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]

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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)

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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 physicaland domestic space andfor theinternationally organization.-oriented The property,advocates Campo have Sanobeen (Spanishreporting forthe “Camp use Healof solthy,”itary or confinementmore literally, and “Camp the Sanity”),inhumane is atreatment 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 asthat a means“the growth “to level rate the iplayingn the numberfield and ofgive prisoners LatCrit housedactivists ina fightingsegregation chance far tooutpaced be heard.” the9 The growth space rate is 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 Naminghttps://www.immigrantjustice.org/sites/imm and Launching a New Discourse igrantjustice.org/files/Inv of Critical Legal Scholarship isible%20, 2 Hin%20IsolationARV. LATINO -L. REV. 1 (1997). The%20Use%20of%20Segregation%20and%20Solitary%20Confinement%20inSee also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO C%20Immigration%20Detention.September%202012_7.pdfRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit (examining the use - biennialof solitary-conferences/ confinement (last in thevisited immigration July 5, 2013) detention (providing system, a list provided of the previous conferences,testimonies of and detainees, providing and directrecommended links to the view eradication symposia of articles the use forof some yearssolitary (found confinement); by following Ian Urbina the respective& Catherine year’s Rents, link Immigrants to its corresponding Held in webpage).Solitary 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, the that 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 http://www.articles.latimes.com/2013/sep/18/opinion/lathe professors on the LatCrit Board of Directors and-ed- solitarytheir respective-dhs- law immigrantschools). -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 method demonstrates extreme disregard for incarcerated US citizens and is tangible basis upon which torture for foreign nationals seems somehow more feasible.” 7 The conditions to which immigrants are subjected to in immigration detention should no longer be viewed as a domestic issue that concerns immigration law exclusively. The treatment of immigrant detainees and especially the use of solitary confinement should be contextualized within the discourse of universal human rights protections that are afforded to all of Persons with Disabilities and Its Impact on the Use of Supermax Solitary Confinement, 66 U. MIAMI L. REV. 523, 527 (2011) available at http://lawreview.law.miami.edu/w p-content/uploads/2012/02/De Marco.pdf, citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 53 (2006), available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confi nement.pdf), 4 INVISIBLE IN ISOLATION, supra note 2, at 3. 5 Id. U.S. Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement: Salaries and Expenses — FY 2014 Congressional Budget Justification, in U.S. Department of Homeland Security Annual Performance Report: Fiscal Years 2012–2014, 43-51, available at http://www.dhs.gov/sites/default/files/publications/MGMT/DHS- %20Annual%20Performance%20Report%20and%20Congressional-Bu dget- Justification-FY2014.pdf. See also IMMIGRATION FORUM, THE MATH OF IMMIGRATION DETENTION: RUNAWAY COSTS FOR IMMIGRATION DETENTION DO NOT ADD UP TO SENSIBLE POLICIES 2 [hereinafter THE MATH OF IMMIGRATION DETENTION], available at http://www.immigrationforum.org/images/uploads/m athofimm igrationdetentio n.pdf. (noting that the U.S. Department of Homeland Security (DHS) has sought to obtain $2 billion in funding for immigration detention centers for 2014). The report notes that this figure is sought to cover operational costs for approximately 257 facilities, at an average of $5.05 million per day. 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 referred to the alternatives to detention during a House Judiciary Committee aimed at questioning the efficiency of the current “bed mandate” system. 6 Immigrants Held in Solitary Cells, supra note 2. 7 Charles A. Pettigrew, Comment, Technology and the Eight Amendment: The Problem of Supermax Prisons, 4 N.C.J.L. & TECH. 191, 191-92 (2002). 143614341168 47 JO HN MARS HALL L. REV. 143614341168 Vol. 47:4 personsdifferent irrespectivefrom its predecessors, of their immigration particularly status. since it had the benefit of twoThe years purpose of planning. of this essay is to discuss ICE Policy 11065.1 on segregation,Like the its shift deficiencies in conference and itsscheduling, unlikely fullother implementation, changes have takenand emphasize place within that the the LatCrit current entity use , ofincluding solitary concertedconfinement efforts in toimmigration continue adetention process ofis institutionalization. in contravention of In international recent years, human there hasrights been principles. a growing focus on how to capitalize on its critical niche, continueWhile cultivating the focus the of nextthis generationessay is solitaryof critical confinement scholars, and in ensureimmigration that thedetention, baton of outsiderthe general jurisprudence discussion is passedof solitary along. Internally,confinement theand organizationits physical hasand shifted,mental includinghealth effects a gradualis not changinglimited to ofimmigration the guard indetention. leadership, Solitary so to confinementspeak, as well has as the a downsizingsame effects inon administration.an immigrant detaineeFor example, as any from person 2008 with to legalthe present,status, especially the Board since of Dire a greatctors numberwas intentionally of immigrant downsized, detainees with are ahoused growing in numberthe same of detentioBoard nseats facilities being asoccupied criminally by junior convicted law professors.persons. 8 The6 core difference between the protections available to immigrantAnother detainees major developmentlay in the standards is LatCrit’s and regulationsacquisition issuedof a physicalby ICE regardingspace for the the special organization. protections The that property, immigrant Campo detainees Sano (Spanishare afforded for “Campwhile inHeal detentionthy,” or morepending literally, their “Campcivil immigration Sanity”), is aproceedings. ten-acre parcel Those of protectionsland located will in beCentral discussed Florida. below.7 Purchased by LatCritThis in essay2011, willthe spacefirst discussis home the to physicalThe Living and Justice psychological Center effectsand the that LatCrit result Community from the use Campus. of solitary8 The confinement. physical facility It will serves then discussas a means the United“to level States the playing standards field regulating and give LatCritthe use activistsof solitary a confinementfighting chance within to be theheard.” immigration9 The space detention is intended context, especially the newly issued directive regarding segregation. Subsequently, the discussionto serve aswill theuncover hub ofthe their reality educational, of the use research, of solitary confinementadvocacy in anddetention activism centers to remedyand outline the theimbalance deficiencies and with the newdeficiencies ICE directive. of the Incurrent addition, legal the system.essay willHaving examine an the internationalindependent legal physical standards base andhas protectionsbecome critical afforded as to immigrantuniversities detainees, and andlaw howschools the increasingly current solitary are even confinement less standards and practices are in contravention of human rights norms.

Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HARV. LATINO L. REV.III. 1 (1997).SOLITARY CONFINEMENT See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICALSolitary LEGAL confinement THEORY, INC is., http://latcrit.org/content/conferences/latcrita “form of segregation in which- individualsbiennial-conferences/ are held (last in visited total Julyor near5, 2013)-total (providing isolation.” a list9 ofDetainees the previous in conferences, and providing direct links to view symposia articles for some yearssolitary (found confinement by following are theheld respective in small year’sindividual link tocells its correspondingfor 23 to 24 webpage).hours a day. During the segregation, detainees are prevented from havingAdditionally, access LatCrit to the has samedeveloped treatment a substantial as bodyto ofthe scholarship rest of fromthe severalpopulation, other includingstand-alone the symposia: access inter to recreation,alia the South visitation,-North Exchange, and other the privileges.Study Space10 Series,“When thethere International is contact and with Comparative other people, Colloquia. it is usuallyLatCrit Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). 86 DoraThese Schriro, include U.S. Profe DEPssors’T OF MarcHOMELAND-Tizoc González,SECURITY , AndreaIMMIGR . Freeman,AND and CésarCUSTOMS Cuahtémoc ENFORCEMENT García, IHernández.MMIGRATION See DETENTION About LatCrit OVERVIEW, supra AND note 3 (listing theRECOMMENDATIONS professors on the17 (LatCrit2009), available Board of at Directors and their respective law http://www.ice.gov/doclib/about/offices/odpp/pdf/iceschools). -detention-rpt.pdf. 97 ICampoNVISIBLE Sano IN I, SOLATIONLATCRIT,: supraLATINA note AND 2, LatATINO 2; Solitary CRITICAL Confinement LEGAL THEORY Facts, IAmericanNC, http://www.latcrit.org/content/campo Friends Service Committee, -sano/http://www.afsc.org/resource/solitary (last visited July 5, 2014). - confinement8 Id. -facts (last visited May 3, 2013). 109 Id. INVISIBLE IN ISOLATION, supra note 2, at 2. Vol. 47:4 ICE’s New Segregation Policy 143714331435

