The immigration reform bill approved by the Senate Judiciary Committee last week includes an amendment that would curtail the use of solitary confinement on immigrant detainees. While the measure’s reach is limited, its passage by the Committee nonetheless represents a significant step for human rights activists working to help shape the Border Security, Economic Opportunity and Immigration Modernization Act, which will be debated by the full Senate in June.
The amendment, Blumenthal 2, was drafted by Senator Richard Blumenthal (D-CT). It sets limits on the use of solitary confinement for adults–in most cases, 15 days–and bans it for all children under 18 years old. The measure also explicitly prohibits the use of solitary confinement to “protect” detainees based on their sexual orientation or gender identity.
While the amendment does make it more difficult, it falls short of banning solitary confinement for detainees with mental illness. Detention centers that opt to isolate mentally ill individuals are required to have a medical professional visit with the immigrant at least three times each week as well as weekly visits by a mental health clinician for regular evaluations.
Lastly, the amendment has an oversight component so that detention facilities must submit both the reason for and the duration of all solitary confinement sentences to Congress annually for review.
The Senate’s attention to solitary confinement is relatively historic. Last June the first-ever congressional hearing, led by Richard Durbin (D-IL) was held to discuss the legal, economic and psychological costs of solitary confinement. While a host of local groups have cropped up to fight solitary confinement on the state level, Congress has largely avoided the issue.
The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations, sent a letter in support of Blumenthal 2 to Senator Patrick Leahy and Senator Charles Grassley, Chairman and Ranking Member of the Senate Judiciary Committee, respectively. The letter said, “The amendment balances the operational needs of facilities that hold immigration detainees with basic respect for the health and human rights of detainees subject to solitary confinement.”
The American Civil Liberties Union also gave vocal support to the passage of the amendment and said, “The adoption of the amendment takes positive steps forward in fixing a serious injustice the extent of which has only recently come to light.”
Due to increased enforcement measures put in place by the Obama administration, the immigration detention population has dramatically increased. There are 85 percent more immigrants detained today than there were in 2005, and these detentions are usually indefinite sentences. Individuals are held, often for months at a time, until either they voluntarily sign deportation documents or until immigration authorities decide whether to deport the immigrants or let them stay.
Observers argue that while placing U.S. prisoners in solitary confinement is problematic, placing alledgedly undocumented immigrants in solitary confinement is even worse because these individuals are not even serving criminal sentences, but are simply waiting for civil deportation hearings. Beyond that, critics argue that solitary confinement hurts detainees’ ability to fight their cases due to highly restricted access to telephones and other means of communication.
In March, Homeland Security Secretary, Janet Napolitano said that she believes “solitary confinement should be the exception, not the rule.” She asked federal immigration officials to report back with greater detail about the usage and implementation of solitary confinement in federal facilities.
A March 2013 article by the New York Times and The Investigative Reporting Workshop found that on any given day, U.S. Immigration and Custom Enforcement (ICE) officials hold approximately 300 immigrants in solitary confinement at the 50 largest detention facilities across the country. Their research showed that nearly 50 percent of these individuals are kept in solitary confinement for 15 days or more–a point that psychiatric experts say detainees are at risk for severe mental harm. The study found that about 35 detainees are kept for more than 75 days.
Senator Charles E. Schumer, Chairman of the Senate Judiciary’s subcommittee on immigration, responded to the report by sending a letter to John Morton, director of ICE urging him to change their use of solitary confinement. “This report suggests an overreliance by the ICE on the harshest forms of incarceration,” Schumer wrote.
In 2012, the Heartland Alliance’s National Immigrant Justice Center and Physicians for Human Rights, surveyed conditions in many detention centers and county jails that work in conjunction with the ICE. This was the first comprehensive study on the effects of solitary confinement on immigration detainees. The research showed that solitary confinement is often arbitrarily and punitively applied, inadequately monitored and damaging to detainees’ health; investigators also found that most immigrants are denied any meaningful avenues of appeal. Additionally, they found that ICE failed to hold detention centers and jails accountable for their use and abuse of solitary confinement.
Blumenthal 2 would be first federal legislation to place limitations on the duration and circumstances under which detained immigrants can be placed in solitary confinement. It is unclear at this point whether the amendment will pass the full Senate or the House.
The measure would apply only to those held in immigrant detention, and not to all federal prisoners. The U.S. Bureau of Prisons is estimated to hold at least 10,000 individuals in isolation in prisons across the country, and is not subject to any laws that that regulate, monitor, and restrict the use and abuse of solitary confinement in federal prisons.