Students Collaborate on Report to UN Committee Condemning Use of Solitary Confinement

Current U.S. practices regarding the use of solitary confinement of immigrants held in detention centers violates international law, according to a report prepared in part by students working at The John Marshall Law School Human Rights Project.

The report was filed with the United Nations Human Rights Committee of the Office of the High Commissioner for Human Rights in Geneva. It also said the practice of solitary confinement violates U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR). The report is presented jointly by The John Marshall Law School Human Rights Project, the National Immigrant Justice Center of Heartland Alliance for Human Rights and Human Needs and the International Committee of the National Lawyers Guild. It is one of several reports being filed with the UN in relation to the United States’ 4th Periodic Report as the country marks Sept. 23, 2013, the National Day of Action for human rights recognition.

“The global importance placed on human dignity should impose a higher burden of care on states to protect immigrant detainees’ rights to humane treatment, especially in situations where that right is vulnerable, to preserve their human dignity,” the report states.

The report submitted to the UN offers seven specific recommendations for improved treatment of immigrant detainees in the U.S., including the use of solitary confinement as a last resort; a ban on solitary confinement for specific groups; third-party assessments of treatment and strict enforcement of monitoring provisions of Immigration and Customs Enforcement (ICE) directives on the use of solitary; and a creation of a reporting mechanism on the use of solitary confinement presented to Congress and made available to the public.

Most immigrant detainees are not facing criminal trials or serving prison sentences, but rather are involved in civil removal proceedings or in the process of waiting for their asylum claims to be decided by an immigration judge.

According to the report “…detainees are held as prisoners behind towering walls that are lined with razor wire. They are restricted in their movements within the detention facility and have little contact with families.”

John Marshall’s Human Rights Project students examined the issue of solitary confinement which they argue violates immigrant detainees’ rights to due process and judicial remedies, right to humane treatment and the right to personal liberty. Their research found that solitary confinement is a common practice that prevents detainees from having access to judicial remedies; that detainees are subjected to physical and mental punishment; are virtually indistinguishable from criminally convicted persons in the same facilities; and their vulnerabilities or disabilities are not afforded the appropriate protections. This segregation violates the minimum standards of the right to humane treatment and the right to personal liberty.

The report recommends the UN Human Rights Committee urge the U.S. to enforce a new ICE directive that says solitary confinement should only be used as a last resort. The directive states that detainees not be held in solitary for more than 14 days in a 30-day period, and that the U.S. should prohibit solitary based on age, gender identity, sexual orientation, and other qualifiers. Guards and detention center staff have been ignoring previous policies and regulations, according to the report. Recent studies have found serious repercussions and mental illness among those held in solitary for an extended period of time and such confinement qualifies as inhumane treatment.

“ICE’s reliance on correctional incarceration standards that impose unnecessary restrictions on immigrant detainees violates the fundamental right to personal liberty,” the John Marshall report argues. The report said when detainees argue about their treatment, they often face more mistreatment. Attorneys are not automatically provided for those held after immigrant raids, and most cannot afford an attorney.

“The concept of human dignity is neither disposable nor dependent on a person’s status. Every individual is afforded the inherent and inalienable right to be valued and receive ethical treatment,” the report states. “An immigrant detainee is therefore automatically deprived of his human dignity when he is subjected to inhuman treatment or punishment.”

Work on this project was under the direction of Professor Steven Schwinn and Professor Sarah Davila-Ruhaak.