brief,U.S. routine, Immigration and superficial, and Customs such asEnforcement being escorted (“ICE”) to andthe detentionshowers by facilitiesa guard.” around11 Some detaineesthe country have handledescribed approximately it as a “slow 34,000constant immigrant peeling of thedetainees skin, stripping daily. 4 ofSince the flesh.”2005 12the number of immigrantsThe use detained of solitary has increasedconfinement by a isworrisome not a contemporary85 percent. 5 creation“Nearly . halfSolitary are isolatedconfinement for 15has days been or centralmore,” towhich prison represents systems sincethe limit the atearly which 19th pointcentury. psychiatric13 Researchers and other have experts concluded recognize that the as usecausing of solitary severe mentalconfinement harm. 6through the use of segregation units may Theamount case canto psychologicalbe made that torture. extended14 “Thesolitary medical as a evidencecommon practiceshows indisputably constitutes thatcruel, even inhumane relatively and short degrading periods treatment in solitary or tortureconfinement in violation can cause of basic irreversible principles ofdamage, human especiallyrights. “The to nearthe pervasivevulnerable people.”practice15 Withinof extended the context solitary of immigration confinement detention, as a detaineescommonplace who haveand beenlegally subjected legitimate to solitary detention confinement method may sufferdemonstrates from extremesevere anxiety,disregard depressionfor incarcerated, and USpost citizens-traumatic and stress.is tangible16 basis upon which torture for foreign nationals seems somehow more feasible.” 7 The conditions to which immigrants are subjectedA. Physical to in andimmigration psychological detention effects should of solitary no longer confinement be viewed as a domestic issue that concerns immigration law exclusively. 1.TheGenerally treatment of immigrant detainees and especially the use of solitary confinement should be contextualized within the discourse of universalIt is clear human from medicalrights journalsprotections in thethat last are century afforded that to theall use of extended solitary confinement causes severe psychological effects. 17 Some of the symptoms that are commonly associated withof Persons solitary with Disabilities confinement and Its are:Impact hyperresponsivity on the Use of Supermax to Solitaryexternal stimuli;Confinement, perceptual 66 U. MIAMI distortions, L. REV. 523 illusions,, 527 (2011) and available hallucinations; at panic attacks;http://lawreview.law.miami.edu/w difficulties in concentration p-content/uploads/2012/02/De and memory; Marco.pdf intrusive, citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 53 (2006), available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confi11 Interim Report of the Special Rapporteur on Torture, Interim Report of nement.pdf),the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment4 INVISIBLE or Punishment IN ISOLATION, ¶, supra77, Gen. note Assembly, 2, at 3. transmitted by Note of the Secretary5 Id. U.S.-General Dep’t, U.N.of Homeland Doc. A/63/175 Security, (July U.S. 28, Immigration 2008). and Customs Enforcement:12 Jules Lobel, Salaries Prolonged and Expenses Solitary — Confinement FY 2014 Congressional and the Constitution, Budget 11 U. PJustificationA. J. CONST., inL. U.S.115, 116Department (2008). of Homeland Security Annual Performance Report:13 Peter Fiscal Scharff Years 2012Smith,–2014 The, 43 Effects-51, available of Solitary at Confinement on Prison Inmates:http://www.dhs.gov/sites/default/files/publications/MGMT/DHS A Brief History and Review of the Literature, 34 C-RIME AND JUST. 441%20Annual%20Performance%20Report%20and%20Congressional, 441-528 (2006). -Bu dget- Justification14 CENTER-FY2014.pdf FOR CONSTITUTIONAL. See also IMMIGR RIGHTSATION, FACT F ORUMSHEET, T, HETORTURE MATH: OFTHE USE OFIMMIGRATION SOLITARY C DONFINEMENTETENTION: R UNAWAYIN U.S. P RISONSCOSTS ,FOR CENTER IMMIGRATION FOR CONSTITUTIONAL DETENTION D O RNIGHTSOT ADD, available UP TO SENSIBLE at http://ccrjustice.org/files/CCR POLICIES 2 [hereinafter- TFactsheetHE MATH- SolitaryOF IMMIGRATION- DConfinement.pdfETENTION], available (last visited at Sept. 17, 2014). http://www.immigrationforum.org/images/uploads/m15 Press Release, Abolish Solitary Confinement athofimm in Immigration igrationdetentio and Nationaln.pdf. (noting Securitythat the U.S. Facilities,Department ofPHR Homeland Urges Security, (DHS)available has at http://physiciansforhumanrights.org/prsought to obtain $2 billion in funding foress/press immigration-releases/abolish detention- solitarycenters- for confinement.html2014). The report .notes that this figure is sought to cover operational costs for approximately16 PHYSICIANS 257 FOR facilities, HUMAN at R anIGHTS average, BURIED of $5.05 ALIVE million: SOLITARY per day. CImmigrationONFINEMENT detention IN THE U.S. not DonlyETENTION inhumane, SYSTEM degr 32,ading available and may at amount to https://s3.amazonaws.com/PHR_Reports/Solitarytorture, but it is extremely costly. Many within the-Confinement government-April question-2013 the- effectivenessfull.pdf [hereinafter of the current BURIED system. ALIVE] Representative Spencer Bachus referred to the 17alternatives Elizabeth toVasiliades, detention Solitaryduring a ConfinementHouse Judiciary and Committee International aimed Human at Rights:questioning Why thethe efficiencyU.S. Prison of theSystem current Fails “bed Global mandate” Standards, system 21. AM. U. INT’L L. REV6. Immigrants71, 73, 78 (2005) Held in(citing Solitary Craig Cells, Haney supra & Mona note 2.Lynch, Regulating Prisons of the7 Charles Future: A.A PsychologicalPettigrew, Comment, Analysis Technologyof Supermax and and the Solitary Eight Confinement, Amendment: 23The N.Y.U. Problem REV of. LSupermax & SOC. C HANGE Prisons, 477, 4 N.C.J.L. 483 (1977)). & TECH . 191, 191-92 (2002). 143814361168 47 JO HN MARS HALL L. REV. 143814361168 Vol. 47:4 obsessionaldifferent from thoughts; its predecessors, overt paranoia;particularly and since violence it had theand benefit self- harm.of two 18years The of longplanning.-term effects of solitary confinement “include symptomsLike theof shiftpost- traumaticin conference stress scheduling, such as otherflashbacks, changes chronic have takenhypervigilance, place within and thehopelessness, LatCrit entity as well, including as continued concerted intolerance efforts toof socialcontinue interaction a process after of institutionalization.release.” 19 In recent years, there has beenThe adesign growing and focus use onof howsegregation to capitalize units on aim its criticalto break niche, and continueincapacitate cultivating detainees. the next“[S]olitary generation confinementof critical scholars, cells…are and ensureconstructed that tothe minimize baton of sensory outsider input jurisprudence of any kind is topassed the inmate. along. Internally,They provide the theorganization type of atmospherehas shifted, that including produces a gradualsensory changingdeprivation of stressthe guardor psychotic in leadership, reactions.” so20 to speak, as well as a downsizingStudies inin administration.the United States For haveexample, found from that 2008detainees to thein present,extended theperiods Board of ofsegregation Directors wasmay intentionallysuffer “perpetual downsized, distortions, with ahallucinations, growing number hyperresponsitivity of Board seats tobeing external occupied stimuli, by junioraggressive law professors.fantasies, 6overt paranoia, inability to concentrate, and problems with Anotherimpulse majorcontrol.” development21 Similarly, is GermanLatCrit’s studies acquisition found offrom a physicalhundreds spaceof cases for ofthe psychoses organization. linked toThe detention property, conditions Campo couldSano (Spanishinclude vividfor “Camp hallucinations, Healthy,” ordissociative more literally, tendencies, “Camp Sanity”),agitatio n,is aaimless ten-acre violence, parcel ofand land delusions. located in22 CentralThese studiesFlorida. concluded7 Purchased that by solitaryLatCrit confinementin 2011, the precipitatedspace is home the topsychosis. The Living23 Justice Center and the“Prisoners LatCrit subjectedCommunity to Campus. extensive8 The segregation physical facility in [Special serves Housingas a means Units] “to lhaveevel theadditional playing difficulties field and givesevere LatCrit enough activists to cause a nearfighting permanent chance to mental be heard.” and9 emotionalThe space damage.” is intended24 Some detainees in long -term segregation at Segregation Housing Units (“SHUs”) have to“smeared serve asthemselves the hub with of theirfeces,” educational, urinated on research, the floor of their advocacycells, been and found activism “babbling to remedy and shrieking,the imbalance banging and their handsdeficiencies on the wall, of anthed onecurrent prisoner legal scrubbed system. his Havingbody to anremove imaginaryindependent bugs.”25 physical base has become critical as Anuniversities important andquestion law schoolsto ask increasinglyourselves is, areif iteven is clear less that the use of solitary is harmful for the health of detainees, why is it still used as an administrative measure for detention centers? “The Commission on Safety and Abuse in America’s Prisons stated Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HthatARV . afterLATINO ten L. daysREV. 1in (1997). solitary confinement there are ‘practically no benefits’See also to suchLatCrit confinement, Biennial Conferences while the, ‘harmLATCRIT is: clear.’”LATINA26 & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years18 B(foundURIED AbyLIVE following, supra notethe respective16, at 31 (citing year’s Stuart link Grassian,to its corresponding Psychiatric Effectswebpage). of Solitary Confinement, 22 WASH. U. J.L. & POL’Y 325, 328 (2006)). 19Additionally, Id. LatCrit has developed a substantial body of scholarship from several20 John other F. standCockrell,-alone Solitary symposia: Confinement: inter alia the The South Law- NorthToday Exchange, and the Way the ForwardStudy Space, 37 Series,LAW &the P SYCHOLInternational. REV . and211, Comparative214 (2013) Colloquia.(quoting EdwardLatCrit Kaufman,Symposia, TheLAT CViolationRIT: LAT CofRIT Psychiatric: LATINA Standards& LATINO ofC CareRITICAL in Prisons,LEGAL T137HEORY AM., J.INC P.SYCHIATRY, http://latcrit.org/content/publications/latcrit 566, 567 (1980)). -symposium/ (last visited July21 5, Madrid 2014). v. Gomez, 889 F. Supp. 1146, 1230-32 (N.D. Cal. 1995). 226 TheseGrassian, include supra Profe notessors 18, at Marc367-72.-Tizoc González, Andrea Freeman, and César23 IdCuahtémoc. García Hernández. See About LatCrit, supra note 3 (listing the 24professors Vasiliades, on supra the noteLatCrit 17, atBoard 78. of Directors and their respective law schools).25 Ruiz v. Johnson, 37 F. Supp. 2d 855, 909, 912 (S.D. Tex. 1999). 267 CampoDeMarco, Sano supra, LAT noteCRIT 3,: LatATINA 523 , ANDquoting LATINO Atul C Gawande,RITICAL L EGALHellhole: THEORY The, UnitedINC, http://www.latcrit.org/content/campo States Holds Tens of Thousands-sano/ of Inmates (last visited in Long July-Term 5, 2014). Solitary Confinement.8 Id. Is this Torture?, THE NEW YORKER (Mar. 30, 2009), available at http://www.newyorker.com/magazine/2009/03/30/hellhole.9 Id. Vol. 47:4 ICE’s New Segregation Policy 143914331437

U.S. Immigration and Customs Enforcement (“ICE”) and detentionIV. GfacilitiesENERAL FRAMEWORKaround the FOR country SOLITARY handle CONFINEMENT approximately 34,000 immigrant detainees daily. 4 Since 2005 the number of immigrants detainedA. Immigration has increased Policies byon Detentiona worrisome 85 percent. 5 “Nearly half are isolated for 15 days or more,” which represents the limitIn general, at which ICE point detainees psychiatric are placed and other in detention experts recognizecenters foras thecausing purpose severe of mental assuring harm. that6 they appear in the removal and deportationThe case proceedings. can be made27 The that process extended is allegedly solitary not as designeda common to practicepunish detainees,constitutes but cruel, to assureinhumane the andeffective degrading functioning treatment of the or torturedeportation in violationand removal of basic proceedings. principles ofICE human has therights. authority “The nearand pervasivediscretion topractice adopt andof implementextended policiessolitary relatingconfinement to immigrant as a commonplaceremoval and relief.and28 legally legitimate detention method demonstratesThe reality extreme of immigration disregard fordetention incarcerated is, however, US citizens critically and isintertwined tangible basiswith theupon criminal which torturepenal system. for foreign Immigrant nationals detainees seems somehoware held inmore the feasible.” same facilities7 The conditions as criminally to which convicted immigrants persons are29 andsubjected subjected to in to immigration similar, if not detention the same should, treatment. no longer In 2011,be viewed DHS as“held a domestica record- breakingissue that 429,000 concerns immigrants immigration in over law 250 exclusively. facilities Theacross treatment the country.” of immigrant30 detainees and especially the use of solitaryWith confinement only a few should exceptions, be contextualized the facilities within that theICE discourse uses to detainof universal aliens humanwere built,rights and protections operate, thatas jails are andafforded prisons to allto confine pre-trial and sentenced felons. One study notes that “ICE relies primarily on correctional incarceration standards ... and on ofcorrectional Persons with principlesDisabilities andof Itscare, Impact custody, on the Useand of Supermaxcontrol.” Solitary31 “These Confinement,standards impose 66 U. M moreIAMI L. restrictions REV. 523, 527 and (2011) carry available more at costs than are necessaryhttp://lawreview.law.miami.edu/w to effectively manage p-content/uploads/2012/02/De the majority of Marco.pdfthe detained, citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., [immigrant] population.”32 CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSEState IN A MERICAand ’S PlocalRISONS law53 (2006) enforcement, available at agencies enter into agreementshttp://www.vera.org/sites/default/files/resources/downloads/Confronting_Confi with ICE, under which they are deputized and carry outnement.pdf), government functions on behalf of the federal government in 4 regards INVISIBLE to INcivil ISOLATION detention., supra33 note The 2, at 3.central function that is 5 Id. U.S. Dep’t of Homeland Security, U.S. Immigration and Customs particularlyEnforcement: Salariesimportant and Expensesis that —immigrant FY 2014 Congressional detainees inBudget deportation orJustification removal , proceedingsin U.S. Department are held of Homeland in the same Security facilities Annual as Performance criminally convictedReport: Fiscal persons Years 2012and– 2014are, 43subjected-51, available to atthe same policies while awaitinghttp://www.dhs.gov/sites/default/files/publications/MGMT/DHS the resolution of their immigration case. - Through our research%20Annual%20Performance%20Report%20and%20Congressional we have found that many detention centers-Bu (whether dget- Justification-FY2014.pdf. See also IMMIGRATION FORUM, THE MATH OF county jails, prisons, or other detention facilities) do not IMMIGRATION DETENTION: RUNAWAY COSTS FOR IMMIGRATION DETENTION DO NdistinguishOT ADD UP TOimmigrant SENSIBLE POLICIES detainees 2 [hereinafter from TtheHE MgeneralATH OF I MMIGRATIONpopulation DeitherETENTION because], available they at cannot distinguish them or because they http://www.immigrationforum.org/images/uploads/m athofimm igrationdetentio n.pdf . (noting that the U.S. Department of Homeland Security (DHS) has sought to obtain $2 billion in funding for immigration detention centers for 201427). Schriro The report, supra notes note that 8, atthis #2. figure is sought to cover operational costs for approximately28 Daniel Kanstroom, 257 facilities, The atBetter an average Part of of Valor: $5.05 Themillion Real per ID day.Act, Discretion, andImmigration the “Rule” detention of Immigration not only Law, inhumane, 51 N.Y.L. degr SCHading. L. andREV .may 161, amount 166 (2007). to torture,29 Schriro but it, suprais extremely note 8 ,costly. at 2, 4. Many within the government question the effectiveness30 AMERICAN of the CIVIL current LIBERTIES system. U NIONRepresentative, IMMIGRATION Spencer DETENTION Bachus, referred to https://www.aclu.org/immigrantsthe alternatives to detention during-righ a ts/immigr House Judiciary ation-detention Committee (last aimed visited at quSept.estioning 17, 2014). the efficiency of the current “bed mandate” system. 631 Immigrants INVISIBLE IN Held ISOLATION in Solitary, supra Cells, note supra 2 at 29.note 2. 327 CharlesSchriro , A.supra Pettigrew, note 8, atComment, 4. Technology and the Eight Amendment: The33 Problem Immigration of Supermax and Nationality Prisons, 4Act N.C.J.L., 8 U.S.C. & T§ECH 1357(g). 191, (2000). 191-92 (2002). 144014381168 47 JO HN MARS HALL L. REV. 144014381168 Vol. 47:4

