SOLITARY CONFINEMENT: PUNISHMENT AT THE
CENTER STAGE OF IMMIGRATION DETENTION
Sarah Dávila-Ruhaak
1. Introduction
The use of solitary confinement in immigration detention has been at the center
stage of media, immigration reform, and the work of many immigrant’s rights
advocates. The conditions to which immigrants are subjected to in immigration
detention are no longer viewed as a domestic issue that belongs to exclusively to
immigration law. The treatment of immigrant detainees should also be
contextualized within the discourse of universal human rights protections that are
afforded to all persons irrespective of their immigration status.
This article will briefly explore the use of solitary confinement in immigration
detention as a central punitive feature of the criminalization of immigration
detention. It argues that at the core of the normative and practical reality of
immigration detention, the treatment of detainees is based on the concept of
punishment as a central focus anchoring the penal nature of the immigration
system today, which is in contravention of the United States’ international
obligations.
As a human rights advocate, I do not have expertise in immigration law and
would not attempt to discuss this issue within the complex realm of the
immigration regulatory system. Through this article, I will discuss the practice of
solitary confinement in immigration detention within the international human
rights framework to explore the United States’ failure to uphold its domestic and
international obligations, the need to abandon the use of solitary confinement, and
to move away from detention in favor of alternatives to detention.
2. Criminalization of Immigration Detention
Immigration law and enforcement has become closely intertwined with criminal
law norms and practices, while excluding basic domestic protections for
immigrant detainees.1 Some of the constitutional protections available to
detainees with criminal convictions that are not available to immigrant detainees
are: the right to a trial under Article III, the right to appointed counsel, the right
against incrimination, protection against double jeopardy, and the formal
1
Juliet Stumpf, Fitting Punishment, 66 WASH. & LEE L. REV. 1683, 1685-1686 [hereinafter
Fitting Punishment].
1
recognition of the prohibition of cruel and unusual punishment.2 Some argue,
however, that the prohibition of cruel and unusual punishment is not truly
available to noncitizens.3
The overlap between criminal and immigration law has been the creation of a
police-like enforcement and the increase of the punishment by incorporating
criminal sanctions of incarceration.4 “More immigration violations now constitute
crimes, and prosecution of immigration-related crimes has increased greatly.5
In the criminal context, constitutional protections under the Eighth Amendment
require that the punishment assigned is proportionate to the gravity of the
criminally convicted person.6
3. Immigration Detention in Context
Historically courts have treated immigration-related exclusions, deportation and
detention, as civil remedies, not as punishment comparable to criminal sanctions.7
Recently, there has been a shift in the public and institutional perceptions of
immigrants from a more positive perception of the “hard-working” person seeking
a better life to a negative perception of the “criminal” likely to engage in future
criminal acts by virtue of entering the country unlawfully.8 As a reflection of the
2
Fitting Punishment, supra note 1, at 1687; See United States Constitution, articles III, V, VI,
VIII; See also Knauff v. Shaughnessy, 338 U.S. 537, 543-44 (1950); Fong Yue Ting v. United
States, 149 U.S. 698, 713-14 (1893); Vides-Vides v. INS, 783 F.2d 1463, 1469-70 (9th Cir. 1986);
United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975); Burquez v. INS, 513 F.2d 751,
755 (10th Cir. 1975); Bilokumsky v. Tod, 263 U.S. 149, 155 (1923); Urbina-Mauricio v. INS, 989
F.2d 1085, 10989 n.7 (9th cir. 1993); Elias v. Gonzalez, 431 F.3d 268, 276 (6th Cir. 2005).
3
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213-14 (1953); Knauff v.
Shaughnessy, 338 U.S. 537, 544 (1950).
4
The Crimmigration Crisis: Immigrants, Crime and Sovereign Power, by Juliet Stumpf, 56 AM.
U. L. REV. 367, 391 (2007) [hereinafter Crimmigration Crisis]; see also, Teresa Miller,
Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J.
611, 635-37 (2003) [hereinafter Citizenship & Severity].
5
Fitting Punishment, at 1685, Immigration Reform and Control Act (IRCA) of 1986 § 101,8
U.S.C. § 1324a(f) (2006); Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546-3009- 724; see also Stephen H.
Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice
Norms, 64 WASH. & LEE L. Rev. 469, 477-78 (2007) (noting that "[s]ince 1986, Congress has
liberally expanded the list of immigration offenses"); Crimmigration Crisis, supra note 4, at 384.
6
Fitting punishment, supra note 1, at 1688; Locker v. Andrade, 538 U.S. 63, 72 (2003)
(supporting the idea that grossly disproportionate criminal sentences violate the protection against
cruel and unusual punishment under the Eighth Amendment); see also U.S. Sentencing Guidelines
Manual, § 5A (2008).
7
Crimmigration Crisis, supra note 4, at 394; see also INS v. Lopez-Mendoza, 468 U.S. 1032,
1050 (1984); see Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893); Briseno v. INS, 192
F.3d 1320, 1323 (9th Cir. 1999); Oliver v. INS, 517 F.2d 426, 428 (2d Cir. 1975).
