency.’”

The report demonstrates that in practice, that safeguard is visibly insufficient. If no family member or friend is found to act as the mentally ill detainee’s court “custodian,” by default, ICE representatives assume that role — a blatant conflict of interest.

“This is akin to having a jail warden act as defense attorney for someone accused of committing a crime, and violates basic standards of fairness,” writes Mehta.

The Human Rights Watch researcher found that legal residents with mental health problems who wind up in immigrant detention often languish in the system for years.

“When an immigrant clearly needs help because he cannot answer basic questions like where he was born or what the date is, judges understandably feel they cannot continue with the case,” Mehta said in a press release. “So immigrants languish in detention for years while their legal files – and their lives – are put on indefinite hold.”

Some legal residents–and even citizens–are mistakenly deported due to cracks in the system:

• “In May 2007, Pedro Guzman, a 29-year-old US citizen with developmental disabilities, was apprehended by ICE at a county jail in California where he was serving a sentence for trespassing. He was deported to Mexico, where he was lost for almost three months before he was located and returned to his family in California.
• In December 2008, US citizen Mark Lyttle, diagnosed with bipolar disorder and developmental disabilities, was deported to Mexico (and from there to Honduras and then Guatemala). It took four months for Lyttle to return to the US; ICE officials maintain that Lyttle signed a statement indicating he was a Mexican national.”

Human Rights Watch and the ACLU say these are abuses of human rights law. Clearly, not every detainee with mental illness deserves to remain in the United States. But they all deserve due process. The lawsuit is calling for non-citizens with mental health disabilities to be appointed a lawyer, as well as the establishment of a standard for mental health competency evaluations in immigration court proceedings. That seems sane to me.