implementdifferent from the its detention predecessors, center’s particularly internal sincepolicies it hadirrespective the benefit of theof two detainee’s years of legalplanning. status. 34 The practice of treating immigrant detaineesLike asthe indistinguishable shift in conference of criminally scheduling, convicted other changespersons haveis in takencontravention place within of thethe LatCritcontractual entity o,bligations including underconcerted the efforts ICE tocontracts. continue35 aSpecifically, process of institutionalization.detention centers are In requiredrecent years, to comply there haswith been ICE a standardsgrowing focus as iton applies how to tocapitalize immigrant on its detainees critical niche,while continuehoused in cultivating those facilities, the next including generation the ofregulations critical scholars, on solitary and ensureconfinement. that 36the baton of outsider jurisprudence is passed along. Internally, the organization has shifted, including a gradual B. changingImmigration of the Policies guard Relating in leadership, to the Use so ofto Solitaryspeak, Confinementas well as a downsizing in administration. For example, from 2008 to the present,Immigration the Board detention of Directors is regulated was intentionally by three sets downsized, of standards: with athe growing 2000 National number Detention of Board Standardsseats being (hereinafter occupied by“NDS”), junior37 andlaw professors.the Performance6 -Based National Detention Standards (hereinafter “PBNDS”)Another of major200838 developmentand 2011. 39 isA majorityLatCrit’s ofacquisition facilities ofhave a adoptedphysical andspace operate for the loosely organization. under the The guidelines property, of theCampo 2000 Sano and 2008(Spanish standards. for “Camp40 HealThethy,” NDS or moreand literally, PBNDS “Camp only Sanity”), provided is adescriptions ten-acre parcel of the of landdifferent located types in Centralof segregation, Florida.417 Purchasedbut did not by provideLatCrit infor 2011, effective the spacemechanisms is home limitingto The Livingthe use Justice of solitaryCenter confinement.and the LatCrit The Community protections Campus.that the 8PBNDS The physical 2011 providedfacility servesfor is theas a mandatedmeans “to dailylevel theface playing-to-face fieldmental and healthgive LatCrit assessments activists for a fightingdetainees chance in segregation to be heard.”42 and9 The the space notification is intended to ICE when a detainee is in segregation for over 30 days. 43 to serve as the hub of their educational, research, advocacy and activism to remedy the imbalance and 34 Documentsdeficiencies produced of the fromcurrent Freedom legal of Informationsystem. Having Act requests an to I.C.E.-contractedindependent detention physical centers, base in the has possession become of Thecritical John Marshallas Law Schooluniversities Human and Rights law Project.schools Seeincreasingly infra notes are 66,even 79, less80 and accompanying text. 35 INTERGOVERNMENTAL SERVICE AGREEMENT BETWEEN THE UNITED STATES DEPT. OF HOMELAND SECURITY U.S. IMMIGRATION AND CUSTOMS ENamingNFORCEMENT and Launching, OFFICE OF a E NFORCEMENTNew Discourse AND of R CriticalEMOVAL OLegalPERATIONS Scholarship AND , 2 KHARNESARV. L ATINOCOUNTY L. R(Dec.EV. 17, (1997). 2010), available at http://www.ice.gov/doclib/foia/isa/karnescountycivildetentionfacSee also LatCrit Biennial Conferences, LATCRIT: LATINAility -igsa11& LATINO- 0004.pdf.CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial36 Id.- conferences/ (last visited July 5, 2013) (providing a list of the previous conferences,37U.S. IMMIGRand providing. AND directCUSTOMS links toENFORCEMENT view sympos, ia2000 articles D ETENTIONfor some OyearsPERATIONS (found byM ANUALfollowing [hereinafterthe respective NDSyear’s link2000], to its availablecorresponding at http://www.ice.gov/detentionwebpage). -standards/2000/. 38Additionally, U.S. IMMIGR LatCrit. AND hasCUSTOMS developed ENFORCEMENT a substantial, 2008 body P ERFORMANCEof scholarship-B ASEDfrom NseveralATIONAL other DETENTION stand-alone STANDARDS symposia: [hereinafterinter alia the PBNDS South- North2008], Exchange, available theat http://www.ice.gov/detentionStudy Space Series, the International-standards/2008/. and Comparative Colloquia. LatCrit Symposia39 U.S., LIMMIGRATCRIT. : ANDLAT CUSTOMSRIT: LATINA ENFORCEMENT & LATINO, 2011CRITICAL PERFORMANCE LEGAL T-BHEORYASED, NINCATIONAL., http://latcrit.org/content/publications/latcrit DETENTION STANDARDS [hereinafter -PBNDSsymposium/ 2011], (lastavailable visited at http://www.ice.gov/dJuly 5, 2014). etention-standards/2011/; Buried Alive, supra note 16, at 12. 6 These include Professors Marc-Tizoc González, Andrea Freeman, and César40 PBNDSCuahtémoc 2008, García supra Hernández.note 38; PBNDS See About2011, supraLatCrit note, supra 39. note 3 (listing the 41professors Although onthis the essay LatCrit primarily Board refers of toDirectors solitary andconfinement, their respective since I.C.E. law schools).uses the term “segregation,” the essay will use segregation as well. 427 Campo INVISIBLE Sano IN ,I SOLATIONLATCRIT:, supraLATINA note AND 2, LatATINO 5; PBNDS CRITICAL 2011, L supraEGAL TnoteHEORY 39, atINC §, 2.12.http://www.latcrit.org/content/campo -sano/ (last visited July 5, 2014). 438 Id. INVISIBLE AT ISOLATION, supra note 2, at 5; PBNDS 2011, supra note 39, at 154.9 Id. Vol. 47:4 ICE’s New Segregation Policy 144114331439

DespiteU.S. Immigration the existence and of Customsthe PBNDS Enforcement 2011, a (“ICE”)majority and of detention facilitiesfacilities have around not adoptedthe country them, andhandle those approximatelyfacilities that have34,000 adopted immigrant them detaineescircumvent da theily. 4regulations Since 2005 relating the numberto solitary of immigrantsconfinement detainedby releasing has increaseddetainees byafter a 29worrisome days of 85segregatio percent.n,5 waiting“Nearly halfone areday, isolated and thenfor 15placing days orthem more in,” whichsegregation represents the followingthe limit atday. which44 This point failure psychiatric to adopt and otherthe expertsPBNDS recognize 2011 and as proactivecausing severe circumvention mental harm. of the6 time limits defeats any protections providedThe forcase in canthe standards.be made that extended solitary as a common practiceAs theconstitutes government cruel, hasinhumane been under and degradingserious criticism treatment45 foror torturefailing into violationprotect of criminallybasic principles and of nonhuman-criminally rights. “Theconvicted near pervasivedetainees, suchpractice as immigrant of extended detainees, solitary ICE hasconfinement made an attemptas a commonplaceto address its useand of solitarylegally confinement. legitimate detention method demonstratesOn September extreme 4,disregard 2013 forICE incarceratedissued Directive US citizens 11065.1 and is(hereinafter tangible basis“new upon dire ctive”).which tortureThe newfor foreigndirective nationals provides seems for somehowincrease inmore oversight feasible.” and7 The reporting conditions mechanisms to which immigrants when solitary are subjectedconfinement to isin used.immigration46 The new detention directive should asserts no that longer its purposebe viewed is toas “ensurea domestic the safety,issue healththat concerns and welfare immigration of detainees.” law47 exclusively. The Priortreatment to the of immigrantissuance of detainees the new anddirective, especially administrative the use of segregationsolitary confinement allowed shouldfor thebe contextualizedseparation ofwithin a detaineethe discourse “for administrativeof universal human reasons rights,” which protections included that theare affordedprotection to allof detainees or the general population or for “good order.” 48 Disciplinary segregation is the separation of a person for the ofpurpose Persons ofwith penalizing Disabilities andindividuals Its Impact for on thebreaking Use of Supermax detention Solitary facility Confinement,rules. 49 66 U. MIAMI L. REV. 523, 527 (2011) available at http://lawreview.law.miami.edu/w p-content/uploads/2012/02/De Marco.pdf, citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., 1. New Directive on Segregation CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 53 (2006), available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_ConfiThe new directive provides that a detainee can only be placed nement.pdf), 4 INVISIBLE IN ISOLATION, supra note 2, at 3. 445 Id. In U.S. 2012 Dep the’t of National Homeland Immigrant Security, U.S.Justice Immigration Center and and Physicians Customs for HumanEnforcement: Rights Salaries gathered and data Expenses reflecting — FY this 2014 practice, Congressional which is Budgetdocumented in theJustification Invisible , inin U.S.Isolation Department report. ofINVISIBLE Homeland IN Security ISOLATION Annual, supra Performance note 2. In 2013,Report: law Fiscal student Years investigators 2012–2014, from43-51, The available John Marshallat Law School Human Rightshttp://www.dhs.gov/sites/default/files/publications/MGMT/DHS Project in Chicago have discovered additional instances- of persons being%20Annual%20Performance%20Report%20and%20Congressional held for periods exceeding 30 days and even 60 days.-Bu dgetSee - INT’L CJustificationOVENANT ON-FY2014.pdf CIV. & P. OLSee. R alsoTS., IICCPRMMIGR ATIONSHADOW FORUM REPORT, THE CMONCERNINGATH OF THE UIMMIGRATIONSE OF SOLITAR DETENTIONY CONFINEMENT: RUNAWAY IN CIMMIGRATIONOSTS FOR IMMIGRATION DETENTION D ETENTIONFACILITIES D OIN THENOT AUDDNITED UP TOSTATES SENSIBLE OF APMERICAOLICIES, 2IN [hereinafter RELATION TOTHE THE MATH UNITED OF IMMIGRATION STATES’ 4TH PDERIODICETENTION R], EPORTavailable (Sept. at 10, 2013) [hereinafter ICCPR Shadow Report] http://www.immigrationforum.org/images/uploads/m(discussing the use of solitary confinement in immigrant athofimm detention igrationdetentio facilities n.pdfacross. (notingthe United that States,the U.S. and Department argues that of Homelandsuch practices Security are a (DHS) violation has of the Internationalsought to obtain Covenant $2 billion on in Civil funding and forPolitical immigration Rights). detention Further documentationcenters for received2014). The from report FOIA notes requests that this are figure on file is soughtwith The to coverJohn operationalMarshall Law costs School for Humanapproximately Rights 257Project. facilities, See infra at an notes average 66, 79,of $5.0580 and million accompanying per day. text. Immigration45 Immigrants detention Held notin Solitary only inhumane, Cells, supra degr noteading 2. and may amount to torture,46 ICE but Directive it is extremely No. 11065.1 costly. ,Many Review within of the the Use government of Segregation question for the ICE Detainees,effectiveness (ofICE the current2013) system.[hereinafter Representative I.C.E. SpencerDirective], Bachus available referred toat http://wwwthe alternatives.ice.gov/doclib/detention to detention during-reform/pdf/segregation_directive.pdf. a House Judiciary Committee aimed at questioning47 I.C.E. theDirective, efficiency supra of thenote current 46, at §“bed 2. mandate” system. 486 Immigrants PBNDS 2011, Held supra in Solitary note 39 ,Cells, at § 2.12. supra note 2. 497 Charles INVISIBLE A. INPettigrew, ISOLATION Comment,, supra note Technology 2 (citing andNDS the 2000, Eight supra Amendment: note 36, atThe 1). Problem of Supermax Prisons, 4 N.C.J.L. & TECH. 191, 191-92 (2002). 144214401168 47 JO HN MARS HALL L. REV. 144214401168 Vol. 47:4