8
Crimmigration Crisis, supra note 4, at 395; Bill Ong Hing, The Immigrant as Criminal:
Punishing Dreamers, 9 HASTINGS WOMEN’S L.J. 79, 79-80, 85-87 (1998); Melinda Smith,
Criminal Defense Attorneys and Noncitizen Clients: Understanding Immigrants, Basic
2
shift in public opinion, there has been a shift in policy to criminal penology in the
immigration system incorporating retribution, deterrence, and incapacitation.9
Some scholars argue that the emphasis on retribution, deterrence and
incapacitation, which are essentially criminal law concepts, are apparent through
the use of deportations.10 It is the position of this article that beyond deportation,
the treatment of detainees, especially the use of solitary confinement is central to
the criminalization of the immigration system. Solitary confinement is not only
generally accepted as a harsh punishment with irreversible consequences, but it
violates the right to due process, and the right to humane treatment.
4. Criminalization of Immigration through the Use of Solitary
Confinement
U.S. Immigration and Customs Enforcement (hereinafter “ICE”) and detention
centers around the country handle approximately 34,000 immigrants daily, with
an annual figure of 400,000.11 Since 2005 the number of immigrants detained has
increased to a worrisome 85 percent.12 “Nearly half are isolated for 15 days or
more” which represents the limit at which point psychiatric and other experts
recognize as causing severe mental harm.13
Solitary confinement is a “form of segregation in which individuals are held in
total or near-total isolation.”14 Detainees in solitary confinement are held in small
individual cells for 23 to 24 hours a day. During the segregation, detainees are
prevented from having access to the same treatment as to the rest of the
population, including the access to recreation, visitation, and other privileges.15
The use of solitary confinement is not a contemporary creation. Solitary
confinement has been central to prison systems since the early 19th century.16
Researchers have concluded that the use of solitary confinement through the use
Immigration Law & How Recent Changes in Those Laws May Affect Your Criminal Cases, 33
AKRON L. REV. 163, 169-71 (1999); See also, The New Path of Immigration, at 500.
9
Juliet Stumpf argues that this shift has occurred in criminal penology. Crimmigration Crisis, at
402.
10
Crimmigration Crisis, at 402; The New Path of Immigration Law: Asymmetric Incorporation of
Criminal Justice Norms, Stephen H. Legomsky, 64 WASH. & LEE L. REV. 469, 471 (2007)
[hereinafter The New Path of Immigration].
11
National Immigration Justice Center & Physician for Human Rights, Invisible in Isolation: The
Use of Segregation and Solitary Confinement in Immigration Detention, 3 (Sept. 2012)[hereinafter
Invisible in Isolation].
12
Invisible in Isolation, at 3.
13
Ian Urbina, Immigrants Held in Solitary Cells, Often for Weeks, THE NEW YORK TIMES, Mar.
23, 2013, available at: http://www.nytimes.com/2013/03/24/us/immigrants-held-in-solitary-cellsoften-for-weeks.html?pagewanted=all&_r=0 [hereinafter Immigrants Held in Solitary Cells].
14
Invisible in Isolation, supra note 11, at 2; "Solitary Confinement Facts." American Friends
Service Committee. N.p., n.d. Web. 03 May 2013
15
Invisible in Isolation, at 2.
16
Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and
Review of the Literature, CRIME AND JUSTICE, Vol. 34, No. 1, 441-528, 441 (2006).
3
of segregation units may amount to psychological torture.17 “The medical
evidence shows indisputably that even relatively short periods in solitary
confinement can cause irreversible damage, especially to the vulnerable
people.”18 Within the context of immigration detention, detainees who have been
subject to solitary confinement may suffer from severe anxiety, depression and
post-traumatic stress from their experience in segregation.19
A. Solitary Confinement as Punishment
The immigration and criminal justice system converge in the central principle of
severity and deterrence.20 Many authors recognize that there has been a
“criminalization” of the immigration system.21 Punishment is central to the
concept and use of solitary confinement as the ultimate tool of criminalization of
the immigration detention.
Punishment within detention has the central feature of incapacitating, managing
detainees as an administrative tool, and deterring the detainee population from
challenging the detention center’s authority.22 The concepts of incapacitation and
deterrence have been widely recognized as a form of punishment in the criminal
context.23 Punishment renders detainees “vulnerable to the state” so profoundly
that it creates a special obligation of the State.24
Because proportionality is absent from the legal immigration framework in the
implementation of sanctions as a central concept of criminal punishment,25 the
17
See generally, COHEN, S. AND TAYLOR, L.,PSYCHOLOGICAL SURVIVAL: THE EXPERIENCE OF
LONG-TERM IMPRISONMENT. 2nd ed. Harmondsworth, Penguin Books (1972, 1981).
