I wrestled for hours over a funny, witty, or at least acerbic opening to this post.  The best I could do is the headline above.  But there’s nothing funny to say here.  Francisco Castaneda underwent months of torture.  His penis was amputated, and he died soon thereafter.  The Federal government is directly responsible.

Why did this happen to Castaneda?  Was he a terrorist?  Did Castaneda get rough treatment at Guantanamo during attempts to extract information?  No. Castaneda ran afoul of the government for possessing a small quantity of crystal meth, and it happened in San Diego.  It happened by reason of neglect.

The government insists that what happened to Castaneda was not cruel and unusual punishment.  Well, maybe it was cruel, but it wasn’t unusual, and it wasn’t punishment.  After all, no court sentenced Castaneda to torture.  No judge ordered his penis amputated.  Castaneda served his time for the meth possession, all three and a half months of it.  His death was an unintended accident.  And the government insists it’s not responsible.  Or at least, if it is, the government shouldn’t have to pay for it.

February 2006:

• Castaneda, a legal resident of the United States but a citizen of El Salvador, completes his sentence for possession of drugs.  He is to be transferred to a holding facility of Immigration and Customs Enforcement (ICE), for deportation.
• In February 2006, shortly before transfer to ICE for deportation, Castaneda complains of pain in his groin, back, and kidneys.  He reports a sore on his penis.  He is referred for “urgent medical care,” (to a urologist or oncologist) as in any emergency room these problems would be recognized as classic, early, and easily treatable signs of penile or prostate cancer.
• In February 2006, the referral is denied.  Castaneda’s cancer goes untreated.
• In March 2006, still suffering cancer but his sentence served, Castaneda is transferred to San Diego’s ICE detention facility, pending review of his case and deportation.  Castaneda complains of a lesion on his penis and increasing pain.  His penis is observed to show “necrotic” (dying) tissue.  A physician’s assistant recommends “urology consult” and biopsy (again, a recognition of possible cancer) as soon as possible.  The recommendation is denied.  Instead, Castaneda gets ibuprofen.
• In June 2006, still suffering cancer, still in immigration detention though his sentence has been served, and four months after his cancer has become obvious enough that a medical assistant recognizes the danger, Castaneda finally sees a doctor, who recommends immediate biopsy and treatment.  The recommendation is denied.  Castaneda is given more ibuprofen instead.
• Days later, his penis suppurating, a health review concludes that Castaneda does not have cancer, because there is no evidence of cancer from a biopsy.  Of course, no biopsy has been performed.  Castaneda receives more pain medication.
• July 2006: “The lesion on his penis is draining clear, foul malodorous smell.  The foreskin is bleeding at this time and the patient states his colon feels swollen.”  Castaneda still has no biopsy, and no diagnosis.  He is still held by the government.  He receives more pain medication, but is untreated.
• Later in July 2006, Castaneda finally sees an outside doctor, but no biopsy is performed.  He is sent back to detention, with a note that this may be genital warts.
• In August 2006, another outside physician recommends biopsy and surgery, for a penis which at this time has been described as “exploding”.  The request is denied.  Castaneda remains in detention.
• In November 2006, still in detention, Castaneda still has received no treatment, but he is given extra pairs of boxer shorts, by kindly guards, because of the blood stains that soil his government issued underwear.
• In February 2007, a year after his symptoms became so noticeable that prison employees could ascertain them, Castaneda at last receives his biopsy.  The diagnosis?  Penile cancer, probably metastatic, probably terminal.

Castaneda, finally, is transferred to a Los Angeles medical facility then released from ICE custody on humanitarian grounds, as he is a dead man walking.  The dead man walks into UCLA Medical Center, where doctors recognize the extent of the problem and his penis is amputated.

The cancer, of course, by this time has metastasized and is terminal.  Goodbye Francisco Castaneda.  Perhaps you should have had that looked at by a doctor.  Castaneda died last February.  Remarkably, before his death, he was able to make this statement before a congressional committee investigating the conditions under which ICE holds prisoners awaiting deportation:

I am a 35-year-old man without a penis, with my life on the line. I have a young daughter, Vanessa, who is only 14. She is here with me today because she wanted to support me — and because I wanted her to see her father do something for the greater good, so that she will have that memory of me. The thought that her pain — and mine — could have been avoided almost makes this too much to bear.

I had to be here today because I am not the only one who didn’t get the medical care I needed. It was routine for detainees to have to wait weeks or months to get even basic care. Who knows how many tragic endings can be avoided if ICE will only remember that, regardless of why a person is in detention and regardless of where they will end up, they are still human and deserve basic humane medical care.

In many ways, it’s too late for me. Short of a miracle, the most I can hope for are some good days with Vanessa and justice.

One hopes that Castaneda had some good days with his daughter before he died.  To date, his daughter has gotten no justice.

Castaneda’s estate is suing the government over what, to my eye and I’ve handled medical malpractice cases, is one of the most shocking and horrific stories of medical neglect and abuse I’ll ever run across.  A resident, a fourth year medical student, hell, a lawyer who reads a lot of medical records, could have given Castaneda better, and more timely, treatment than what he received from the government.  Doctors in El Salvador, had Castaneda been timely deported, would have given him better treatment, and probably would have saved his life.

But the government, while it admits that it was negligent in failing to treat Castaneda, and this is important, claims that its mishandling of Castaneda while he was imprisoned did not amount to “cruel and unusual punishment,” which is prohibited by the Eighth Amendment to the United States Constitution.  If what happened to Castaneda was not a constitutional violation, the estate’s damages are limited to the relatively paltry sum of $250,000.  (Ask Francisco Castaneda if you can find him, or his daughter if you can’t, whether his life was worth that amount.)

The argument goes something like this:  While what happened to Castaneda was awful, he wasn’t sentenced to suffer months of torture and humiliation (a fair description of what more than a year of cancer feels like) by a court.  Therefore, though the result was certainly cruel (even in Saudi Arabia, they don’t amputate the penis) and unusual, it was not “punishment” prohibited by the Constitution.

It was just a regrettable byproduct of bureaucrats not doing their jobs.

The government’s argument has failed so far.  It failed in District Court and suffered a further setback before the oft-reversed Ninth Circuit Court of Appeals, which has ruled that the Castaneda estate can pursue the full measure of its damages for negligent torts and constitutional violations against Mr. Castaneda.  But the government, rather than doing the decent thing and settling for a fair sum, is petitioning for review by the Supreme Court.

What happens next remains to be seen.  In Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992), a case involving a prisoner who suffered a brutal beating, but no permanent injury, at the hands of his guards, Justices Thomas and Scalia, in dissent, argued that the Eighth Amendment didn’t apply to Hudson’s beating, as Hudson, like Captain Solo, had not been permanently damaged.  Therefore the beating was neither cruel nor unusual under a Constitutional standard.  Merely a regrettable incident that could happen to any prisoner.

Of course, under that standard, one could defend sodomy with a broken broomstick, Chinese water torture, or being forced to watch Adam Sandler films.

While even Rehnquist didn’t buy that, who knows what the Court of these enlightened and progressive times may hold?  The Ninth is the most reversed Federal appellate court.  They probably let their bleeding hearts run ahead of their fancy law school educations on reading this horrible, tragic, and entirely unnecessary story.  Just like I did.  After all, Castaneda wasn’t sentenced to torture or castration, and we all have to die sometime.  That Castaneda died early was just one of life’s little accidents.  Like Hudson, what happened to Castaneda was entirely incidental to his detention.

It could happen to anyone.  Including you and me.

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