‘It’s time to end the barbaric practice of solitary confinement in immigration detention’

Via The Hill
By Sabrineh Ardalan, Philip L. Torrey and Arevik Avedian

Across the country, the Biden administration is holding hundreds of immigrants in solitary confinement. With the president’s calls for the “toughest” border crackdown in U.S. history, these numbers are likely to rise.  

This inhumane practice must end. 

The harmful effects of solitary confinement — including increased risk of suicide and mental illness — are well known. Indeed, Biden himself promised on the campaign trail that he would end the practice. U.S. government directives mandate the use of solitary confinement only as a last resort in immigration detention, particularly for transgender immigrants and immigrants with mental health and medical conditions.  

But a recently released report reveals that the government has failed to abide by its own directives, often subjecting these vulnerable immigrants to solitary confinement for months — and in some cases, even years at a time.  

What does solitary confinement in immigration detention look like?  

Immigrants in solitary confinement are isolated in small cells without any human contact, often for 22 hours per day. In some cases, it means no access at all to phone calls or visits or recreation for the duration of isolation. For one individual with severe mental illness and medical conditions, solitary confinement resulted in hallucinations, panic attacks and psychotic symptoms suffered in isolation for over a week, until he was placed on suicide watch.  

Despite repeated concerns raised by at least one whistleblower and multiple government auditors, solitary confinement continues to be misused and overused in immigration detention. In fact, during the past five years, Immigration and Customs Enforcement (ICE) and its contractors placed immigrants in solitary confinement over 14,000 times in approximately 125 immigration detention facilities across the United States.  

As the report, co-authored by faculty and staff at Harvard Law School, Harvard Medical School, and Physicians for Human Rights, describes, these placements in solitary confinement lasted almost a month on average. Some periods of solitary confinement last two years or more. Yet, under international standards, even 15 days in solitary confinement rises to the level of torture. 

Alarmingly, the number of immigrants subjected to this inhumane treatment, along with the length of time they are held in solitary confinement, has increased in recent years. For example, the number of transgender immigrants placed in solitary confinement more than doubled in the third quarter of fiscal year 2023, compared to the previous quarter. The length of time LGBTQ immigrants are held in solitary confinement is particularly troubling, with placements lasting almost two months on average and in some cases over nine months at a time.  

According to data we collected through Freedom of Information Act (FOIA) requests, over 40 percent of immigrants placed in solitary confinement over the past five years had documented mental health concerns. And the actual numbers are likely to be much higher. As one recent independent government investigation revealed, and our report confirms, ICE has significantly underreported the number of individuals in solitary confinement with a vulnerability, such as a mental health condition.  

Discovering the extent of ICE’s use of solitary confinement took the better part of a decade, including six years of FOIA requests and a lawsuit for ICE to lay bare this shocking data.  

The use of prolonged solitary confinement and solitary confinement of immigrants with mental health conditions violates fundamental rights under the Fifth Amendment of the U.S. Constitution. It also rises to the level of torture under international standards, known as the Mandela rules. The United Nations special rapporteur on torture has called for a ban on solitary confinement of more than 15 days. In short, there is widespread agreement that prolonged solitary confinement can amount to torture. 

So why does the government keep using solitary confinement?  

Immigrants, including LGBTQ immigrants and those with mental illnesses, are often placed in solitary confinement under the false premise that it is a protective measure, used to keep them safe. But that reasoning flies in the face of medical research that documents the debilitating consequences of solitary confinement on physical and mental health. Additionally, solitary confinement in civil immigration detention, which is — at least in theory — supposed to be non-carceral and non-punitive in nature, must stop being used as a tool to discipline immigrants for minor infractions. 

Immigrants, especially those with medical and mental health conditions and other vulnerabilities, should be immediately released from solitary confinement. A number of states have banned the use of solitary confinement for certain vulnerable populations and moved to curtail its use more generally. President Biden must follow suit. 

To the extent that the barbaric practice continues, increased transparency and safeguards to protect mental and physical health are critical. These include comprehensive screenings to prevent the use of solitary confinement in cases where immigrants have medical and mental health conditions and to rigorously monitor its effects on health when it is used.  

The Biden administration took office with a promise to stop the use of solitary confinement — the time to act is now. 

Sabrineh Ardalan is clinical professor of law and director of the Harvard Immigration and Refugee Clinical Program; Philip L. Torrey is assistant clinical professor of law and director of the law school’s Crimmigration Clinic; and Arevik Avedian is lecturer on law and director of Empirical Research Services at Harvard Law School.