18
Statement by Christy Fujio, director of the Asylum Program at the organization Physicians for
Human Rights. “Abolish Solitary Confinement in Immigration and National Security Facilities,
PHR Urges,” Press Release, available at: http://physiciansforhumanrights.org/press/pressreleases/abolish-solitary-confinement.html
19
Buried Alive: Solitary Confinement in the U.S. Detention System, Physicians for Human Rights,
available at: https://s3.amazonaws.com/PHR_Reports/Solitary-Confinement-April-2013-full.pdf,
at 32 [hereinafter Buried Alive].
20
Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After
September 11th, 25 B.C. THIRD WORLD L.J. 81, 83 (2005) [hereinafter Blurring the Boundaries].
21
Blurring the Boundaries, at 83; See generally, Nora v. Demleitner, Immigration Threats and
Rewards: Effective Law Enforcement Tools in the “War” on Terrorism?, 51 EMORY L.J. 1059
(2002); Nora V. Demleitner, Misguided Prevention: The War on Terrorism as a War on
Immigrant Offenders and Immigration Violators, 40 CRIM. L. BULL. 550 (2004); Citizenship &
Severity, supra note 4, at 616; Blurring the Boundaries, at 83.
22
See Crimmigration Crisis, supra note 4, at 403; David Garland, The Culture of Control: Crime
and Social Order in Contemporary Society 34-35, U. CHICAGO PRESS (2001).
23
Alice Ristroph, State Intentions and the Law of Punishment, THE JOURNAL OF CRIMINAL LAW
AND CRIMINOLOGY, Vol. 98, No. 4, 1353-1460, 1379 (Summer 2008) [hereinafter State
Intentions].
24
State Intentions, at 1405.
25
Fitting Punishment, supra note 1, at 1685; See also USSG § 1A1 (2008) (proportionality must
be established according to the severity of the criminal conduct).
4
State has the ultimate control in managing and influencing a detainee’s physical
and emotional state.
5. Immigration Policies on Detention
In general, ICE detainees are placed in detention centers for the purpose of
assuring that they appear in the removal and deportation proceedings (civil). The
process is allegedly not designed to punish detainees, but to assure to the effective
functioning of the deportation and removal proceedings. ICE has the authority and
discretion to adopt and implement policies relating to immigrant removal and
relief.26
The reality of immigration detention is, however, critically intertwined with the
criminal penal system. Immigrant detainees are held in the same facilities as
criminally convicted persons and subjected to the same treatment.
With only a few exceptions, the facilities that ICE
uses to detain aliens were built, and operate, as jails
and prisons to confine pre-trial and sentenced felons.
ICE relies primarily on correctional incarceration
standards ... and on correctional principles of care,
custody, and control. These standards impose more
restrictions and carry more costs than are necessary
to effectively manage the majority of the detained
[immigrant] population.27
State and local law enforcement agencies enter into agreements with ICE, under
which they are deputized and carry out government functions on behalf of the
federal government in regards to civil detention.28 For our discussion, the central
function that is particularly important is that immigrant detainees in deportation or
removal proceedings are held in the same facilities as criminally convicted
persons and are subjected to the same policies. Through our research we have
found that many detention centers (whether county jails, prisons, or other
detention facilities) do not distinguish immigrant detainees from the general
population either because they cannot distinguish them or because they implement
the detention center’s internal policies irrespective of the detainees legal status.29
The practice of treating immigrant detainees as indistinguishable of criminally
convicted persons is in contravention of the contractual obligations under the ICE
contracts. Specifically, detention centers are required to comply with ICE
Daniel Kanstroom, The Better Part of Valor: The Real ID Act, Discretion, and the “Rule” of
Immigration Law, 51 N.Y.L. SCH.L.REV. 161, 166 (2006-2007).
27
Dr. Dora Schriro, former director, DHS Office of Detention Policy, at 3.
28
INA, 8 U.S.C. § 1357 (g) (2000).
29
Documents produced from Freedom of Information Act requests to ICE-contracted detention
centers, in the possession of The John Marshall Law School Human Rights Project.
26
5
standards as it applies to immigrant detainees while immigrant detainees are
housed in those detention centers.30
6. Immigration Policies Relating to the Use of Solitary Confinement
Immigration detention is regulated by three sets of standards: the 2000 National
Detention Standards (NDS)31, and the Performance-Based National Detention
Standards (PBNDS) of 200832 and 2011.33 A majority of facilities have adopted
and operate loosely under the guidelines of the 2000 and 2008 standards.34 Until
recently none of the abovementioned standards included specific guidelines
relating to the use of solitary confinement. The NDS and PBNDS only provided
for different types of segregation, but did not provide for effective mechanisms
limiting the use of solitary confinement. The protections that the 2011 PBNDS
provided for is the mandated daily face-to-face mental health assessments for
detainees in segregation35 and the notification to ICE when a detainee is in
segregation for over 30 days.36
Despite the existence of the 2011 PBNDS a majority of detention facilities have
not adopted them, and those facilities that have adopted them circumvent the
regulations relating to solitary confinement by releasing detainees after 29 days of
segregation, waiting one day, and then placing them in segregation the following
day.37 This failure to adopt the 2011 PBNDS and proactive circumvention of the
time limits defeats any protections provided in the standards.
