Solitary Confinement of Immigrant Detainees

By: Maureen Johnson*

Solitary confinement is one of the most severe punishments that can be levied against a prisoner or detainee. Yet “any given day,” according to a recent article in the New York Times, approximately 300 immigrants are held in solitary confinement at Immigration and Customs Enforcement (ICE) detention centers across the country. Of those held in solitary, the Times continues, “Nearly half are isolated for 15 days or more, the point at which psychiatric experts say they are at risk for severe mental harm, with about 35 detainees kept for more than 75 days.” (Emphasis added.) While the conditions of confinement vary, detainees facing solitary confinement have reported to being locked up alone for 22-23 hours a day, in windowless 6-foot-by-13-foot cells. The reasons given for detainees’ isolation range from a belief that they pose a threat to other detainees, to minor “disciplinary infractions,” to protection from potential violence by other inmates.

Based on oral accounts from prisoners, it seems that in many cases the practice of solitary confinement is unwarranted, excessive, and may amount to torture. Because of the lack of a independent, transparent monitoring system for the detention of immigrants, there are serious questions regarding accountability for detainee abuse. The reported effects of solitary confinement include: post-traumatic stress disorder, paranoia, depression, difficulty sleeping, and nightmares. In addition, according to the Times, detainees in solitary often suffer mental breakdowns that can include self-mutilation and even suicide as a result of prisoners’ deprivation of meaningful human contacts with others. Such conditions are likely to be especially traumatic for immigrants, especially victims of human trafficking and detainee asylum-seekers who have already suffered or fear future torture from authorities in their countries of origin. The immigrant population is in many ways the most vulnerable to abuse, especially because they often have family members who are illegal and afraid to complain or seek assistance. Moreover, unlike criminal detainees, immigrants do not have a right to free legal counsel, and many detainees cannot afford legal assistance.

According to a September 2012 report by the National Immigrant Justice Center (NIJC) and Physicians for Human Rights (PHR), part of the problem with respect to immigrant detainees stems from the fact that, “Most immigration detention centers are not dedicated facilities, meaning they hold both immigrants and criminally sentenced individuals,” leading detention center officials to rely on “local correctional policies” regardless of whether a detainee is considered dangerous or has been accused of any crime. Describing the use of solitary confinement as “often arbitrarily applied, significantly overused, harmful to detainees’ health, and inadequately monitored,” the NIJC and PHR report note that detainees frequently have little to no access to legal counsel or their families and often do not speak English, leaving them few if any means by which to appeal their treatment.

Because many immigrant detainees are being held under administrative and not criminal justifications, it is reasonable to question the need for many immigrant detainees to be held in detention centers at all. Because such immigrants are being held under civil and not criminal charges, they are not supposed to be punished, yet they languish in prisons for indefinite amounts of time, isolated from family members or legal counsel. The “supervised” release of hundreds of “low-risk” immigrant detainees due to budget cutbacks resulting from the federal sequester, for example, has raised the question in some quarters of whether those individuals’ detentions were necessary or justified to begin with. In this context, the widespread use of detention is itself frequently unnecessary, inhumane, and expensive, especially because of the availability of other reliable, affordable, and compassionate alternatives. Key recommendations of the NIJC-PHR report, for example, include a call on Congress to prohibit solitary confinement of immigrant detainees as well as “end” or strictly curtail “mandatory detention laws.”

As the Obama administration has increased enforcement, the immigration detention population has swelled; it has increased by nearly 85 percent since 2005. Once detained, there is no set date of release and detainees are transferred across state lines, often leaving family members without access to their loved ones.

Encouragingly, the renewed focus on solitary confinement has drawn the attention of Homeland Secretary Janet Napolitano, who affirmed earlier this week that “solitary confinement should be the exception, not the rule” and stated that she planned to undertake a review of the process. As of today, it remains unclear when such a review will take place or when any changes will be made in the existing scheme of solitary confinement and detention of immigrants. While Congress has legitimate goals of increasing enforcement of its immigration laws, such prioritizes should no longer curtail the rights of illegal immigrants facing detention.

*Maureen Johnson is Of Counsel to BOILA PC

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