April 20, 2007 7:04 AM

That scream you heard was the death of due process

Man with tuberculosis jailed for not wearing mask

PHOENIX, Arizona (AP) — Behind the county hospital’s tall cinderblock walls, a 27-year-old tuberculosis patient who spent years living in Russia sits in a jail cell equipped with a ventilation system that keeps germs from escaping. Robert Daniels has been locked up indefinitely, perhaps for the rest of his life, since last July. But he has not been charged with a crime. Instead, he suffers from an extensively drug-resistant strain of tuberculosis, or XDR-TB. It is considered virtually untreatable. County health authorities obtained a court order to lock him up as a danger to the public because he failed to take precautions to avoid infecting others. Specifically, he said he did not heed doctors’ instructions to wear a mask in public.

If you had told me prior to 9.11 that in America an individual could be incarcerated, his freedoms taken away, denied access to a television, radio, computer, or telephone, and refused even the opportunity to shower, I would have laughed at you. Surely here in America, where the rule of law is king, this sort of thing couldn’t happen, could it? Well, welcome to the world of Robert Daniels, whose existence has taken on the characteristics of a Franz Kafka novel. He’s committed no crime, and yet there he is, treated like a common criminal in a cell with no idea of when he’ll regain his freedom. He’s not been convicted of committing a crime, and he’s behind bars because of a court order. Welcome to America; I’d never thought I’d see the day when an innocent person would be held against his will indefinitely with no hope of redress or appeal.

Don’t get me wrong; I understand the reason why Daniels is behind bars. He is without a doubt a significant public health risk. His virulent, virtually untreatable strain of tuberculosis, combined with his refusal to take basic measures to protect those around him, do create a significant problem for public health officials. Even so, locking someone up who hasn’t committed a crime, and effectively throwing away the key, seems a very draconian measure in a country that lives by the grace of the rule of law.

What I find even more disturbing is that Daniels is not the only American in this Kafkaesque legal limbo. In fact, this sort of thing happens more often than you might think.

Though Daniels’ confinement is extremely rare, health experts say it is a situation that U.S. public health officials may have to confront more and more because of the spread of drug-resistant TB and the emergence of diseases such as SARS and avian flu in this increasingly interconnected world.

“Even though the rate of TB in the U.S. is at the lowest ever this last year, we live in a globalized world where, if anything emerges anywhere, it could come to our country right away,” said Mark Harrington, executive director of the Treatment Action Group, an American advocacy group.

It’s a question with no good answer: How DO you protect Americans from virulent communicable diseases in an increasingly small world, where a rare and virulent African disease is a few short hours on a plane away from American soil? Incarceration may “solve” an immediate problem, but what about the long term?

“Involuntary detention should really be your last resort,” Harrington said. “There’s a danger that we’ll end up blaming the victim.”

You mean, sort of like Robert Daniels?

In the United States, which had a total of 13,767 reported cases of tuberculosis in 2006, public health authorities only rarely have put TB patients under lock and key.

Texas has placed 17 tuberculosis patients into an involuntary quarantine facility this year in San Antonio. Public health authorities in California said they have no TB patients in custody this year, though four were detained there last year.

In a country governed by the rule of law, an individual can be locked up with no recourse or hope for appeal. Shouldn’t that scare the Hell out of us? Shouldn’t we be wondering if this sort of thing, once it becomes more widely recongized, could also be put to wider and more frequent use? If someone can be locked up without recourse for medical reasons, how long before it’s being done for political or ideological reasons?

I don’t know what the answer to this dilemma is. Robert Daniels poses a clear and present danger to public health and safety, but does that give the state the right and authority to simply lock him up and throw away the key? Though I generally write about subjects I have strong feelings and opinions about, I can honestly say that I don’t know what the answer to this quandary is. What I do know is that it’s an issue that needs to be addressed before increasing numbers of people are locked away by the state for an ever-increasing list of reasons and justifications. If an American can be locked up and the key thrown away without due process for having an incurable communicable disease, how long before one can be locked for purely ideological or political reasons? If we don’t find an answer, it may be sooner than we think.

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This page contains a single entry by Jack Cluth published on April 20, 2007 7:04 AM.

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