30
Intergovernmental Service Agreement Between the United States Dept. of Homeland Security
U.S. Immigration and Customs Enforcement, Office of Enforcement and Removal Operations and
Karnes County (Dec. 7, 2010).
31
US Immigration and Customs Enforcement, 2000 Detention Operations Manual [hereinafter
2000 NDS], available at http://www.ice.gov/ detention-standards/2000/.
32
US Immigration and Customs Enforcement, 2008 Performance-Based National Detention
Standards [hereinafter 2008 PBNDS], available at http://www.ice.gov/detention-standards/2008/.
33
US Immigration and Customs Enforcement, 2011 Performance-Based National Detention
Standards [hereinafter 2011 PBNDS], available at http://www.ice.gov/detention-standards/2011/;
Buried Alive, supra note 19, at 12.
34
Id.
35
Invisible in Isolation, supra note 11, at 5; 2011 PBNDS, at Sect. 2.12.
36
Invisible at Isolation, at 5; 2011 PBNDS, at 154.
37
In 2012 the National Immigrant Justice Center and Physicians for Human Rights gathered data
reflecting this practice, which is documented in the Invisible in Isolation report. In 2013, law
student investigators from The John Marshall Law School Human Rights Project in Chicago have
discovered additional instances of persons being held for periods exceeding 30 days and even 60
days. See the ICCPR Shadow Report Concerning the Use of Solitary Confinement in Immigration
Detention Facilities in the United States of America, In Relation to the United States’ 4th Periodic
Report, Sept. 10, 2013, [hereinafter ICCPR Shadow Report]; Further documentation received from
FOIA requests are on file with The John Marshall Law School Human Rights Project.
6
As the government has been under serious criticism38 for failing to protect
criminally and non-criminally convicted detainees, such as immigrant detainees,
ICE has made an attempt to address its use of solitary confinement.
The recently adopted ICE Directive 11065.1 provides for increase in oversight
and reporting mechanisms when solitary confinement is used.39 Specifically, the
new directive provides that all detention facilities that have contracted with ICE
must report instances where solitary confinement is used, especially in cases of
vulnerable persons.40 It requires that solitary confinement should only be used as
a last resort. The new directive is intended to complement the requirements of the
2011 and 2008 PBNDS and the 2000 NDS.41
The directive is a step in the right direction, however, practice has continually
shown that the issuance of new policies by themselves are not sufficient. It is
clear from the language that the new directive does not provide for concrete
rights. “This document is an internal policy statement of ICE. It is not intended to,
does not, and may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by any party in any administrative, civil, or
criminal matter.”42 In addition, as discussed above, the 2008 and 2011 PBNDS,
and 2000 NDS are systematically circumvented as are other standards, such as the
Prison Rape Elimination Act43.
Even if the new directive is implemented, it is likely to be ineffective due to the
complex relationship between ICE and privately-owned or county-managed
detention facilities, and the long chain of command to be followed.44
Additionally, the lack of protection for those not qualifying as persons with
“special vulnerabilities,”45 may be targeted and at risk due to other reasons such
as religion, race or ethnic group identification.
38
Immigrants Held in Solitary Cells, supra note 13.
Review of the Use of Segregation for ICE Detainees, 11065.1, U.S. Immigration and Customs
Enforcement, September 4, 2013, available at http://www.ice.gov/doclib/detentionreform/pdf/segregation_directive.pdf [hereinafter ICE Directive]
40
Vulnerable persons include but are not limited to persons with mental illness, severe medical
illnesses or disabilities; pregnant or nursing women; elderly, or those susceptible to sexual assault
due to their sexual orientation, gender identity. See ICCPR Shadow Report, supra note 37, at 7;
ICE Directive, at para. 3.3.
41
Id.
42
Id., at para. 10.
43
Prison Rape Elimination Act of 2003, PUBLIC LAW 108–79, 108th Congress, Sept. 4, 2003.
44
ICE Directive, at para. 5.
45
Id., at para. 3.3.
39
7
7. International Protections Against the Use of Solitary Confinement
A. Right to Due Process
The right of due process has been widely recognized under international law.
Traditionally the right to due process recognizes the protection against abuses of
the legal system such as the lack of an effective remedy46 and excessive
punishments. More specifically, the right to due process includes the right to
access to legal resources and the right to representation, the right to access to
judicial remedies, and most importantly for our discussion the right to submit
complaints to the administration and receive a proper resolution.47
The Inter-American Commission has recognized that failing to provide immigrant
detainees of their due process rights would be contrary to the American
Declaration and as such the due process protections must be strictly enforced due
to the circumstances surrounding detention and severity of the possible
consequences.48
In addition, due process has been understood within the context of state
responsibility, in which the State is responsible for “any act or omission on the
part of the State bodies in a proceeding, whether of an administrative, punitive or
jurisdictional nature.”49
i. Delays and Lack of Reporting of Confinement in regards
to solitary confinement
In addition to the general principles of due process, detainees have the right to
receive “prompt” notice of the reasons for the detention or in the case of solitary
46
Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, art. 5, U.N. GAOR, 3d
Sess. 1st plen. Mtg., U.N. Doc. A/810 (Dec. 12, 1948), at art. 8 [hereinafter UDHR]; See also
American Declaration, O.A.S. Res. XXX, adopted by the Ninth International Conference of
American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992); at art. XVII [hereinafter American
Declaration]. The American Declaration has been a foundational instrument to establish
jurisdiction over claims against the United States. The United States is a signatory of the
American Declaration; International Covenant on Civil and Political Rights art. 9(4), Dec. 16,
1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 (1966) [hereinafter
ICCPR].