indifferent administrative from its predecessors, segregation particularlyif identified since as havingit had thea benefitspecial vulnerability.of two years of planning.Detainees are considered to have a special vulnerabilityLike the ifshift they inare: conference known to scheduling,be suffering otherfrom mentalchanges illness have takenor serious place medical within illness;the LatCrit have entitya disability,, including are elderly,concerted pregnant efforts toor continuenursing; woulda process be susceptibleof institutionalization. to harm in Inthe recent general years, population there hasdue beento theira growing sexual focus orientation on how toor capitalizegender identity;on its critical have niche,been continuevictims of cultivatingsexual assault, the nexttorture, generation trafficking of orcritical abuse. scholars,50 and ensureOnce that a theperson bato isn identifiedof outsider as jurisprudence “vulnerable,” issegregation passed along. can Internally,only be used the as theorganization last resort andhas forshifted, the shortest including period a of gradualtime. 51 changingIf an alternative of the toguard the insegregation leadership, exists, so to it speak,must beas soughtwell as and a downsizingsegregation inshould administration. be avoided. For52 example,In regards from to 2008disciplinary to the present,segregation, the Boardthe new of Diredirectivectors was requires intentionally that thedownsized, punishment with ashould growing be numberbased onof Boarda serio seatsus beingmisconduct occupied and by thatjunior prior law professors.authorization6 of segregation by a facility disciplinary panel must be provided.Another53 major development is LatCrit’s acquisition of a physicalIt is spaceimportant for theto noteorganization. that the newThe directive property, does Campo not include Sano age,(Spanish religion, for “Camp race, Healor ethnicthy,” oridentification more literally, as “Campfactors Sanity”),that may is rendera ten-acre a detainee parcel ofvulnerable. land located These in Centralfactors Florida.are fundamental7 Purchased when by consideringLatCrit in 2011,the potentialthe space vulnerability is home to ofThe a personLiving, Justicesince religion, Center race,and the ethnic LatCrit and Communitylinguistic identification Campus. 8 sThe have physical been atfacility the heart serves of asdiscriminatory a means “to lpoliciesevel the playingand actions field and against give LatCrit minorities activists and a fightingimmigrant chances. To to n beot heard.”include9 theseThe space factors is intendedto assess vulnerability within the circumstances of the person’s detention is to ignore the realityto ofserve today’s as theconflicted hub ofsociety their andeducational, facility research,detainee and personneladvocacy composition. and activism to remedy the imbalance and deficiencies of the current legal system. Having an 2. Reviewindependent Process of physicalDetainees base with Vulnerabilihas becometies critical as universities and law schools increasingly are even less The new directive provides that there must be a review process for all detainees placed in segregation for over 14 days, who have been identified as vulnerable, or if there are other Naming and Launching a New Discourse of Critical Legal Scholarship, 2 54 HfactorsARV. L ATINOrelating L. R EVto . the1 (1997). risk of victimization of a detainee. As part of thisSee review,also LatCrit if a detainee’sBiennial Conferencesmedical or, mentalLATCRIT : illnessLATINA worsens, & LATINO or CthereRITICAL is aL EGALsuicide T HEORYrisk,, appropriateINC., http://latcrit.org/content/conferences/latcrit health care must be provided. 55- Ifbiennial there-conferences/ is a determination (last visited July that 5, 2013) the (providing segregation a list ofcaused the previous the conferences, and providing direct links to view symposia articles for some deteriorationyears (found by offollowing a detainee’s the respective medical year’s or linkmental to its correspondinghealth, an 56 alternativewebpage). to segregation must be sought. Additionally,Requiring LatCritthe identificationhas developed a ofsubstantial “vulnerability” body of scholarshipthat provides from forseveral greater other protectionstand-alone issymposia: a good interstep aliain thethe Southright -Northdirection, Exchange, however the fallsStudy short.Space AsSeries, mentioned the International earlier, the and facility Comparative personnel Colloquia. must LatCrit know Symposia, LATCRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, of the vulnerability, which creates a great disincentive for the INC., http://latcrit.org/content/publications/latcrit-symposium/ (last visited July 5, 2014). 6 These include Professors Marc-Tizoc González, Andrea Freeman, and César50 I.C.E.Cuahtémoc Directive, García supra Hernández. note 46, at See § 5.1. About LatCrit, supra note 3 (listing the 51professors Id. at § 5.2. on the LatCrit Board of Directors and their respective law schools).52 Id. 537 Id.Campo at § 3.2.Sano , LATCRIT: LATINA AND LATINO CRITICAL LEGAL THEORY, INC,54 http://www.latcrit.org/content/campo Id. at § 4.3. -sano/ (last visited July 5, 2014). 558 Id. Id. 569 Id. Id. at § 5.2. Vol. 47:4 ICE’s New Segregation Policy 144314331441

