Re: Pre-considered resolution urging the United States Department of Homeland Security to end the practice of placing immigrant detainees in solitary confinement, except in emergency situations

Dear Chairman Dromm:

We write to express our strong support for the Committee’s Pre-considered Resolution supporting abolishment of the use of solitary confinement in immigration detention in non-emergency situations.

The NYCLU is a not-for-profit, non-partisan organization with almost 50,000 supporters around the state, including nearly 26,000 in New York City. As the foremost defender of civil rights and civil liberties in New York State, we are deeply committed to reforming the inhumane practice of solitary confinement for all incarcerated or detained individuals in New York, whether they are held by Immigration and Customs Enforcement (ICE), in state prisons, in or city jails. Last year, the NYCLU released a report about the overuse of solitary confinement in New York, Boxed In: The True Cost of Extreme Isolation in New York’s Prisons. In the courts, we are currently challenging the constitutionality of New York State’s practice of arbitrarily sentencing tens of thousands of incarcerated individuals to months and years of solitary confinement for alleged infractions that often present no threat to prison safety.

Solitary confinement is the practice of placing a person in physical and social isolation for 22 to 24 hours a day with little or no human contact – generally in a small cell with a solid steel door, a bunk, a toilet and a sink. Studies published by the American Psychological Association and many others have shown that prolonged periods of solitary confinement can bring about disastrous and sometimes permanent mental and physical health effects. Detainees have experienced a wide-range of negative consequences after being held in isolation including: perceptual distortions and hallucinations, lack of impulse control, severe and chronic depression, weight loss, self-mutilation and lower levels of brain function.

As the Committee notes in its resolution, and as was recently reported in The New York Times and elsewhere, evidence of the excessive use of solitary confinement in civil immigration detention abounds. On any given day, more than 300 immigration detainees are held in solitary confinement; almost half are kept there for 15 days or more. According to the United Nations Special Rapporteur on torture, beyond 15 days, the conditions of solitary confinement create a significant risk of permanent psychological damage. As Senator John McCain attested in an April 2013 report by Physicians for Human Rights, “It’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.” And the use of solitary confinement in immigration facilities, on individuals who are being detained for no crime is even more troubling, Senator Charles E. Schumer and others have noted publically.

DHS and ICE Detention
The NYCLU wholeheartedly supports this resolution, which urges the Department of Homeland Security (DHS) to end the practice of placing immigrant detainees in solitary confinement, except for in emergency situations. Immigration and Customs Enforcement (ICE), the department within DHS responsible for immigration enforcement, recently issued a directive expanding due process protections for immigrant detainees being held in solitary. The resolution before the committee today calls on ICE to build on this positive step, eliminating the use of solitary confinement in all but emergency situations.

The new directive also takes important steps to impose substantive limits on the use of solitary confinement. For example, it now requires automatic review of all decisions to place detainees in solitary confinement for more than 14 days, including an evaluation of whether any less-restrictive option could be used. It requires heightened justifications in order to place vulnerable detainees – such as people with medical or mental illnesses, or people at risk of suicide – in solitary confinement. And it requires medically and mentally ill detainees to be removed from solitary confinement if their health is deteriorating. If enforced, ICE's new directive will enable the agency to more strictly oversee the use of solitary confinement across approximately 250 immigration detention facilities – the vast majority of which are county jails and private prisons that are not directly operated by ICE itself.

This spring, the NYCLU applauded the United States Senate for its passage of an amendment to its comprehensive immigration reform bill which included significant restrictions on the use of solitary confinement in immigration detention. Now part of the House of Representatives’ comprehensive immigration bill, this amendment establishes significant restrictions on when solitary confinement can be used against immigrant detainees: for example, it cannot be used for prisoners under eighteen years old, for those with significant mental illnesses, or for more than 15 days unless a less restrictive alternative is more likely to cause more harm.

But until Federal Comprehensive Immigration Reform is signed into law, this amendment has no practical effect. And although ICE’s directive is a major step forward, the best solution overall is to abolish the use of solitary confinement for immigration detainees except in emergency situations. Therefore, we strongly support the City Council’s resolution, and encourage ICE to embrace abolishment as its long-term goal. In the meantime, the NYCLU will continue to monitor the use of solitary confinement in immigrant detention centers throughout the state of New York, and we urge ICE to fully and consistently implement its new directive, beginning immediately.

Solitary Confinement in Prisons and Jails
While this resolution focuses on the injustice of subjecting civil detainees to solitary confinement, we hope it will draw needed attention to the broader issue of overuse of solitary confinement in New York's prisons and jails. New York holds far too many men and women in isolation: around 3,800 individuals languish in solitary Special Housing Units in prisons across the state every day. Here in New York City, 7.5% of the entire inmate population was in punitive segregation as of June 30, 2013.

This June, New York City's Board of Correction took a positive first step to reducing reliance on solitary when it voted unanimously to propose new rules for disciplinary segregation. The NYCLU urges the New York City Board of Correction to consider this resolution as a starting point for reforming, if not abolishing, the use of solitary confinement. Isolation should only ever be used as a last resort, for the briefest time necessary, and under the least restrictive conditions. New York must move away from the overuse of solitary confinement in both civil and criminal detention.

We appreciate your consideration of our views; we welcome the opportunity to work with you and the City Council to support the protection and expansion of human rights in New York City. If you have questions or comments, or would like to set up a meeting, please contact Rebecca Engel, Public Policy Counsel, at (212) 607-3376 or rengel@nyclu.org.

Sincerely,

Johanna E. Miller, Advocacy Director

Rebecca Engel, Public Policy Counsel

Nate Vogel, Legislative Counsel

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