47
See e.g., ICCPR, at art. 14; see also Al-Jedda v. United Kingdom, No 27021/08, European Court
of Human Rights, Grand Chamber, at para 40 (July 7, 2011).
48
Report on Immigration in the United States Detention and Due Process, Inter-American
Commission on Human Rights, Inter-American Commission on Human Rights OEA/Ser L/V/II,
Doc 78/10 (30 December 2010) [hereinafter IACHR Report on Detention and Due Process]; InterAmerican Court of Human Rights, Advisory Opinion on The Right to Information on Consular
Assistance within the Framework of the Guarantees of Due Process of Law, OC-16/99, October 1,
1999, Inter-Am. Ct. H.R. (Ser A) No. 16 (1999).
49
Inter-American Court of Human Rights, Juridical Condition and Rights of the Undocumented
Migrants, Advisory Opinion OC-18/03 (September 17, 2003).
8
confinement, the reasons for the segregation.50 This right to notice provides
detainees with a right to dispute the validity or conditions of the detention
“without delay.”51
The reality reflects, however, that detainees fear that submitting complaints
relating to their detention conditions will negatively affect their case or their
treatment by prison personnel. In Washoe County, Nevada, seven detainees filed
an Inmate Grievance Form against prison personnel and as a consequence they
were removed from their housing blocks and were segregated. 52 By way of
segregation, the detainees were reminded of the State’s control, and that detainees
are subject to the degrading treatment by prison personnel. The use of solitary
confinement as a form of coercion to obstruct access to a legal remedy is clearly
in contravention of the right to due process.
B. Right to Humane Treatment
It is well-accepted principle that “[n]o one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.”53 The right to humane treatment
has been recognized as non-derogable due to its conception as an essential and
central protection in human rights.54 “The Universal Declaration of Human Rights
(UDHR), the International Covenant on Civil and Political Rights (ICCPR), and
the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), prohibit torture, inhuman or
degrading treatment or punishment.”55
50
ICCPR, supra note 47, at art. 9(4); See General Assembly, Hum. Rts. Comm., Report of the
Human Rights Committee, at para. 79(12), U.N. Doc. A/56/40 (2001); General Assembly, Hum.
Rts. Comm., Report of the Human Rights Committee, at paras. 100-11, U.N. Doc. A/52/40 (1997)
(stating that a waiting period of ninety-six hours before judicial review is violative of due
process); Invisible at Isolation, supra note 11, at 5; 2011 PBNDS, at 154.
51
ICCPR, at art. 9(4).
52
See FOIA Response Washoe County Jail NV 4 April 2012 (Part 1). Pdf, at 79; see also,
Christopher Cardona, The John Marshall Law School Human Rights Project Fact Finding,
Petitioner Memo, 6 (2013).
53
UDHR, at art. 5.
54
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T.
3316, 75 U.N.T.S. 135, at art. 3; HCJ 5100/94, Public Committee Against Torture in Israel v
Government of Israel, PD 54 (4), 817, 836; Inter-American Commission on Human Rights, Report
on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (2002), available at:
http://www1.umn.edu/humanrts/ iachr/terrorism-ch3C.html [hereinafter Report on Terrorism];
American Convention, Article XXV.
55
Buried Alive, supra note 19, at 27; See UDHR, art. 5; U.N. GAOR, 3d Sess. 1st plen. Mtg., U.N.
Doc. A/810 (Dec. 12, 1948); ICCPR, art. 7; Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., 93d
mtg., art. 1, U.N. Doc. A/39/51 (December 10, 1984), entered into force June 26, 1987 (hereinafter
“CAT”).
9
The Inter-American Commission’s Principles and Best Practices recognize and
establish that the right to humane treatment takes priority over other rights when
possibly in conflict.56
Central to our discussion of the use of solitary confinement is the concept of
torture or degrading and inhumane treatment.
