Last week, the Department of Homeland Security’s Office of Inspector General (OIG) published a shocking report detailing the failure of ICE detention facilities and field offices to comply with rules governing the use of solitary confinement or segregation. The report also discusses ICE’s destruction of documents regarding its use of solitary confinement, which raises serious red flags considering the agency’s troubled history of transparency.
Solitary confinement refers to a form of confinement in which people are held in total or near-total isolation — generally 22 hours or more per day with virtually no human contact. The use of solitary confinement is exceedingly common in the U.S. immigration detention system: According to ICE’s own data, detained immigrants were placed in solitary confinement more than 14,000 times over four years from 2015 to 2019. This uptick occurred even after ICE adopted standards that should have restricted the use of solitary confinement. ICE uses two forms of segregation: administrative segregation, which is supposedly non-punitive, for purposes like protecting the detainee, and disciplinary segregation, which is a punitive form of segregation allowable only when a person has been found to have violated jail rules.
ICE policy recognizes that placing a person in solitary confinement is a “serious step that requires careful consideration of alternatives.” But what happens in lock up across ICE’s detention machine is another matter. An astonishing 72 percent of cases examined by OIG investigators showed that ICE and its contractors are throwing people into solitary confinement without first considering less-restrictive alternatives, like denial of access to the commissary or removal from group activities. Even more alarming, detention facilities failed to consider alternatives to solitary in two-thirds of cases involving individuals with special vulnerabilities, like members of the LGBTQ community and people who experience mental illness. For those individuals, ICE policy explicitly states that solitary confinement may be used only as a last resort.
ICE and its contractors’ abuse of solitary confinement, especially against those with mental illness, has led to record levels of death by suicide in recent years. Jean Jimenez-Joseph and Efrain De La Rosa took their own lives at ICE’s Stewart Detention Center in Lumpkin, Georgia. Both men had histories of severe schizophrenia and psychosis, which was known to ICE, but jail officials sent them to solitary confinement anyway.
The OIG report also found that ICE often failed to comply with its own segregation reporting requirements. According to ICE policy, whenever an individual with a special vulnerability is placed in solitary confinement, and whenever any other person has been placed there for 14 days, ICE is required to notify ICE headquarters of the development. But in over 1 in 10 cases the OIG examined, no report was filed with headquarters at all. One such case involved a person with schizophrenia who spent 30 days in segregation. Moreover, OIG found that in cases where ICE did report a solitary confinement placement, it often did so late. One person’s placement in solitary was not relayed to headquarters until 88 days into a 250-day segregation placement. This is no mere paperwork failure. As the report explains, “[d]elays in segregation reporting could impact ICE’s ability to mitigate possible misuse of segregation and prevent unnecessary, prolonged segregation placements.”
The OIG also uncovered ICE’s violations of document preservation rules. ICE was not able to provide OIG with nearly 10 percent of the detention files requested, because they had been unlawfully destroyed or were lost. Many files were destroyed months after ICE agreed to a litigation hold in connection with a case brought by good government groups and historians for the very purpose of stopping ICE from destroying such records.
Prolonged solitary confinement lasting longer than 15 days — as it very often does in immigration detention — constitutes torture, and is a violation of international standards outlined in the U.N.’s Nelson Mandela Rules. Shorter periods of solitary confinement, according to the U.N. Special Rapporteur on Torture, “can also amount to cruel, inhuman or degrading treatment or punishment where the physical conditions of prison regime … fail to respect the inherent dignity of the human person and cause severe mental and physical pain or suffering.”
This report is by no means the first time watchdogs have identified failures by ICE to adhere to solitary confinement policy. OIG itself previously found significant segregation placement reporting failures like the ones described in last week’s report. The DHS Office for Civil Rights and Civil Liberties sounded the alarm over abuse of the segregation policy at the Adelanto Correctional Facility in California. Similarly, nearly a decade ago, the National Immigrant Justice Center and Physicians for Human Rights, reported on ICE’s failure to enforce consistent solitary confinement standards in its detention facilities.
Abuse of solitary confinement in the U.S. immigration detention system has persisted despite years of oversight reports, investigations by state officials, Congressional hearings, proposed legislation sponsored by influential members of the Senate, lawsuits, and death.
At the beginning of the Biden administration, the ACLU called on DHS to follow through on Biden’s commitments during the campaign and ban the use of solitary confinement (whether for administrative, protective, or disciplinary reasons). We have not seen progress to date. At the very least, DHS Secretary Alejandro Mayorkas should respond to the OIG’s findings by placing an immediate moratorium on the use of solitary confinement and requiring a detailed, facility-by-facility review of solitary confinement practices. Congress should use its appropriations powers to prohibit the use of federal funds for solitary confinement. Moreover, Congress should aggressively question DHS and ICE officials about the agency’s unlawful destruction of records and its continued use of solitary confinement for prolonged periods.