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The Continuing Use of Solitary Confinement Within the Context of International Human Rights, 47 J UIC Law Review Volume 47 Issue 4 Article 14 Summer 2014 ICE's New Policy on Segregation and the Continuing Use of Solitary Confinement within the Context of International Human Rights, 47 J. Marshall L. Rev. 1433 (2014) Sarah Dávila-Ruhaak [email protected] Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Civil Rights and Discrimination Commons, Human Rights Law Commons, Immigration Law Commons, and the International Humanitarian Law Commons Recommended Citation Sarah Dávila-Ruhaak, ICE's New Policy on Segregation and the Continuing Use of Solitary Confinement within the Context of International Human Rights, 47 J. Marshall L. Rev. 1433 (2014) https://repository.law.uic.edu/lawreview/vol47/iss4/14 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. ICE’S NEW POLICY ON SEGREGATION AND THE CONTINUING USE OF SOLITARY CONFINEMENT WITHIN THE CONTEXT OF INTERNATIONAL HUMAN RIGHTS SARAH DÁVILA-RUHAAK I. Real Solitary ....................................................................... 14341432 II. Introduction........................................................................ 14321434 III. Solitary Confinem ent ......................................................... 14341436 A. Physical and psychological effects of solitary confinem ent............................................................. 14351437 1. Generally ........................................................... 14351437 IV. General framework for Solitary Confinement ...................... 14371439 A. Immigration Policies on Detention ............................. 14371439 B. Immigration Policies Relating to the Use of Solitary Confinement .............................................. 14381440 1. New Dir ective on Segr egation ............................ 14391441 2. Review Process of Detainees with Vulnerabilities ................................................... 14421440 3. Review Process for Detainees in Extended Segr egation ........................................................ 14431441 4. No Right of Action for Wrongful Segregation Placem ents......................................................... 14431441 V. Inter national Protections Against the Use of..................... 1442 Solitary Confinement ............................................................... 14441442 A. Right to Due Proc ess ............................................... 14441442 1. Delays and Lack of Reporting of in Solitary Confinement ...................................................... 14451443 B. Right to Humane Treatment ................................... 14441446 1. The Use of Solitary Confinement Causing Physical, Mental and Moral Anguish.................. 14461448 2. Vulnerable P ersons in Solitary Confinem ent ...... 14491447 3. Immigrant Detainees are Virtually Indistinguishable from Criminally Convicted Persons in Detention Facilities ........................... 14481450 VI. Conc lusion........................................................................... 14511449 14331431 143414321168 47 JO HN MARS HALL L. REV. 143414321168 Vol. 47:4 different from its predecessors,I. REAL particularly SOLITARY since it had the benefit of two years of planning. LikeA feelingthe shift of in abandonmentconference scheduling, … dead -otherend changesdesperation… have takenhelplessness, place withintension. the ItLatCrit is a physicalentity, including reaction, concerted a demand efforts for torelease continue or aa needprocess to escapeof institutionalization. at all costs… [Isolated In recent prisoners] years, there feel hascaged been rather a growing than focus confined, on how abandonedto capitalize rather on its criticalthan niche,alone, continuesuffocated cultivating rather than the isolated. next generation They react of to critical solitary scholars, confinement and ensurewith surges that theof panicbaton orof outsiderrage. They jurisprudence lose control, is passedbreak along.down, Internally,regress...”1 the organization has shifted, including a gradual changing of the guard in leadership, so to speak, as well as a downsizing in administration.II. INTRODUCTION For example, from 2008 to the present, the Board of Directors was intentionally downsized, with a growingThe use number of solitary of Board confinement seats beingin immigration occupied bydetention junior lawhas professors.been at the6 center of media, immigration reform, and the work of manyAnother immigrants’ major rights development and human is rightsLatCrit’s advocates. acquisition Journalists of a andphysical domestic space andfor theinternationally organization.