[T]he term "torture" means any act by which severe pain or
suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing
him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing
him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful
sanctions.57
From a cursory reading of article 1 of the CAT, some may question whether the
use of solitary confinement can be considered a form of torture. However, when
considering the reality of how the use of solitary confinement is implemented it is
clearer that the practice may fall within the definition of torture under article 1. If
solitary confinement is used as a punitive measure by way of segregating and
targeting particular individuals, due to their gender identity, challenge of authority
or other reason, in violation of the domestic minimum standards, then such Statesponsored conduct in some instances may rise to the level of torture. Two Special
Rapporteurs on torture and other cruel, inhuman, or degrading treatment or
punishment, have issued reports stating that “the prolonged isolation of detainees,
may amount to torture.”58
The United Nations General Assembly’s Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment (“Body of
Principles”) contains an absolute ban on the use of torture or other cruel,
56
Inter-American Commission on Human Rights, Principles and Best Practices on the Protection
of Persons Deprived of Liberty in the Americas, approved by the Commission during its 131 st
regular period of sessions (2008), available at: http://cidh.oas.org/Basicos/English/
Basic21.a.Principles%20and%20Best%20Practices%20PDL.htm [hereinafter Principles and Best
Practices].
57
CAT, art. 1.
58
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 63rd Sess., U.N. Doc. A/63/175 (July 28, 2008), at 77; See also, Interim
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 66th Sess., U.N. Doc. A/66/268 (August 5, 2011), [hereinafter Mendez Report].
10
inhuman, or degrading treatment or punishment in a prison setting. 59 The Body of
Principles explains that “the holding of a detained or imprisoned person in
conditions which deprive him, temporarily or permanently, of the use of any of
his natural senses, such as sight or hearing, or of his awareness” may amount to
torture or other cruel, inhuman, or degrading treatment or punishment.60 In
addition, the Basic Principles for the Treatment of Prisoners (hereinafter “Basic
Principles”) emphasizes that solitary confinement as a punishment or restriction,
should be abolished.61
i. The Use of Solitary Confinement Causing Physical,
Mental and Moral Anguish
“Every person has the right to have his physical, mental, and moral integrity
respected.”62 This protection is particularly important for our discussion, since it
emphasizes that the right to humane treatment is not limited to physical abuse, but
more importantly it includes the protection from mental and moral mistreatment.63
This protection of course is central to the use of solitary confinement, since the
severe mental and moral consequences have been documented extensively.
Some of the symptoms that are commonly associated with solitary confinement
are: hyperresponsivity to external stimuli; perceptual distortions, illusions, and
hallucinations; panic attacks; difficulties in concentration and memory; intrusive
obsessional thoughts; overt paranoia; and violence and self-harm.64 The long-term
effects of solitary confinement “include symptoms of post-traumatic stress such as
flashbacks, chronic hypervigilance, and hopelessness, as well as continued
intolerance of social interaction after release.”65
The design and use of segregation units aim to break and incapacitate detainees.
“[S]olitary confinement cells…are constructed to minimize sensory input of any
kind to the inmate. They provide the type of atmosphere that produces sensory
deprivation stress or psychotic reactions.”66
59
Buried Alive, supra note 19, at 28; See Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, G.A. Res. 43/173, annex, art. 1 & 6, 43 U.N.
GAOR, Supp. No. 49, 76th plen. mtg., U.N. Doc A/43/49 (December 9, 1988) [hereinafter Body of
Principles]; See also, UN Human Rights Committee, General Comment 20, article 7, 44th Sess.,
U.N. Doc. HRI/GEN/1/Rev. 1 at 30 (1994), at art. 6.
60
Body of Principles, art. 6.
61
Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, annex, art. 7, 45 U.N. GAOR
Supp. No. 49A, 68th plen. mtg., U.N. Doc. A/45/49 (December 14, 1990)[hereinafter Basic
Principles].
62
Id.
63
American Convention, art. 5.
64
Buried Alive, supra note 19, at. 31 citing Stuart Grassian, Psychiatric Effects of Solitary
Confinement, 22 WASH. U. J.L. & POL’Y 325, 328 (2006).
65
Id.
66
John F. Cockrell, Solitary Confinement: The Law Today and the Way Forward, 37 LAW &
PSYCHOL. REV. 211, 214 (2013) quoting Edward Kaufman, The Violation of Psychiatric Standards
of Care in Prisons, 137 AM. J. PSYCHIATRY 566, 567 (1980).
11
There are two types of segregation: administrative and disciplinary.
Administrative segregation has been typically used by detention facilities to
“manage” the prison or jail population. Those who “cannot adjust,” who have an
“obvious alternative life style” or who are “gender challenged”67
A serious concern is that solitary confinement not appropriate as an
“administrative” tool since it is overused, it exposes individuals to mental health
problems, and it is often used in lieu of mental health care.68
“Administrative” segregation is often used as alleged “protective” custody.
Protective custody is used to segregate individuals who are dangerous to others or
themselves, or vulnerable and potentially at risk of harm from others in the
general population of detainees.69
The second type of segregation is “disciplinary” segregation, which is a “punitive
form of separation from the general population.”70 According to ICE, disciplinary
segregation is only permitted if the detainee has committed a serious misconduct
in violation of a facility rule.71 In practice, however, disciplinary segregation is
commonly used as a punitive measure for minor infractions or minor deviations
from facility regulation. In our findings at the Human Rights Project, we have
received information that facilities have put detainees in disciplinary segregation
for having additional inconsequential items such as soap or a towel. Therefore, in
practice, disciplinary segregation is not used under serious or exceptional
circumstances, but rather to maintain day-to-day order and to remind detainees of
the rules. Detention is conceptualized as punitive at its core, not as a consequence
of misconduct, but rather as a way to control detainees and maintain an
environment of fear and acquiescence.