facilityU.S. personnel Immigration to inquire and aboutCustoms any vulnerabilitiesEnforcement (“ICE”)prior to andthe detentionsegregation. facilities The knowledge around requirementthe country doeshandle not approximatelyprovide for a 34,000due diligence immigrant requirement detainees by datheily. personnel,4 Since 2005thus allowingthe number for theof immigrantspersonnel todetained hide hasbehind increased their byalleged a worrisome ignorance 85 percent.of such5 vulnerability.“Nearly half areIn isolatedaddition, forit 15is notdays clear or more the ,”level which of representsmental or medicalthe limit assessment at which pointthat willpsychiatric be conducted and other during experts segregation. recognize as causingOnce severe in mentalsegregation, harm. 6detainees should be medically and mentallyThe caseassessed can beperiodically made that and extended the directive solitary shouldas a common clarify practicewhat the constitutes response cruel,time inhumanewill be forand assistancedegrading treatmentand specific or torturealternatives in violation to segregation, of basic principlesregardless ofof humanwhether rights. the segregation “The near pervasivehas caused thepractice worsening of extendedof medical solitaryor mental confinementillness. as a commonplace and legally legitimate detention method 3.demonstratesReview Process extreme for Detainees disregard in forExtended incarcerated Segregation US citizens and is tangible basis upon which torture for foreign nationals seems somehowPrior moreto the feasible.” new directive,7 The conditions detainees tocould which be heldimmigrants in extended are segregationsubjected to induring immigration 30 days detention prior shouldto any no reporting longer be ofviewed the segregation.as a domestic With issue the that new concerns directive, immigration there must law be exclusively. reporting “wheneverThe treatment a detainee of immigrant has been detainees held continuously and especially in segregationthe use of forsolitary 14 days confinement [within a should21-day beperiod], contextualized 30 days, withinand at theevery discourse 30-day interval”of universal57 The human directive rights does protections not include that prohibitare afforded placing to alla detainee in segregation for a time period under the limit, removing the individual from segregation for a day or two, and then placing ofthe Persons individual with Disabilities in segregation, and Its Impactthus restarting on the Use ofthe Supermax clock on Solitary the time Confinement,limit. Removing 66 U. M IAMIthe L. RdetaineeEV. 523, 527prior (2011) to available the timeat triggering reporting,http://lawreview.law.miami.edu/w and then re-starting p-content/uploads/2012/02/De the clock results Marco.pdfin a longer, citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., segregation than without reporting such segregation. CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 53 (2006), available at 4.http://www.vera.org/sites/default/files/resources/downloads/Confronting_ConfiNo Right of Action for Wrongful Segregation Placements nement.pdf), 4 IItNVISIBLE is clear IN IfromSOLATION the, supralanguage note 2,that at 3. the new directive does not 5 Id. U.S. Dep’t of Homeland Security, U.S. Immigration and Customs provideEnforcement: detainees Salaries with and Expensesconcrete — actionable FY 2014 Congressional rights. “T hisBudget document isJustification an internal, in U.S. policy Department statement of Homeland of ICE. SecurityIt is not Annual intended Performance to, does not,Report: and Fiscal may Years not 2012 be– 2014relied, 43 upon-51, available to create at any right or benefit, substantivehttp://www.dhs.gov/sites/default/files/publications/MGMT/DHS or procedural, enforceable at law by any- party in any administrative,%20Annual%20Performance%20Report%20and%20Congressional civil, or criminal matter.”58 In addition,-Bu dget - the Justification-FY2014.pdf. See also IMMIGRATION FORUM, THE MATH OF PBNDS 2008 and 2011, and NDS 2000 are systematically IMMIGRATION DETENTION: RUNAWAY COSTS FOR IMMIGRATION DETENTION DO circumventedNOT ADD UP TO ,S ENSIBLEas are PotherOLICIES standards, 2 [hereinafter such THE MasATH the OF PrisonIMMIGRATION Rape EliminationDETENTION], available Act, thus at calling into question the likelihood of the newhttp://www.immigrationforum.org/images/uploads/m directive being fully implemented. 59 athofimm igrationdetentio n.pdf. Even(noting if that the t henew U.S. directiveDepartment is ofimplemented, Homeland Security it is(DHS) likely has to be sought to obtain $2 billion in funding for immigration detention centers for ineffective2014). The report due notesto thatthe thiscomplex figure is relationshipsought to cover between operational ICE costs andfor privatelyapproximately owned 257 facilities,or county at an-managed average of detention $5.05 million facilities, per day. and the longImmigration chain detentionof command not only to inhumane,be followed. degr60ading Additionally, and may amount the lack to of torture, but it is extremely costly. Many within the government question the effectiveness of the current system. Representative Spencer Bachus referred to the alternatives to detention during a House Judiciary Committee aimed at questioning57 Id. at §the 5.1. efficiency of the current “bed mandate” system. 586 Immigrants Id. at § 10. Held in Solitary Cells, supra note 2. 597 CharlesPrison Rape A. Pettigrew, Elimination Comment, Act of 2003, Technology Pub. L. No.and 108 the– 79,Eight 117 Amendment: Stat. 972. The60 Problem I.C.E. Directive, of Supermax supra Prisons, note 4 64, N.C.J.L.§ 5. & TECH. 191, 191-92 (2002). 144414421168 47 JO HN MARS HALL L. REV. 144414421168 Vol. 47:4 protectiondifferent from for itsthose predecessors, not qualifying particularly as personssince it hadwith the “specialbenefit ofvulnerabilities,” two years of planning. may be targeted and at risk due to other reasons such Likeas religion, the shift race in or conference ethnic group scheduling, identification. other changes have taken place within the LatCrit entity, including concerted efforts to continueV. INTERNATIONAL a process of institutionalization. PROTECTIONS AGAINST In recent THE U years,SE OF there has been a growing focusSOLITARY on how CONFINEMENT to capitalize on its critical niche, continue cultivating the next generation of critical scholars, and ensure that the batoA.n ofRight outsider to Due jurisprudence Process is passed along. Internally, the organization has shifted, including a gradual changingThe rightof the to guarddue processin leadership, has been so widelyto speak, recognized as well underas a downsizinginternational in law. administration. Traditionally theFor rightexample, to due from process 2008 recognizes to the present,the protection the Board against of Direabusesctors of wasthe legalintentionally system suchdownsized, as the withlack ato growingan effective number remedy of Board61 andseats excessivebeing occupied punishments. by junior More law professors.specifically,6 the right to due process includes the right to access legal Anotherresources major and thedevelopment right to representation, is LatCrit’s theacquisition right to accessof a physicaljudicial remedies,space for andthe, organization.most importantly The forproperty, our discussion Campo ,Sano the right(Spanish to forsubmit “Camp complaints Healthy,” toor themore administration literally, “Camp and Sanity”), receive isa paroper ten-acre resolution. parcel 62of land located in Central Florida. 7 Purchased by LatCritThe in Inter2011,-American the space Commissionis home to Theon LivingHuman Justice Rights Center has andrecognized the LatCrit that failingCommunity to provide Campus. immigrant8 The physicaldetainees facility of their serves due asprocess a means rights “to would level thebe contraryplaying fieldto theand American give LatCrit Declaration activists ofa fightingthe Rights chance and to Dutiesbe heard.” of 9Man The spaceand as is intendedsuch the due process protections must be strictly enforced due to the circumstances surroundingto serve detention as the andhub severity of their of theeducational, possible consequences. research, 63 advocacy and activism to remedy the imbalance and deficiencies of the current legal system. Having an 61 Universalindependent Declaration physical of Human base Rights,has G.A.become Res. 217critical (III) A,as art. 5, U.N. Doc.universities A/RES/217(III). and art.law 8 (Dec.schools 10, increasingly1948) [hereinafter are UDHReven ].less See also American Declaration of Rights and Duties of Man, O.A.S. Official Rec., OEA/Ser.L/V/II.23, doc.21 rev.6 (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, NamingOEA/Ser.L.V/II.82 and Launching, doc.6 rev.1a New, art. Discourse XVII, at of17 Critical(1992) [hereinafter Legal Scholarship American, 2 HDeclarationARV. LATINO] ( providingL. REV. 1 for(1997). the “Right to recognition of juridical personality” andSee for everyalso LatCritperson toBiennial be recognized Conferences as “having, LAT rightsCRIT :and LATINA obligations”). & LATINO The CAmericanRITICAL LDeclarationEGAL THEORY has, IbeenNC., http://latcrit.org/content/conferences/latcrita foundational instrument to establish- biennialjurisdiction-conferences/ over claims (last against visited theJuly United5, 2013) States. (providing The a Unitedlist of theStates previous is a conferences,signatory of theand Americanproviding Declaration.direct links Itonternational view sympos Covenantia articles on forCivil some and yearsPolitical (found Rights by art. following 9(4), Dec. the 16, respective1966, S. Treaty year’s Doc. link No. to 95its-20, corresponding 6 I.L.M. 368 webpage).(1967), 999 U.N.T.S. 171 [hereinafter ICCPR]. 62Additionally, See, e.g., ICCPR, LatCrit supra has developed note 61, art.a substantial 14; (holding body that of “e scholarshipveryone shall from be severalentitled otherto a standfair -aloneand publicsymposia: hearing inter byalia a the competent, South-North independent Exchange, andthe impartialStudy Space tribunal.”); Series, seethe also International Al-Jedda v. andUnited Comparative Kingdom, 2011Colloquia. Eur. CtLatCrit. H.R. Symposia1092, para, .L AT40C-41RIT :(July LAT C7,RIT 2011: LATINA) (The & EuropeanLATINO CCourtRITICAL of LHumanEGAL T HEORYRights, IreferencNC., http://latcrit.org/content/publications/latcriting paragraph 7 of the United Nations -symposium/Security Council (last Resolution visited July1546 5,which 2014). provides that detainees “should enjoy all the protections envisaged in all6 These the rightsinclude by Profe internationalssors Marc human-Tizoc González,rights conventions”) Andrea Freeman,; U.N. Sec.and CésarCouncil Cuahtémoc Res. 1546 ,García S/RES/1546 Hernández. (2004) See (quoting About LatCritthe Security, supra Councilnote 3 (listing in its reportthe professors relating toon resolution the LatCrit 1546 Board to recognize of Directors that there and istheir “an urgentrespective need law to provideschools). [a] remedy to lengthy internment…without adequate judicial oversight”)7 Campo; ReportSano, ofLAT theCRIT Secretary: LATINA -GeneralAND LATINO pursuant CRITICAL to paragraphLEGAL T HEORY30 of, IresolutionNC, http://www.latcrit.org/content/campo 1546 (2004), U.N. Sec. Council- sano/S/RES/1546 (last visited(2004). July 5, 2014). 638 Id. Report on Immigration in the United States Detention and Due Process, Inter9 Id.-Am. Comm’n H.R., OEA/Ser.L/V/II, Doc 78/10 (Dec. 30, 2010); The Right Vol. 47:4 ICE’s New Segregation Policy 144514331443

InU.S. addition, Immigration due processand Customs has been Enforcement understood (“ICE”)within andthe contextdetention of statefacilities responsibility, around thein whichcountry the Statehandle is responsibleapproximately for “any34,000 act immigrant or omission detainees on the da ily.part4 Sinceof the 2005 State the bodiesnumber in ofa immigrantsproceeding, detainedwhether hasof increased an administrative, by a worrisome punitive85 percent. or5 jurisdictional“Nearly half arenature.” isolated64 for 15 days or more,” which represents the limit at which point psychiatric and other experts recognize as 1.causingDelays severeand Lack mental of Reporting harm. 6 of in Solitary Confinement The case can be made that extended solitary as a common practiceIn additionconstitutes to thecruel, general inhumane principles and ofdegrading due process, treatment detainees or havetorture the in rightviolation to receiveof basic “prompt” principles notice of human of the rights. reasons “The for near the detentionpervasive or,practice in the caseof extendedof solitary solitaryconfinement, confinement the reasons as fora thecommonplace segregation. 65and This legallyright to legitimatenotice provides detention detainees methodwith a rightdemonstrates to dispute extreme the validity disregard or conditions for incarcerated of the det USention citizens “without and delay.”is tangible66 The basis reality upon reflects, which torturehowever, for that foreign detainees nationals fear seems that somehowsubmitting more complaints feasible.” relating7 The conditions to their todetention which immigrantsconditions willare negativelysubjected toaffect in immigrationtheir case or detention their treatment should noby prisonlonger personnel.be viewed Inas aWashoe domestic County, issue thatNevada, concerns seven immigrationdetainees filedlaw exclusively.an Inmate GrievanceThe treatment Form of againstimmigrant prison detainees personnel and and especially as a consequence the use of theysolitary were confinement removed should from be theircontextualized housing withinblocks the and discourse were segregated.of universal67 Byhuman way ofrights segregation, protections the thatdetainees are affordedwere reminded to all of the State’s control, and that detainees are subject to the degrading treatment by prison personnel. The use of solitary confinementof Persons with asDisabilities a form and of Itscoercion Impact onto the obstruct Use of Supermax access toSolitary a legal Confinement, 66 U. MIAMI L. REV. 523, 527 (2011) available at http://lawreview.law.miami.edu/w p-content/uploads/2012/02/De Marco.pdf, tociting Information John J. Gibbons on Consular & Nicholas Assistance de B. Katzenbach Within , VtheERA Framework INST. OF JUST of., the GuaranteesCONFRONTING of CDueONFINEMENT Process of: ALaw, REPORT Advisory OF T HEOpinion COMMISSION OC-16/99, ON InterSAFETY-Am. AND Ct. AH.R.BUSE (ser. IN AA)MERICA No. 16’S ( Oct.PRISONS 1, 1999). 53 (2006) , available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confi64 Juridical Condition and Rights of the Undocumented Migrants, Advisory nement.pdf),Opinion OC- 18/03, Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003). 654 I NVISIBLEICCPR, supra IN ISOLATION note 61,, supraart. 9(4 note). See 2, atGen. 3. Assembly, Hum. Rts. Comm., Report5 Id. ofU.S. the Dep Human’t of Homeland Rights Committee Security,, para.U.S. Immigration79(12), at 61, andU.N. Customs Doc. A/56/40 (Vol.Enforcement: I) (Supp.) Salaries (Jan. 1,and 2001 Expenses) (noting — that FY 2014“The CongressionalCommittee is concerned Budget about theJustification length of, detentionin U.S. Department (72 hours) ofbefore Homeland detainees Security are informed Annual Performanceof the charges beingReport: brought Fiscal Yearsagainst 2012 them.–2014 ,This 43- 51,period available of detention at before detainees are http://www.dhs.gov/sites/default/files/publications/MGMT/DHSinformed of the charges being brought against them is too- long and not in %20Annual%20Performance%20Report%20and%20Congressionalcompliance with article 9, paragraph 2, of the Covenant. The Committee-Bu dget- also depJustificationlores the-FY2014.pdf unwillingness. See ofalso the IMMIGR delegationATION FtoORUM answer, THE questions”);MATH OF Gen. IAssembly,MMIGRATION Hum. DETENTION Rts. Comm.,: RUNAWAY Report C ofOSTS the FOR Human IMMIGRATION Rights Committee DETENTION, paras. DO N100OT– 11,ADD at UP 21 TO–22, SENSIBLE U.N. Doc. POLICIES A/52/40 2 (Vol. [hereinafter I) (Supp.) THE (Jan. MATH 1, 1997)OF IMMIGRATION (stating that Da ETENTIONwaiting period], available of ninety at -six hours before judicial review is violative of due http://www.immigrationforum.org/images/uploads/mprocess); INVISIBLE IN ISOLATION, supra note 2, athofimm at 21 (noting igrationdetentio that “ICE n.pdfdetention. (noting standards that the U.S.state Department that individuals of Homeland should Security only (DHS)be placed has in disciplinarysought to obtain segregation $2 billion after in funding they havefor immigration had a disciplinary detention hearingcenters forand a review2014). The panel report has notesdetermined that this that figure they is have sought violated to cover a facility operational rule.”); costs PBNDS for 2011,approximately supra note 257 3 9facilities,, at 145 ( atnoting an average that “[t] ofhe $5.05 detainee million shall per be day. advised of the reasonsImmigration he/she detention is being not placed only in inhumane, a dry cell, degr the adingpurpose and of may this amountplacement, to the conditionstorture, but that it is he/she extremely can expect.”).costly. Many within the government question the effectiveness66 ICCPR, ofsupra the current note 61 ,system. art. 9(4). Representative Spencer Bachus referred to the 67alternatives See FOIA toResponse detention Washoe during aCounty House JudiciaryJail, Nev., CommitteePart 1, at aimed79 (Apr. at 4, 2012)questioning (on file the withefficiency The ofJohn the Marshallcurrent “bed Law mandate” School Humansystem . Rights Project) (produced6 Immigrants by Washoe Held Countyin Solitary Jail Cells, in response supra note to Freedo 2. m of Information Act requests7 Charles that A.The Pettigrew, John Marshall Comment, Law Technology School Human and the Rights Eight Project Amendment: (now InternationalThe Problem ofHuman Supermax Rights Prisons, Clinic) 4 requested).N.C.J.L. & TECH. 191, 191-92 (2002). 144614441168 47 JO HN MARS HALL L. REV. 144614441168 Vol. 47:4 remedydifferent isfrom clearly its inpredecessors, contravention particularly of the right since to dueit had process. the benefit of two years of planning. Like the shiftB. Rightin conference to Humane scheduling, Treatment other changes have taken place within the LatCrit entity, including concerted efforts to continueUnder ainternational process of institutionalization. human rights, itIn irecents a wellyears,-accepted there hasprinciple been athat growing “[n]o focusone shall on how be tosubjected capitalize to ontorture its critical or to niche,cruel, continueinhuman cultivatingor degrading the treatment next generation or punishment.” of critical68 scholars,The right and to ensurehumane that treatment the bato hasn beenof outsider recognized jurisprudence as non-derogable is passed due along. to its Internally,conception asthe anorganization essential andhas centralshifted, proteincludingction ina gradualhuman changingrights. 69 “Theof the Universal guard in Declaration leadership, ofso Human to speak, Rights as well(UDHR), as a downsizingthe International in administration. Covenant on CivilFor andexample, Political from Rights 2008 (ICCPR), to the present,and the theUnited Board Nations of Dire Conventionctors was intentionally Against Torture downsized, and Other with aCruel, growing Inhuman number or ofDegrading Board seats Treatment being occupiedor Punishment by junior (CA lawT), professors.prohibit 6torture, inhuman or degrading treatment or punishment.”Another 70major The Interdevelopment-American is Commission’sLatCrit’s acquisition Principles ofand a physicalBest Practices space recognizefor the organization. and establish The that property, the right Campo to humane Sano (Spanishtreatment for takes “Camp priority Healthy,” over or moreother literally,rights when“Camp possiblySanity”), inis aconflict. ten-acre71 parcelCentral of landto ourlocated discussion in Central of Florida.the use7 Purchased of solitary by LatCritconfinement in 2011, is the the concept space ofis torturehome to or The degrading Living andJustice inhumane Center andtreatment. the LatCrit Community Campus. 8 The physical facility serves as a [T]hemeans term “to level"torture" the playingmeans fieldany actand bygive which LatCrit severe activists pain ora fightingsuffering, chance whether to bephysical heard.” 9or The mental, space is is intentionallyintended inflicted on a person for such purposes as obtaining from him or a third person informationto serve or aas confession, the hub punishingof their himeducational, for an act research, he or a third personadvocacy has committed and activism or is suspectedto remedy ofthe having imbalance committed, and or intimidatingdeficiencies or coercing of the himcurrent or a legalthird person,system. orHaving for any anreason based independenton discrimination physical of anybase kind, has when become such paincritical or sufferingas is inflicteduniversities by or andat thelaw instigationschools increasingly of or with are the even consent less or

