Immigrants in Solitary

 

            This week, U.S. Immigration and Customs Enforcement (ICE) issued a new directive on the use of solitary confinement in immigration detention facilities. Carl Takie of the ACLU praises ICE for “creat[ing] a robust monitoring regime that will finally enable the agency to oversee the use of solitary confinement.” The directive “takes important steps to impose substantive limits on the use of solitary,” such as requiring centralized review of all placements in solitary for over 14 days.

            However positive a development, the directive does lay bare a bizarre contradiction in how the United States treats immigrants in detention facilities. The directive distinguishes between administrative segregation and disciplinary segregation. Administrative segregation is a “non-punitive form of separation” which facilities may only use to ensure the safety of detainees or staff, the protection of property, or the security or good order of the facility. Disciplinary segregation, alternatively, is “a punitive form of separation.” Using disciplinary segregation requires jumping through a series of procedural hurdles.

Every year, the United States holds several hundred thousand immigrants in immigration detention facilities, waiting to face deportation. As Dora Schriro, a former advisor for ICE, explains, “the facilities that ICE uses to detain aliens were built, and operate, as jails and prisons to confine pre-trial and sentenced felons. ICE relies primarily on correctional incarceration standards designed for pre-trial felons and on correctional principles of care, custody, and control.” Euphemistic names aside, immigrants are in prison.

Yet unlike normal inmates, immigrants are not in prison as punishment. The constitution doesn’t allow the state to punish someone without finding him or her guilty of a crime, a process that comes with numerous procedural protections—the right to a lawyer, to a jury, to confront witnesses. Instead, our law posits, when the state deports someone, it is merely exercising its prerogative to decide who and who is not allowed to remain within its borders, not punishing them. Therefore, if the state is waiting to determine if it should deport an immigrant, throwing her in prison to await the decision isn’t punishment either; it’s civil regulation. The Supreme Court has drawn the line between punishment and mere regulation by asking whether the practice in question is rationally related to a legitimate nonpunitive government purpose, and whether the practice is excessive for that purpose.

            To recap: The state can’t punish immigrants without a trial, but throwing them in prison without a trial isn’t punishment because it is rationally related to a legitimate purpose—determining who is allowed to stay in the country. ICE’s new regulations permit for “administrative segregation,” which lets facilities throw people in solitary to ensure their safety, the staff’s safety, other detainees’ safety, the protection of property (!), or good order. But even if none of those justifications apply, the state can jump through a few additional procedural hoops and still throw immigrants into “disciplinary segregation” to punish them. And this “punitive form of separation,” their words, lack any of the justifications for administrative segregation but still isn’t punishment.

The directive also states that any facility director must alert her Field Office Director if she holds a detainee in solitary for fourteen days, then again if she holds the detainee for thirty, then at every thirty-day interval thereafter. The United Nations’ Special Rapporteur on Torture Juan Mendez has argued that holding someone in solitary confinement in excess of 15 days should be subject to an absolute prohibition because it can function as torture. In the United States, it doesn’t even amount to punishment. And this, genuinely, is progress.