Invisible in Isolation, supra note 11, at 19, citing Ventura County Sheriff’s Department PreTrial Detention Facility Policy & Procedures, Administrative Segregation Cells, 2; Washoe
County Segregated Inmates Standard Operating Procedure, 2.
68
Buried Alive, supra note 19, at 10; Human Rights Watch, Ill-Equipped: U.S. Prisons and
Offenders with Mental Illnesses, 147 (Oct. 22, 2003), available at http://www.hrw.org/sites/
default/files/reports/usa1003.pdf.
69
Buried Alive, at 10; ICE has defined special vulnerabilities as “those who are known to be
suffering from mental illness or serious medical illness; who have a disability or are elderly,
pregnant, or nursing; who would be susceptible to harm in general population due in part to their
sexual orientation or gender identity; or who have been victims - in or out of ICE custody- of
sexual assault, torture, trafficking, or abuse.” ICE Directive 11065.1.
70
ICE Policy 11065.1
71
Id.
67
12
ii. Vulnerable Persons in Solitary Confinement
Vulnerable persons have been recognized in domestic systems and international
law as persons needing special protections. States must “afford specific
guarantees for the care, aid and protection” of such persons.72
Though vulnerable persons are entitled to special protections under international
law, most detention centers housing criminally convicted persons and immigrant
detainees, house vulnerable persons such as LGBT individuals and persons with
physical and mental disabilities.73 These facilities regularly segregate (use solitary
confinement) persons with particular vulnerabilities or as a way to “manage” the
jail or prison population.74
This is especially troubling, considering that “[t]orture survivors, victims of
human trafficking, and other vulnerable groups can be detained for months or
even years, further aggravating their isolation, depression, and other mental health
problems associated with their past trauma.”75
iii. Immigrant Detainees are Virtually Indistinguishable than
Criminally Convicted Persons in Detention Facilities
Within the concept of humane treatment, it has been recognized that unconvicted
persons must not be detained with convicted persons.76 This special protection
under the right to humane treatment is essential for the protection of immigrant
detainees due to the inability of detention centers to implement domestic and
international protections when there is no physical separation of both populations.
Immigrant detainees are held in the same facilities (jails, prisons, and other
detention centers) that house criminally convicted persons. “[M]ost immigration
detention facilities are indistinguishable from jails: men and women are confined
behind high walls lined with razor wire and have little freedom of movement or
direct contact with family.”77
It has been widely accepted that if individuals detained under civil proceedings
are subject to the similar conditions as convicted persons, the detention amounts
to punishment.78 This is especially important when there are alternatives to the
72
Report on Terrorism, at para. 194.
Invisible in Isolation, supra note 11, at 3.
74
Invisible in Isolation, supra note 11, at 3,8
75
About the U.S. Detention and Deportation System, Detention Watch Network, available at:
http://detentionwatchnetwork.org/resources; see also Buried Alive, supra note 19, at 32.
76
Invisible in Isolation, supra note 11, at 8; see also, Why Detain Nonviolent Immigrants?, L.A.
TIMES, Mar. 24, 2013 (editorial), available at: http://www.latimes.com/news/opinion/editorials/ laed-detainees-20130324,0,6561747.story.
77
Id.
78
Jones v. Blanas 393 F3d 918, at 934, citing Bell v. Wolfish 441 U.S. 520, at 536, 99 S.Ct. 1861.
73
13
conditions or type of detention.79 When there are alternatives less harsh, they must
be considered 80
It is therefore clear that the current practices of housing immigrant detainees in
facilities that have been designed and are managed for penal purposes establish a
punitive system for immigrant detainees awaiting their civil proceedings. This
practice of placing immigrant detainees in the same facilities and subject to the
same treatment, is in contravention of international protections of unconvicted
persons.
8. Beyond Solitary Confinement – Shifting from Punishment and
Criminalization to Alternatives to Detention
It has been widely recognized by many groups, including the UN Refugee
Agency (UNHCR) that the detention of immigrants, especially asylum seekers, as
a way to penalize their illegal entry or stay is in contravention of the 1951
Refugee Convention.81 States “shall not apply to the movements of such refugees
restrictions other than those which are necessary.”82 The UN General Assembly
has recognize the need to emphasize “that detention shall be the last resort and
permissible only for the shortest period of time and that alternatives to detention
should be sought whenever possible.”83
The U.S. Department of Homeland Security (DHS) has sought to obtain $2 billion
in funding for immigration detention centers for 2014.84 This figure is sought to
cover operational costs for approximately 257 facilities, at an average of $5.05
million per day.85 Immigration detention not only inhumane, degrading and may
amount to torture, but it is extremely costly. Many within the government
question the effectiveness of the current system. Representative Spencer Bachus
79
Demery v. Arpaio, 378 F.3d 1020, 1028, quoting Bell, 441 U.S. at 538, 99 S.Ct. 1861.