68 UDHR, supra note 61, art. 5; ICCPR, supra note 61, art. 7; Convention NamingAgainst Tortureand Launching and Other a New Cruel, Discourse Inhuman, of Criticalor Degrading Legal ScholarshipTreatment , or2 HPunishment,ARV. LATINO G.A.L. R EVRes.. 1 (1997).39/46, art. 1, para. 1, U.N. GAOR, 39th Sess., Supp. No. See51, U.N.also Doc.LatCrit A/39/51 Biennial (June 26,Conferences 1987) [hereinafter, LATCRIT CAT].: L ATINA & LATINO CRITICAL69 Geneva LEGAL Convention THEORY Relative, INC., tohttp://latcrit.org/content/conferences/latcrit the Treatment of Prisoners of War, art. - biennial3, Aug. 12,-conferences/ 1949, 6 U.S.T. (last 3316,visited 75 July U.N.T.S. 5, 2013) 135 (providing; Pub. Comm. a list Against of the Tortureprevious inconferences, Israel v. Gov’t and of providing Israel, Case direct No. linksHCJ 769/02to view (2005), sympos availableia articles at for some http://www.haguejusticeportal.net/index.php?id=7624.years (found by following the respective year’s link INTER to -AitsM .corresponding COMM’N H.R,webpage). REPORT ON TERRORISM AND HUMAN RIGHTS, OEA/Ser.L/V/II.116, doc. 5 rev.Additionally, 1 corr. (2002) LatCrit [hereinafter has developed REPORT ONa substantialTERRORISM ],body available of scholarship at from severalhttp://www1.umn.edu/humanrts/iachr/terrorism other stand-alone symposia: inter alia -thein dex.html South-North; American Exchange, the Declaration,Study Space supra Series, note the 61 , Internationalart. XXV. and Comparative Colloquia. LatCrit Symposia70 Buried, LAT AliveCRIT,: supraLATC RITnote: L 16,ATINA at 27& . LSATINOee UDHR, CRITICAL supra L noteEGAL 61T,HEORY art. 5, (IstatingNC., http://latcrit.org/content/publications/latcritthat “[n]o one shall be subjected to torture-symposium/ or to cruel, (last inhuman visited or degradingJuly 5, 2014). treatment”); ICCPR, supra note 61, art. 7; (stating that “[n]o one shall6 beThese subjected include to Profetorturessors or toMarc cruel,-Tizoc inhuman González, or degradingAndrea Freeman, treatment and or Césarpunishment.”); Cuahtémoc CAT, García supra Hernández. note 68, art. See 1, About(stating LatCrit that “t,orture supra meansnote 3 any(listing act theby whichprofessors severe on pain the or LatCritsuffering, Board whether of Directors physical orand mental, their isrespective intentionally law schools).inflicted on a person.”). 717 CampoInter-Am. Sano Comm’n, LATC H.R.,RIT: LPrinciplesATINA AND and LATINO Best PracticesCRITICAL onL EGALthe Protection THEORY, IofNC Persons, http://www.latcrit.org/content/campo Deprived of Liberty in the Americas-sano/ (last, approved visited byJuly the 5, Commission 2014). during8 Id. its 131st regular period of sessions (2008), available at http://www.oas.org/en/iachr/mandate/Basics/principlesdeprived.asp.9 Id. Vol. 47:4 ICE’s New Segregation Policy 144714331445 acquiescenceU.S. Immigration of a public officialand Customs or other personEnforcement acting in(“ICE”) an official and detentioncapacity. Itfacilities does not around include thepain countryor suffering handle arising approximately only from, 34,000inherent immigrant in or incidental detainees to lawful daily. sanctions.4 Since 722005 the number of immigrantsFrom a detainedcursory hasreading increased of article by a1 worrisomeof the CAT, 85 some percent. may5 que“Nearlystion halfwhether are theisolated use offor solitary 15 days confinement or more,” canwhich be representsconsidered athe form limit of at torture. which pointHowever, psychiatric when consideringand other experts the reality recognize of how as thecausing use severeof solitary mental confinement harm. 6 is implemented, it is clearer that the practiceThe case may can fall be withinmade thatthe definitionextended ofsolitary torture asunder a common article practice1. If solitary constitutes confinement cruel, isinhumane used as a andpunitive degrading measure treatment by way orof torturesegregating in violation and targeting of basic principlesparticular ofindividuals, human rights. due “The to theirnear pervasiveidentity, challengepractice of ofauthority extended or othersolitary reason, confinement in violation ofas thea commonplacedomestic minimum and standards,legally thenlegitimate such State detention-sponsored conductmethod demonstratesin some instances extreme may disregard rise to thefor incarceratedlevel of torture. US Twocitizens Special and isRapporteurs tangible basison tortureupon whichand othertorture cruel, for foreigninhuman, nationals or degrading seems somehowtreatment moreor punishment feasible.” 7 Thehave conditions issued reportsto which stating immigrants that “theare prolongedsubjected to isolation in immigration of detainees, detention may amount should tono tortur longere.” 73be viewed as aThe domestic United issueNations that General concerns Assembly’s immigration Body lawof Principles exclusively. for theThe Protectiontreatment of Allimmigrant Persons detaineesunder Any and Formespecially of Detention the use orof Imprisonmentsolitary confinement (“Body shouldof Principles”) be contextualized contains withinan absolute the discourse ban on theof universaluse of torture human or otherrights cruel, protections inhuman, that or degradingare afforded treatme to allnt or punishment in a prison setting. 74 The Body of Principles explains that “the holding of a detained or imprisoned person in conditionsof Persons with which Disabilities deprive and him, Its Impact temporarily on the Use or of permanently, Supermax Solitary of the useConfinement, of any of66 hisU. M naturalIAMI L. R senses,EV. 523, such527 (2011) as sight available or hearing, at or of his awareness”http://lawreview.law.miami.edu/w may amount to p-torturecontent/uploads/2012/02/De or other cruel, Marco.pdfinhuman,, or citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 53 (2006), available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confi nement.pdf),72 CAT, supra note 68, art. 1. 734 I NVISIBLE INTERIM RINEPORT ISOLATION OF THE, supra SPECIAL note R2,APPORTEUR at 3. ON TORTURE AND OTHER CRUEL5 Id., IU.S.NHUMAN Dep ’tOR of DHomelandEGRADING Security,TREATMENT U.S. OR Immigration PUNISHMENT and, supra Customs note 11, para.Enforcement: 77. See Salariesalso SPECIAL and ExpensesRAPPORTEUR — FY ON 2014 TORTURE Congressional, INTERIM BudgetREPORT OF THE SJustificationPECIAL RAPPORTEUR, in U.S. Department ON TORTURE of Homeland AND OSecurityTHER CAnnualRUEL, PerformanceINHUMAN OR DReport:EGRADING Fiscal TREATMENT Years 2012 OR–2014 PUNISHMENT, 43-51, available, passim, at Gen. Assembly, transmitted byhttp://www.dhs.gov/sites/default/files/publications/MGMT/DHS Note of the Secretary-General, U.N. Doc. A/66/268 (Aug. 5, 2011)- (by Juan E. Méndez)%20Annual%20Performance%20Report%20and%20Congressional (noting that “physical conditions and the prison regime-Bu of dget solitary- confinementJustification- FY2014.pdfcause severe. Seemental also andIMMIGR physicalATION pain FORUM or suffering,, THE MATH when OF used as IaMMIGRATION punishment, D duringETENTION pre: -RtrialUNAWAY detention, COSTS indefinitely, FOR IMMIGRATION prolonged, DETENTION on juveniles DO NorOT persons ADD UP TOwith SENSIBLE mental Pdisabilities,OLICIES 2 [hereinafter it can amount THE MtoATH cruel, OF I MMIGRATIONinhuman or DdegradingETENTION treatment], available or at punishment and even torture”). http://www.immigrationforum.org/images/uploads/m74 Buried Alive, supra note 16, at 28. See Body athofimm of Principles igrationdetentio for the Protectionn.pdf. (noting of Allthat Persons the U.S. under Department Any Form of Homelandof Detention Security or Imprisonment, (DHS) has G.A. Res.sought 43/173, to obtain annex, $2 billionart. 1 in& funding6, U.N. forDoc immigration A/RES/43/173 detention (Dec. 9, centers 1988) ( statfor ing that2014 ).the The term report “‘cruel, notes inhuman that this orfigure degradi is soughtng treatment to cover or operational punishment’ costs should for beapproximately interpreted 257so asfacilities, to extend at anthe average widest ofpossible $5.05 million protection per day.against abuses, whetherImmigration physical detention or mental, not only including inhumane, the holdingdegrading of anda detained may amount or imprisoned to persontorture, inbut conditions it is extremely which costly. deprive Many him, within temporarily the government or permanentl questiony, ofthe the useeffectiveness of any of of his the natural current senses, system. such Representative as sight or hearing, Spencer or Bachus of his referredawareness to ofthe place alternatives and the topassing detention of time.”);during asee House also JudiciaryU.N. Hum. Committee Rts. Comm., aimed General at quCommentestioning 20, the art. efficiency 6–7, U.N. of the Doc. current HRI/GEN/1/Rev. “bed mandate” 1 at system 30 (1994). (noting that “prolonged6 Immigrants solitary Held confinement in Solitary Cells,of the supra detained note or2. imprisoned person may amount7 Charles to acts A. Pettigrew,prohibited Comment,by article Technology7.”) Article and7 of the the Eight ICCPR Amendment: refers to Thetorture Problem or to cruel,of Supermax inhuman Prisons, or degrading 4 N.C.J.L. treatment & TECH or. 191, punishment 191-92 (2002).. 144814461168 47 JO HN MARS HALL L. REV. 144814461168 Vol. 47:4

