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ICE Directive May Limit Solitary Confinement of Immigrant Detainees

Many human rights activists have noted that Immigration and Customs Enforcement (ICE), which is protected by draconian post-9/11 legislation and U.S. Department of Homeland Security (DHS) rule-making power, has been prone to abusive detention practices – especially in the area of solitary confinement. However, courts have been reluctant to criticize all but the most egregious violations committed by ICE.

Thus, a 13-page ICE directive issued on September 4, 2013, purporting to modify some of the agency’s policies related to the solitary confinement of immigrant detainees, was met with a degree of cautious suspicion.

ICE officials realize that immigrant detainees are virtually powerless, with little money and limited legal standing, and thus have virtually no political clout. This makes the immigrant detention system a perfect setting for less enlightened penologists to pursue carceral practices that they might hesitate to implement in the federal Bureau of Prisons (BOP).

The concept of “supermax” confinement for the most violent and dangerous offenders has been around for decades, but post-9/11, DHS and ICE have taken the practice of solitary confinement to a new level. In fact, the BOP has taken a page out of DHS policy by creating even more restrictive prison units, known as Communication Management Units, or CMUs, which restrict a prisoner’s telephonic, written, email and personal contact with the outside world. [See: PLN, Sept. 2012, p.26].

“Solitary confinement in both immigration detention and the criminal justice system is cruel, expensive, and ineffective. If [the new directive is] strictly enforced through the ICE detention system – including at county jails and contract facilities – ICE’s new policy could represent significant progress in curtailing this inhumane practice,” said Ruthie Epstein, an ACLU policy analyst.

The United Nations Special Rapporteur on Torture has described solitary confinement lasting 15 days or more as constituting a form of torture.

According to the ICE directive, “Placement of detainees in segregated housing is a serious step that requires careful consideration of alternatives. Placement in segregation should occur only when necessary and in compliance with applicable detention standards. In particular, 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.”

The directive also states, “Consistent with the agency’s detention standards and relevant special housing policies, ICE shall take additional steps to ensure appropriate review and oversight of decisions to retain detainees in segregated housing for over 14 days, or placements 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.”

Numerous studies have cataloged the adverse effects that extended periods of solitary confinement can have on prisoners’ mental health. The National Immigrant Justice Center and Physicians for Human Rights complained in a 2012 report that “solitary confinement frequently is used as a control mechanism. Researchers met individuals who were held in solitary confinement after they helped other detainees file complaints about detention conditions. People who are mentally ill and people who identify as lesbian, gay, bisexual, or transgender (LGBT) often are assigned to solitary confinement because jail staff is unwilling to deal with their unique circumstances and/or because staff thinks of solitary confinement as a ‘protective’ status for vulnerable populations.”

Human rights activists noted that ICE’s new directive does not ban solitary confinement for immigrant detainees nor place a limit on the duration of placement in solitary, but only requires increased scrutiny and additional paperwork. For example, whenever detainees are held in solitary confinement for more than 14 days within a 21-day period, or for over 30 consecutive days, field office directors must submit written reports to ICE superiors.

It remains to be seen what practical effect the directive will have and whether it will limit the worst abuses related to solitary confinement of immigrant detainees.


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