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Additional Reforms Needed to End Unnecessary and Extended Use of Harshest Form of Custody

Heartland Alliance’s National Immigrant Justice Center (NIJC) applauds the U.S. Immigration and Customs Enforcement (ICE) directive which could significantly improve federal oversight of immigration detention facilities’ use of solitary confinement.

“We are pleased that ICE has responded to decades of advocacy on this issue and has finally made a serious effort to review and hold its contract facilities accountable for their use of solitary confinement, which is one of the harshest forms of punishment and is generally inappropriate and unnecessary,” said NIJC Executive Director Mary Meg McCarthy. “Such oversight is critical to protect detained immigrants’ human rights. NIJC and our allies will remain vigilant to ensure the directive is meaningfully implemented and succeeds in preventing the suffering and abuses we’ve seen too often in the past.”

The directive requires all detention facilities which contract with ICE to report cases in which individuals are held in solitary confinement within a certain time period. The directive explicitly states that solitary confinement should be used only as a last resort, and that release from detention should be considered for individuals who are not subject to mandatory custody laws. In addition, the directive includes special reporting requirements for vulnerable populations, including people with mental illnesses; severe medical illnesses or disabilities; pregnant or nursing women; elderly individuals; and those susceptible to harm due to their sexual orientation, gender identity or because they have been victims of sexual assault.

“We are concerned that the new directive does not eliminate the use of extended solitary confinement, and that the reporting period exceeds the 15 days which the United Nations Special Rapporteur on Torture has observed can have detrimental and irreversible effects on individuals’ mental health,” McCarthy said. “We will continue to work with the administration and Congress to reduce the use of solitary confinement, and eliminate the use of extended solitary confinement.”

ICE released the directive following two national surveys of facilities’ use of solitary confinement over the past year. The first survey resulted from a 2012 investigation by NIJC and Physicians for Human Rights (PHR) which revealed that ICE detention facilities frequently misused solitary confinement against people held for civil immigration purposes, and that the federal government had no way of tracking it. NIJC and PHR’s report Invisible in Isolation found that facilities frequently used solitary confinement as an unnecessarily harsh punishment or against individuals who tried to assert their rights, and with alarming frequency as a form of “protective custody” for vulnerable people whose wellbeing the facility could not ensure in the general population. In May, The New York Times reported ICE’s survey findings that more than 300 people were held in solitary confinement in the immigration detention system every day.

In June, the U.S. Senate passed an immigration reform bill which included a provision introduced by Senator Richard Blumenthal (D-CT) to restrict the use of solitary confinement in immigration detention for particularly vulnerable populations. NIJC will continue to advocate for inclusion of legally enforceable protections in any immigration reform package that passes Congress.