degradingdifferent from treatment its predecessors, or punishment. particularly75 In since addition, it had thethe benefitBasic Principlesof two years for of planning.the Treatment of Prisoners (hereinafter “Basic Principles”)Like the emphasizes shift in conferencethat solitary scheduling, confinement other as achanges punishment have takenor restriction, place within should the be abolished.LatCrit entity76. , including concerted efforts to continue a process of institutionalization. In recent years, there 1.hasThe been Use a of growing Solitary focus Confinement on how toCausing capitalize Physical, on its criticalMental niche,and continueMoral Anguishcultivating the next generation of critical scholars, and ensure that the baton of outsider jurisprudence is passed along. Internally, “Every theperson organization has the right has to shifted,have his includingphysical, mental,a gradual and changingmoral integrity of the guardrespected.” in leadership,77 This protectionso to speak, is asparticularly well as a downsizingimportant forin our administration. discussion, since For it example,emphasizes from that 2008 the rightto the to present,humane thetreatment Board ofis Direnotctors limited was tointentionally physical abuse, downsized, but morewith aimportantly growing numberit includes of Board the protectionseats being from occupied mental by andjunior moral law professors.mistreatment.6 78 This protection of course is central to the use of solitaryAnother confinement major ,development since the is severeLatCrit’s mental acquisition and moralof a consequencesphysical space have for beenthe organization.documented extensively.The property, Campo Sano (SpanishAccording for “Camp to ICE, Heal disciplinarythy,” or more segregation literally, is“Camp only permittedSanity”), isif thea ten detainee-acre parcel has ofcommitted land located serious in Central misconduct Florida. in7 violationPurchased of bya facilityLatCrit rule.in 2011,79 In the practice, space ishowever, home to disciplThe Livinginary Justicesegregation Center is andcommonly the LatCrit used Communityas a punitive Campus. measure8 The for physical minor infractionsfacility serves or minoras a means deviations “to l evelfrom the facility playing regulation. field and giveFor example,LatCrit activists detainees a havefighting been chance “sent to beto heard.”the hole”9 The for space requesting is intended to watch Spanish language television, for submitting complaints to the facility administrationto serve asfor theintimidation hub of their and educational,wrongful placementresearch, in segregation,advocacy80 orand for havingactivism medically to remedy necessary the imbalance pills on his and person that deficiencieshad been ofpreviously the current approved legal system.by another Having facility. an 81 Disciplinaryindependent segregation physical is basenot onlyhas usedbecome under critical serious as or exceptionaluniversities circumstances, and law butschools to alsoincreasingly maintain are day even-to-day less order and remind detainees of the facility rules. The use of solitary is conceptualized as punitive at its core, not as a consequence of misconduct, and as a way to control detainees and maintain an Naming and Launching a New Discourse of Critical Legal Scholarship, 2 HenvironmentARV. LATINO L. of R fearEV. 1 and(1997). acquiescence. See also LatCrit Biennial Conferences, LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC., http://latcrit.org/content/conferences/latcrit- biennial-conferences/ (last visited July 5, 2013) (providing a list of the previous conferences, and providing direct links to view symposia articles for some years75 G.A.(found Res. by 43/173, following art. 6.the respective year’s link to its corresponding webpage).76 Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, Annex, art. Additionally,7, at 45, U.N. LatCrit Doc. A/RES/45/49 has developed (Dec. a 14,substantial 1990). body of scholarship from several77 G.A. other Res. stand 45/111.-alone symposia: inter alia the South-North Exchange, the Study78 AmericanSpace Series, Convention the International on Human andRights Comparative art. 5, Nov. Colloquia. 22, 1969, LatCrit 1144 U.N.T.S.Symposia 123., LAT CRIT: LATCRIT: LATINA & LATINO CRITICAL LEGAL THEORY, INC.79, Id.http://latcrit.org/content/publications/latcrit -symposium/ (last visited July80 5, See 2014). FOIA Response Washoe County Jail, Nev., supra note 67, at 80 (produced6 These by includeWashoe Profe Countyssors Jail Marc in -responseTizoc González, to Freedom Andrea of Information Freeman, andAct requestsCésar Cuahtémoc that The GarcíaJohn Hernández.Marshall Law See School About HumanLatCrit, Rightssupra noteProject 3 (listing (now Internationalthe professors Human on the Rights LatCrit Clinic) Board requested of Directors and has and in itstheir possess respectiveion). law schools).81 See FOIA Response Seneca County, Ohio, Part 2, 5 (Mar. 12, 2012) (on file 7with Campo The SanoJohn, MarshallLATCRIT :Law LATINA School AND Human LATINO Rights CRITICAL Project) LEGAL (produced THEORY by, SenecaINC, http://www.latcrit.org/content/campo County Jail, Ohio, in response to- sano/Freedom (last of visitedInformation July 5, Act 2014). requests that8 TheId. John Marshall Law School Human Rights Project (now International Human9 Id. Rights Clinic) requested and has in its possession). Vol. 47:4 ICE’s New Segregation Policy 144914331447

2. VulnerableU.S. Immigration Persons in Solitaryand Customs Confinement Enforcement (“ICE”) and detention facilities around the country handle approximately 34,000Vulnerable immigrant persons detainees have beendaily. recognized4 Since 2005 in domestic the number systems of andimmigrants international detained law has as increased persons byneeding a worrisome special 85protections. percent. 5 States“Nearly musthalf are“afford isolated specific for 15guarantees days or morefor ,the” which care, represents aid and protection”the limit at ofwhich such point persons. psychiatric82 Though and othervulnerable experts personsrecognize are as entitledcausing severeto special mental protections harm. 6 under international law, most detentionThe casecenters can behousing made thatcriminally extended convicted solitary aspersons a common and practiceimmigrant constitutes detainees cruel, house inhumane vulnerable and persons degrading such treatment as LGBT or tortureindividuals in violation and persons of basic with principles physical andof human mental rights. disabilities. “The83 near pervasiveEven practicethough theof extendednew directive solitary provides confinement for enhanced as a protectionscommonplace for and“vulnerable” legally persons,legitimate thedetention classification method of “vulnerable”demonstrates does extreme not include disregard such for factors incarcerated such as USage, citizensrace, ethnic and oris tangiblelinguistic basis identity. upon whichIn addition, torture practicefor foreign demonstrates nationals seemsthat vulnerablesomehow more persons feasible.” continue7 The to conditions be segregated. to which Facilities immigrants regularly are segregatesubjected to(use in immigrationsolitary confinement) detention shouldpersons no longerwith particularbe viewed vulnerabilitiesas a domestic orissue as thata wayconcerns to “manage”immigration the lawjail exclusively.or prison population.The treatment84 Thisof immigrant is especially detainees troubling and especially considering the usethat of “[t]orturesolitary confinement survivors, shouldvictims be ofcontextualized human trafficking, within the and discourse other vulnerableof universal groups human can r ightsbe detainedprotections for thatmonths are orafforded even years,to all further aggravating their isolation, depression, and other mental health problems associated with their past trauma.”85 Between 2010of Persons to with2013, Disabilities approximately and Its Impact6,000 on persons the Use ofwere Supermax detained Solitary who wereConfinement, torture 66 survivors U. MIAMI L.and REV who. 523 were, 527 (2011)seeking available asylum at protection. 86 http://lawreview.law.miami.edu/wIt has been widely recognized p-content/uploads/2012/02/De by many groups, Marco.pdfincluding, the citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., UN Refugee Agency (hereinafter “UNHCR”) that the detention of CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND immigrants,ABUSE IN AMERICA especially’S PRISONS asylum 53 (2006) seekers,, available as at a way to penalize their illegalhttp://www.vera.org/sites/default/files/resources/downloads/Confronting_Confi entry or stay is in contravention of the 1951 Refugee Convention.nement.pdf), 87 States “shall not apply to the movements of such 4 INVISIBLE IN ISOLATION, supra note 2, at 3. 5 Id. U.S. Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement: Salaries and Expenses — FY 2014 Congressional Budget Justification82 Report ,on in TerrorismU.S. Department, supra noteof Homeland 69, para. Security 194. Annual Performance Report:83 INVISIBLE Fiscal Years IN ISOLATION 2012–2014, supra, 43-51, note available 2, at 3. at http://www.dhs.gov/sites/default/files/publications/MGMT/DHS84 Id. at 3, 8. - %20Annual%20Performance%20Report%20and%20Congressional85 DETENTION WATCH NETWORK, About the U.S. Detention and-Bu Deportation dget- SystemJustification, http://detentionwatch-FY2014.pdf. See alsonetwork.org/resources IMMIGRATION FORUM (last, THE visitedMATH OFAug. 29, I2014).MMIGRATION See also DETENTION Buried : RAliveUNAWAY, supra COSTS note FOR 16, IMMIGRATION at 32 (refer DETENTIONring to ”DoneO NgroundbreakingOT ADD UP TO SENSIBLEstudy of P OLICIESdetained 2 [hereinafterasylum seekers, THE M mostATH OFof I MMIGRATIONwhom have DsurvivedETENTION torture], available and atper secution before fleeing to the United States and http://www.immigrationforum.org/images/uploads/mrequesting asylum, investigators found extremely athofimm high rates igrationdetentio of anxiety, n.pdfdepression,. (noting and that PTSD the U.S. symptoms.” Department). Physicians of Homeland for SecurityHuman (DHS)Rights hasand The Bellevue/NYUsought to obtain Program $2 billion for in Survivors funding for of immigrationTorture, From detention Persecution centers to Prison:for The2014 ).Health The report Consequences notes that ofthis Detention figure is soughtfor Asylum to cover Seekers, operational 56- 57costs (2003), for approximatelyavailable at 257 http://facilities, physiciansforhumanrights.org/library/reports/from at an average of $5.05 million per day. - Immigrationpersecution- to detention-prison.html. not only inhumane, degrading and may amount to torture,86 THE but C ENTERit is extremely FOR VICTIMS costly. OF Many TORTURE within, ET the AL .,government TORTURED ANDquestion the DeffectivenessETAINED: S URVIVORof the current STORIES system. OF U.S. Representative IMMIGRATION Spencer DETENTION Bachus 2 (Nov. referred to 2013),the alternatives available toat detention during a House Judiciary Committee aimed at http://www.cvt.org/sites/cvt.org/files/Report_TorturedAndDetained_Nov2013.pquestioning the efficiency of the current “bed mandate” system. df. 6 Immigrants Held in Solitary Cells, supra note 2. 877 CharlesKristy Siegfried,A. Pettigrew, Alternatives Comment, to TechnologyImmigration and Detention the Eight Prove Amendment: Cheaper, MoreThe Problem Humane of, SupermaxIRIN, U.N. Prisons, Office 4 N.C.J.L.for the &Coordination TECH. 191, 191 of- 92Humanitarian (2002). 145014481168 47 JO HN MARS HALL L. REV. 145014481168 Vol. 47:4

