ICE Implements New Directive to Limit Solitary Confinement

Civil rights and immigration advocacy groups are watching closely to see the results of a change in federal policy governing the placement of immigrant detainees in solitary confinement, which was implemented one year following the release of a damning report on that issue.

Immediately after the policy was adopted by Immigration and Customs Enforcement (ICE) on September 4, 2013, the American Civil Liberties Union pledged to “closely monitor the implementation of the new directive,” which the ACLU cautiously hailed as a step in the right direction toward ending segregation and solitary confinement for immigrant detainees.

“The new ICE directive sets a good example for the prison system writ large when it comes to monitoring the use of solitary confinement,” Ruthie Epstein, an ACLU legislative policy analyst, said in a written statement.

“If strictly enforced throughout the ICE detention system – including at county jails and contract facilities – ICE’s new policy could represent significant progress in curtailing this inhumane practice,” she added, noting the directive “sets important limits on the use of solitary confinement. Solitary confinement in both immigration detention and the criminal justice system is cruel, expensive, and ineffective.”

The policy change reflects a commitment by former Homeland Security Secretary Janet Napolitano to review ICE’s segregation practices in the wake of a joint study by two human rights organizations that reported immigrant detainees were increasingly placed into solitary confinement in jails and detention centers simply because they were mentally ill, due to their sexual orientation or because they could not speak English.

The Heartland Alliance’s National Immigrant Justice Center and Physicians for Human Rights stated in a September 2012 report that conditions for immigrant detainees placed in isolation not only endangered their health and safety, but also pressured them “to abandon their options for legal relief, their families, their communities, and often the only country they have ever known.”

According to the report, the immigrant detainee population grew 85% between 2005 and 2012, as ICE annually imprisoned 400,000 detainees. The report cited the dramatic increase for creating the “fastest-growing incarceration system” in the nation, with nearly 250 state and local facilities – not including detention centers operated by ICE or private contractors – holding immigrant detainees alongside criminal offenders.

Traditionally, the purpose of immigration detention has been not to punish detainees for allegedly violating immigration laws, but to ensure their appearance at court hearings. Yet the report found an alarmingly high number of immigrants were placed in solitary confinement or 23-hour lockdown, where they were deprived of exercise, proper nutrition and human contact.

In a review of local jails that contract with ICE, the report found solitary confinement policies to be “inappropriately punitive,” arbitrary and unjust. “This severe form of segregation, especially when it is used for long periods of time,” the report stated, “is rarely necessary to achieve order in a jail or detention facility.”

The study cited multiple examples of immigrant detainees who were placed in segregation or isolation solely because they belonged to “vulnerable populations,” such as being gay, bisexual, transgender or mentally ill.

In southern California’s Ventura County Jail, for example, guards segregated “obvious alternative lifestyle inmates.” The Washoe County Jail in Nevada had a policy that explicitly stated detainees with “overt homosexual tendencies” were to be placed in administrative segregation, while a jail in Cobb County, Georgia called for the segregation of “gender challenged” prisoners who demonstrate “past or current ... passive-aggressive behavior.”

In other facilities, guards justified using segregation and solitary confinement to “discriminate against non-English-speaking immigrants,” the report found. Failure to speak English “when able,” or watching Spanish channels on television, could lead to 23-hour lockdown at the Nobles County Jail in Minnesota, where English is the “primary” language “to ensure the safety and security of the facility.”

The report also found that many jails punished immigrant detainees for violating trivial rules, such as putting their feet on tables or singing loudly. Detainees at the Stewart Detention Center in Georgia stated they were placed in segregation because they complained about the quality of the drinking water. Two detainees in York County, Pennsylvania – who each had cellmates serving criminal sentences – said they were segregated because they didn’t notice that their identification wristbands had come off.

A victim of domestic violence who was detained for almost a year at the McHenry County Correctional Facility in Illinois while her visa application was pending was placed in disciplinary segregation on separate occasions for having an extra blanket, bra and pair of socks; for placing a shampoo bottle on her windowsill; and for having newspaper articles in her cell.

And in the Washoe County Jail, detainees must work to avoid isolation, according to the facility’s policy manual. Commissary, library access and visitation are privileges that have to be “earned” by working at the facility, the manual states. Refusing to work results in “lockdown and failure to earn any privileges.”

The National Immigrant Justice Center and Physicians for Human Rights report also found that solitary confinement was sometimes applied to immigrant detainees “in lieu of mental health treatment.” Qualified mental health staff is “rarely on-site” at immigration detention centers, despite “extremely high rates of anxiety, depression, and PTSD (Post Traumatic Stress Disorder) symptoms among detainees.”

The report further noted that while detainees already struggle to understand why they’ve been incarcerated for allegedly violating immigration laws, “the further deprivation of liberty inherent in segregation and solitary confinement might be reasonably expected to compound the psychological stress of detention.”

The report called on ICE to end the use of segregation and solitary confinement in immigration detention centers by not contracting with jails or jail-like facilities, and by “placing vulnerable individuals in alternatives to detention (ATD) programs” or releasing them on humanitarian parole. The report also called on Congress to reduce funding for immigration detention and instead enact “binding civil detention standards so that facilities that detain immigrants can be held legally accountable for improper use of segregation and solitary confinement.”

As a result of the firestorm of media coverage generated by the report, a year later ICE announced a new policy that jails and detention centers are required to follow when holding immigrant detainees in solitary confinement.

“Placement of detainees in segregated housing is a serious step that requires careful consideration of alternatives,” the policy states. “Placement in segregation should occur only when necessary and in compliance with applicable detention standards.” Additionally, “placement in administrative segregation due to a special vulnerability should be used only as a last resort and when no other viable housing options exist.”

In issuing the new directive, ICE pledged to “ensure the safety, health and welfare of detainees in segregated housing in its immigration detention facilities,” and to quickly review cases involving detainees in vulnerable groups who are held in solitary “for over 14 days” or placed in segregation “for any length of time in the case of detainees for whom heightened concerns exist based on known special vulnerabilities and other factors related to the detainee’s health or the risk of victimization.”

Those vulnerable groups include detainees with mental illnesses and severe medical conditions or disabilities, pregnant or nursing women, the elderly, and anyone who might be susceptible to harm due to their sexual orientation, gender identity or because they have been victims of sexual assault.

The National Immigrant Justice Center and Physicians for Human Rights faulted the new ICE policy, however, for not eliminating entirely the use of extended solitary confinement, nor allowing independent, third-party oversight of the policy’s implementation and enforcement.

The U.S. Senate also acted in the aftermath of the report, in the form of an amendment to an immigration reform bill that placed further restrictions on the use of segregation and solitary confinement for immigrant detainees. The bill, S.744, passed the Senate but the U.S. House of Representatives has failed to act on the legislation.

Sources: “Invisible in Isolation: The Use of Segregation and Solitary Confinement in Immigration Detention,” Heartland Alliance and Physicians for Human Rights (Sept. 2012); www.immigrantjustice.org; www.aclu.org; ICE policy directive 11065.1; www.solitarywatch.com

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