Hallstrom v. City of Garden City, 991 F.2d 1473, 1484 (9th Cir.1993) (quoting Bell, 441 U.S. at
539 n. 20, 99 S.Ct. 1861).
81
Alternatives to immigration detention prove cheaper, more humane, IRIN, UN Office for the
Coordination of Humanitarian Affairs, available at:
http://www.irinnews.org/report/98666/alternatives-to-immigration-detention-prove-cheaper-morehumane; 1951 Convention relating to the Status of Refugees, Geneva, Jul. 28, 1951, at article 31
[hereinafter Refugee Convention].
82
Refugee Convention, at art. 31(2).
83
Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural
Rights, Including the Right to Development, G.A. Res. A/HRC/10/16, Feb. 20, 2009, at para 67,
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/110/43/PDF/G0911043.pdf?OpenElement
84
The Math of Immigration Detention: Runaway Costs for Immigration Detention Do Not Add up
to Sensible Policies, National Immigration Forum, at 2, available at:
http://www.immigrationforum.org/images/uploads/mathofimmigrationdetention.pdf [hereinafter
The Math of Immigration Detention]; Department of Homeland Security, U.S. Immigration and
Customs Enforcement, Salaries and Expenses, Fy2014 Congressional Budget Justification p. 4351, available at https://www.dhs.gov/sites/default/files/publications/MGMT/DHS%20Annual%20Performance%20Report%20and% 20Congressional-Budget-JustificationFY2014.pdf
85
The Math of Immigration Detention, at 2.
80
14
referred to the alternatives to detention during a House Judiciary Committee
aimed at questioning the efficiency of the current “bed mandate” system.86
The current alternatives to detention within ICE are the “Alternatives to Detention
(ATD) Programs. The ATD provides for intensive supervision and reporting. As
part of its monitoring the participants are in constant contact with “telephone
check-ins, ankle bracelet monitors, global positioning systems, and unannounced
home visits.”87 In addition to the ATD, there are the “Order of Supervision” and
“Bonds.” Order of Supervision provides that immigrant participants “report
periodically to an immigration officer” and must inform the officer of travel and
any changes of address.88 Bonds, as in other proceedings, provides for individuals
to pay a sum of money to guarantee that they will appear at the court hearing or
comply with any conditions of release.89
In Australia for example the immigration authorities notify the Australian Red
Cross before releasing any detainee, at which point a Red Cross caseworker
assesses the person and develops a “case plan.” The “case plan” is tailored to the
detainees post-detention housing options, income, health, education and access
community support. Once the person is no longer in the detention center a
government case worker is assigned to establish communication between the Red
Cross and the immigration agency to monitor the individual.90 Similarly, in
Canada, the Toronto Bail Program provides for immigrant detainees to check in
regularly and it provides for unannounced visits to their residences.91
9. Supporting incorporation of immigrant detainees into society and
communities
This article proposes the elimination of the use of solitary confinement in
immigration detention. The use of solitary confinement has been a “useful” tool
of punishment for the State to control, degrade and mistreat detainees. Solitary
86
Growing Bipartisan Support in Congress on Eliminating Immigration Detention Bed Mandate,
Human Rights First, Jun. 5, 2013, available at
http://www.humanrightsfirst.org/2013/06/05/growing-bipartisan-support-in-congress-oneliminating-immigration-detention-bed- mandate-2/.
87
ICE Detention Reforms Need More Alternatives, Fewer Jails, NIJC Human Rights & Due
Process Policy Brief, Dec. 2010, National Immigrant Justice Center, available at:
http://www.immigrantjustice.org/publications/policy-brief-ice’s-detention-reforms-need-morealternatives-fewer-jails [hereinafter ICE Detention Reforms Need More Alternatives], see
generally, Department of Homeland Security, p. S&E-62.
88
ICE Detention Reforms Need More Alternatives.
89
Id.
90
Id.; Creating ‘Truly Civil’ Immigration Detention in the United States: Lessons from Australia,
May
2010,
p.
6,
National
Immigrant
Justice
Center,
available
at:
www.immigrantjustice.org/policy-resources/policydocs/australia.html
91
ICE Detention Reforms Need More Alternatives; U.N. High Commissioner for Refugees,
Alternatives to Detention of Asylum Seekers and Refugees, April 2006, p. 26 at
www.unhcr.org/refworld/docid/4472e8b84.html.
15
confinement has taken center stage in immigration detention as a focus point in
the criminalization of the immigration system.
The systematic State-sponsored implementation of solitary confinement in
immigration detention is in clear contravention with the United States’ domestic
obligations under the current standards, and international standard recognized by
the United Nations and the Inter-American System on Human Rights. The United
States should abandon the current use of solitary confinement and the current
punitive use of immigration detention for other more humane and available
alternatives.
16