refugeesdifferent fromrestrictions its predecessors, other than particularly those which since are necessary.”it had the benefit88 The ofUN two General years ofAssembly planning. has recognize the need to emphasize “that detentionLike theshall shift be thein conferencelast resort scheduling, and permissible other changesonly for have the takenshortest place period within of time the LatCritand that entity alternatives, including to detentionconcerted shouldefforts tobe continuesought whenever a process possible.” of institutionalization.89 In recent years, there has been a growing focus on how to capitalize on its critical niche, 3.continueImmigrant cultivating Detainees the are next Virtually generation Indistinguishable of critical scholars, from and ensureCriminally that theConvicted baton Personsof outsider in Detention jurisprudence Facilities is passed along. Internally, the organization has shifted, including a gradual changingWithin of the guardconcept in ofleadership, humane sotreatment, to speak, asit wellhas asbeen a recognizeddownsizing thatin administration.unconvicted persons For example,must not from be detained2008 to withthe convictedpresent, the persons. Board90 of ThisDire ctorsspecial was protection intentionally under downsized, the right with to ahumane growing treatment number isof Boardessential seats for beingthe protectionoccupied byof immigrantjunior law professors.detainees due6 to the inability of detention centers to implement domesticAnother and majorinternational development protections is LatCrit’swhen there acquisition is no physical of a separationphysical space of both for populations.the organization. The property, Campo Sano (SpanishImmigrant for “Camp detainees Healthy,” are or held more in literally, the same “Camp facilities Sanity”), (jails, is aprisons, ten-acre and parcel other of land detention located incenters) Central that Florida. house7 Purchased criminally by LatCritconvicted in persons.2011, the “[M]ost space isimmigration home to The detention Living Justicefacilities Center are andindistinguishable the LatCrit Communityfrom jails: Campus.men and8 womenThe physical are confined facility behindserves highas a meanswalls “tolined level with the razorplaying wire field andand givehave LatCritlittle freedomactivists ofa movementfighting chance or direct to be contact heard.” with9 The family.” space 91 is intended It has been widely accepted that if individuals detained under civil proceedingsto serve as are the subject hub toof thetheir similar educational, conditions research, as convicted persons,advocacy the detention and activism amounts to remedyto penalty. the92 imbalance This is especiallyand importantdeficiencies when thereof the are currentalternatives legal to system.the conditions Having or antype of detention.independent93 When therephysical are alternativesbase has lessbecome harsh, critical they mustas be universities and law schools increasingly are even less

Affairs, (Aug. 30, 2013), http://www.irinnews.org/report/98666/alternatives-to- immigrationNaming and-detention Launching-prove a -Newcheaper Discourse-more-humane; of Critical Legal1951 ScholarshipConvention, 2 HRelatingARV. LATINO to the L. StatusREV. 1 of(1997). Refugees, art. 31, G.A. Res. 429(V), (Jul. 28, 1951) [hereinafterSee also Refugee LatCrit Convention]. Biennial Conferences, LATCRIT: LATINA & LATINO CRITICAL88 Refu geeLEGAL Convention, THEORY ,supra INC. ,note http://latcrit.org/content/conferences/latcrit 87, art. 31(2). - biennial89 Special-conferences/ Rapporteur (last visitedon Trafficking, July 5, 2013) Promotion (providing and a listProtection of the previous of All conferences,Human Rights, and Civil,providing Political, direct linksEconomic, to view Social sympos andia articlesCultural for Rights, some yearsIncluding (found the byRight following to Development the respective, para year’s 67, Gen.link Assembly,to its corresponding U.N. Doc. webpage).A/HRC/10/16 (Feb. 20, 2009) (by Joy Ngozi Ezeilo), available at http://daccess- dds-Additionally, LatCrit has developed a substantial body of scholarship from ny.un.org/doc/UNDOC/GEN/G09/110/43/PDF/G0911043.pdf?OpenElementseveral other stand-alone symposia: inter alia the South-North Exchange,. the Study90 I NVISIBLESpace Series, IN ISOLATION the International, supra note and2, at Comparative8. See also Editorial, Colloquia. Why LatCrit DetainSymposia Nonviolent, LATCRIT Immigrants?: LATCRIT: , LL.A.ATINA TIMES & ,L Mar.ATINO 24, C 2013,RITICAL available LEGAL atT HEORY, Ihttp://www.latimes.com/news/opinion/editorials/NC., http://latcrit.org/content/publications/latcrit la-symposium/-ed-detainees - (last visited July20130324,0,6561747.story 5, 2014). http://articles.latimes.com/2013/mar/24/opinion/la- ed-detainees6 These -include20130324 Profe (reportingssors Marc that- Tizocmore thanGonzález, 70% ofAndrea immigrant Freeman, detainees and Césarhave no Cuahtémoc criminal history, García althoughHernández. they See are About housed LatCrit in the, samesupra facilities note 3 (listing with theconvicted professors detainees). on the LatCrit Board of Directors and their respective law schools).91 INVISIBLE IN ISOLATION, supra note 2, at 3. 927 CampoJones v.Sano Blanas,, LAT 393CRIT F.3d: L ATINA918, 933AND–34 L ATINO(9th Cir. CRITICAL 2004) (citing LEGAL Demery THEORY v., IArpaio,NC, http://www.latcrit.org/content/campo 378 F.3d 1020, 1028 (9th Cir. 2004));-sano/ Bell (last v.visited Wolfish, July 4415, 2014). U.S. 520, 536.8 (1979).Id. 939 Id. Demery , 378 F.3d at 1028, (quoting Bell, 441 U.S. at 538). Vol. 47:4 ICE’s New Segregation Policy 145114331449 considered.U.S. 94Immigration and Customs Enforcement (“ICE”) and detentionIt is facilitiestherefore aroundclear that the the country current handle practices approximately of housing 34,000immigrant immigrant detainees detainees in facilities daily. that4 Sincehave been2005 designedthe number and areof immigrantsmanaged for detained penal haspurposes increased establish by a aworrisome punitive 85system percent. for5 immigrant“Nearly half detaineesare isolated awaiting for 15 daystheir or civilmore ,”proceedings. which represents This practicethe limit of at placing which pointimmigrant psychiatric detainees and inother the experts same facilitiesrecognize and as subjectcausing tosevere the samemental treat harm.ment6 is in contravention of international protectionsThe case of canunconvicted be made thatpersons. extended In addition,solitary asthe a commoncurrent practice constitutesof using solitarycruel, inhumane confinement and todegrading penalize treatment immigrant or torturedetainees in awaitingviolation theirof basic immigration principles ofcase human is in rights.contravention “The near of pervasiveinternational practice human rights.of extended solitary confinement as a commonplace and legally legitimate detention method demonstrates extreme disregardVI. CONCLUSION for incarcerated US citizens and is tangible basis upon which torture for foreign nationals seems somehowThe moresystematic feasible.” State7 The-sponsored conditions implementation to which immigrants of solitary are confinementsubjected to in immigration detention isshould in clear no longercontravention be viewed of basicas a domesticinternational issue humanthat concerns rights principlesimmigration recognized law exclusively. by the internationalThe treatment community, of immigrant including detainees the andUnited especially Nations the and use the of Intersolitary-Am confinementerican System should on beHuman contextualized Rights. Thewithin use the of discourse solitary confinementof universal hashuman been raights “useful” protections tool of punishment that are forafforded the State to allto control, degrade and mistreat detainees, thus destroying their humanity. “Prisons do not disappear problems, they disappear humanof Persons beings. with Disabilities”95 The andUnited Its Impact States on shouldthe Use ofabandon Supermax the Solitary current useConfinement, of solitary 66 U. MconfinementIAMI L. REV. 523 and, 527 the(2011) current available punitiveat use of immigrationhttp://lawreview.law.miami.edu/w detention for p-othercontent/uploads/2012/02/De more humane and Marco.pdf available, citing John J. Gibbons & Nicholas de B. Katzenbach, VERA INST. OF JUST., alternatives. CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA’S PRISONS 53 (2006), available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confi nement.pdf), 4 INVISIBLE IN ISOLATION, supra note 2, at 3. 5 Id. U.S. Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement: Salaries and Expenses — FY 2014 Congressional Budget Justification, in U.S. Department of Homeland Security Annual Performance Report: Fiscal Years 2012–2014, 43-51, available at http://www.dhs.gov/sites/default/files/publications/MGMT/DHS- %20Annual%20Performance%20Report%20and%20Congressional-Bu dget- Justification-FY2014.pdf. See also IMMIGRATION FORUM, THE MATH OF IMMIGRATION DETENTION: RUNAWAY COSTS FOR IMMIGRATION DETENTION DO NOT ADD UP TO SENSIBLE POLICIES 2 [hereinafter THE MATH OF IMMIGRATION DETENTION], available at http://www.immigrationforum.org/images/uploads/m94 Hallstrom v. City of Garden City, 991 F.2d athofimm1473, 1484 igrationdetentio (9th Cir. 1993) (quotingn.pdf. (noting Bell, that441 tU.S.he U.S. at 539 Department n.20). See ofalso Homeland I.C.E. Directive, Security supra(DHS) notehas 46, § 5.2sought (noting to obtain that $2w henbillion a indetainee funding is for considered immigration for detention segregation centers placement for “[o]ptions2014). The for report alternate notes thathousing this orfigure custodial is sought arrangements” to cover operational should have costs been for considered).approximately 257 facilities, at an average of $5.05 million per day. Immigration95 Angela Davis, detention Masked not only Racism: inhumane, Reflections degrading on the and Prison may Industrial amount to Comptorture, lex but, COLOR it is LextremelyINES (Sept. costly. 10, 1998, Many 12:00 within PM), the government question the http://colorlines.com/archives/1998/09/masked_racism_reflections_on_the_priseffectiveness of the current system. Representative Spencer Bachus referred to on_industrial_complex.html,the alternatives to detention duringquoted ain House Kijana Judiciary Tashiri Askari, Committee A Survivor’s aimed at Manualquestioning for Solitarythe efficiency Confinement: of the current Self-Destruction “bed mandate” to the system Reconstruction. of the Self6— ImmigrantsMy Path to HeldRedemption in Solitary (2011), Cells, available supra noteat 2. http://prisonerhungerstrikesolidarity.wordpress.com/a7 Charles A. Pettigrew, Comment, Technology and-survivors the Eight-manual Amendment:-for- Thesolitary Problem-confin ofement Supermax-self-destruction Prisons, 4 -N.C.J.L.to-the-reconstruction & TECH. 191,- of191-self/-92 (2002).