-oriented The property,advocates Campo have Sanobeen reporting(Spanish forthe “Camp use Healof solthy,”itary or confinementmore literally, and “Camp the Sanity”),inhumane is treatmenta ten-acre thatparcel immigrant of land located detainees in Central are subjected Florida. 7to Purchased in detention by facilitiesLatCrit inwhile 2011, awaiting the space resolution is home of toimmigration The Living cases. Justice2 Nicholas Center andKatzenback, the LatCrit a former Community United Campus. States Attorney8 The physical General, facility recognized serves thatas a means“the growth “to level rate the iplayingn the numberfield and ofgive prisoners LatCrit housedactivists ina segregationfighting chance far tooutpaced be heard.” the9 The growth space rateis intended of the overall prison population.” 3 to serve as the hub of their educational, research, advocacy and activism to remedy the imbalance and deficiencies of the current legal system. Having an 1 HANS TOCH, MOSAIC OF DESPAIR: HUMAN BREAKDOWNS IN PRISON 49 (1992). independent physical base has become critical as 2 Seeuniversities NAT’L IMMIGR and. JUST law. C TRschools. & PHYSICIAN increasingly FOR HUM are. RTS even., INVISIBLE less IN ISOLATION: THE USE OF SEGREGATION AND SOLITARY CONFINEMENT IN IMMIGRATION DETENTION 3 (Sept. 2012) [hereinafter INVISIBLE IN ISOLATION], available at https://www.immigrantjustice.org/sites/immNaming and Launching a New Discourse igrantjustice.org/files/Inv of Critical Legal Scholarship isible%20, 2 in%20IsolationHARV. LATINO -L. REV. 1 (1997). The%20Use%20of%20Segregation%20and%20Solitary%20Confinement%20inSee also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO %20Immigration%20Detention.September%202012_7.pdfCRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit (examining the use - ofbiennial solitary-conferences/ confinement (last in thevisited immigration July 5, 2013) detention (providing system, a list provided of the previous testimoniesconferences, of and detainees, providing and directrecommended links to the view eradication symposia of articles the use forof some solitaryyears (found confinement); by following Ian Urbina the respective& Catherine year’s Rents, link Immigrants to its corresponding Held in Solitarywebpage). Cells, Often for Weeks, N.Y. TIMES (Mar. 23, 2013), available at http://www.nytimes.com/2013/03/24/us/immigrantsAdditionally, LatCrit has developed a substantial-held body-in- solitaryof scholarship-cells-often from- severalfor-weeks.html other stand [hereinafter-alone symposia: Immigrants inter Held alia in the Solitary South -CellsNorth] (report Exchange,ing on the Studyfederal Spacedata indicating Series, thethat International approximately and 300 Comparative immigrant detainees Colloquia. were LatCrit Symposiaplaced in ,solitary LATCRIT confinement.: LATCRIT: TheLATINA article & furtherLATINO reported CRITICAL that L EGAL THEORY, IapproximatelyNC., http://latcrit.org/content/publications/latcrit half of immigrant detainees were isolated-symposium/ for 15 days(last or more,visited Julyand that5, 2014). approximately 35 of the 300 were detained for more than 75 days); The6 TimesThese Editorial include Board,Professors Cruel Marc and- InhuTizocman González, Conditions Andrea for ImmigrantsFreeman, ,and CésarL.A. T IMESCuahtémoc, Sept. 18,García 2013, Hernández. See About LatCrit, supra note 3 (listing thehttp://www.articles.latimes.com/2013/sep/18/opinion/la professors on the LatCrit Board of Directors and-ed- solitarytheir respective-dhs- law schools).immigrant -detainees-20130918 (reporting that the use of solitary confinement is widespread7 Campo Sanoin immigration, LATCRIT : detentionLATINA AND facilities LATINO. It alsoCRITICAL reported LEGAL on studies THEORY , IthatNC, http://www.latcrit.org/content/campoindicated that detainees subjected to- sano/prolonged (last isolationvisited July are 5,at 2014).risk of mental8 Id. illness and suicide). 39 KathrynId. D. DeMarco, Disabled by Solitude: The Convention on the Rights Vol. 47:4 ICE’s New Segregation Policy 14351433 U.S. Immigration and Customs Enforcement (“ICE”) and detention facilities around the country handle approximately 34,000 immigrant detainees daily. 4 Since 2005 the number of immigrants detained has increased by a worrisome 85 percent. 5 “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. 6 The case can be made that extended solitary as a common practice constitutes cruel, inhumane and degrading treatment or torture in violation of basic principles of human rights. “The near pervasive practice of extended solitary confinement as a commonplace and legally legitimate detention
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