Excerpted From: Felipe De Jesús Hernández, Extrajudicial Segregation: Challenging Solitary Confinement in Immigration Prisons, 137 Harvard Law Review Forum 175 (February, 2024) (231 Footnotes) (Full Document)

FelipeDeJesúsHernándezPitch black darkness. Screams of neighbors in pain. Excluded from everything: your family, neighbors, and vital medical help. Thrown in the hole because you spoke Spanish, left “juice” in your cell, a guard was upset at you, you are gay or transgender, you have a preexisting medical or mental health condition, you do not want to work for $1 a day, you are fasting during Ramadan, you are on a hunger strike to protest prison conditions, or you ask for help with a medical or legal issue. Days feel like months, months feel like years, and years feel like an eternity when you are in an elevator-sized cell fully enclosed by cold concrete walls.

In 2015, the United Nations recognized that solitary confinement--the caging of people in isolation for twenty-two to twenty-four hours a day in a cell-- beyond fifteen consecutive days is cruel, inhumane, and degrading treatment amounting to torture. During prolonged periods in isolation, people may be subjected to horrors such as sensory and sleep deprivation, physical restraints, restrictions on religious practice, chemical attacks, and sexual assault. Voluminous research studies consistently show that solitary permanently harms a person's psychological and physical health. Compared to the general nonincarcerated population, rates of self-harm and suicide are seven and five times higher, respectively, among those in solitary.

The United States leads the world in the use of long-term solitary confinement impacting LGBTQ individuals, women, immigrants, people of color, and people with disabilities and mental illnesses. Prior to the COVID-19 pandemic, there were approximately 60,000 people nationally in solitary confinement. However, after March 2020, there was a 400% increase to more than 300,000 people in solitary. One study estimated that, in 2021, over 60% of men and over 40% of women in solitary confinement were nonwhite. Though designed to sanction the most violent behavior, solitary is a common punishment for trivial infractions. At the whim of prison staff, incarcerated persons are denied human contact, educational and legal resources, and medical treatment.

Solitary confinement has increasingly been used on immigrants in immigration prisons during admission and removal proceedings. According to data from U.S. Immigration and Customs Enforcement (ICE), in fiscal year 2023, people spent an average of twenty consecutive days and over thirty-eight cumulative days in solitary confinement (both administrative and disciplinary). Recall that, according to the U.N., placing a person in solitary for more than fifteen consecutive days amounts to torture. According to the Department of Homeland Security's Office of Inspector General (OIG), between fiscal years 2015 and 2019, there were a total of 13,784 immigrants placed in segregation, the term ICE uses for solitary confinement. The report determined that for 72% of segregation placements, ICE did not “maintain evidence showing it considered alternatives to segregation.” The report also highlighted how solitary confinement worsened mental and physical health conditions, causing depression, post-traumatic stress disorder, and increased risk of self-harm and suicide. In a subsequent report, the U.S. Government Accountability Office (GAO) reported that, from fiscal years 2017 to 2021, there were 14,581 segregated housing placements in immigration prisons. While 41% of these placements were for disciplinary reasons, about 60% were for administrative reasons for individuals with special vulnerabilities. During the COVID-19 pandemic, and between March 2020 to January 2022, the rate of immigrants placed in solitary confinement skyrocketed with the majority being for administrative and medical reasons.

This problem is only bound to get worse. In 2022, global human displacement reached an all-time high of 108.4 million people as a result of famine, war and violence, poverty, and climate change. That year, 2.76 million people arrived at the U.S. borders, mostly from Latin American countries. While news media often portrays immigrants as “illegal[s]” threatening society, the reality is that displaced people seek a better life from the ravages of colonialism, racial capitalism, military imperialism, climate change, and poverty. And as more people are displaced, more will seek refuge in the United States (as an expression of self-determination and decolonization and more will likely be incarcerated and confined in solitary. Therefore, it is critical that we, lawyers and scholars, join with organizers and people who are grappling with the implications of solitary confinement in immigration prisons.

This Essay first traces the evolution of immigration prisons leading to the contemporary use of solitary confinement. Second, the Essay examines how solitary confinement in immigration prisons is an extrajudicial segregation condoned and designed by courts and congressional plenary power. Third, the Essay examines the limited pathways that the U.S. government offers to advocates and lawyers to curtail the use of solitary confinement in immigration prisons. The Essay concludes by exploring harm-reduction legislative options and by advocating for abolishing solitary confinement entirely.

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The United States has created an extrajudicial realm of law emblematic of the segregated and tiered citizen system that is rooted in the border logic of exclusion, separation, and domination of racialized and marginalized populations. This Essay has shown how solitary confinement in immigration prisons is an extrajudicial segregation that is tolerated and maintained by all three branches of government. As solitary confinement is increasingly being used on immigrants in civil detention, legal advocates are struggling to reduce the scope and impact of solitary on migrants because of the limited pathways that our legal and political systems offer. This Essay argues that the U.S. settler-colonial system has a vested interest in limiting the legal and political relief available to noncitizens because our nation's sovereignty is premised on violence and exclusion. To be sure, the legal system offers some material benefits to individuals, and in some cases, classes of incarcerated people, but the convoluted maze of law cannot dismantle institutions, practices, and social outcomes that are deeply rooted in this nation's settler-colonial foundation. Indeed, many scholars are recognizing how the Constitution and legal system maintain the permanence of settler colonialism. The legal system conditions us to believe that “legal reform [is] the ultimate horizon of sociopolitical transformation,” but this also “violently circumscrib [es] the scope, depth, and shape of transformation to which we might aspire.” Moreover, an international lens is critical as solitary confinement is also used by other state regimes globally.

Ultimately, and as social movements and survivors of solitary confinement have called for, the path forward is complete abolition of solitary confinement across all contexts because it serves no legitimate purpose and, rather, inflicts harm on incarcerated people and their loved ones. Abolition, as a praxis requiring action, focuses on reorganizing how we live our lives in the world by centering those whose lives are most marginalized and reducing the conditions that cause harm at all levels in society. Abolitionists, like myself, understand that a better world centered on values of liberation, justice, equity, compassion, and peace is achievable and begins by naming and undoing the logics (and beliefs), structures, and relations of domination, difference, suffering, and exploitation wherever they exist in our world-- particularly in the U.S. carceral and immigration systems. But, because the powers that be are staunchly invested in maintaining and expanding an oppressive world order, our struggle continues. Abolition, thus, calls on us to dismantle the social, political, and economic relations and structures, rooted in logics of settler-colonial imperial domination, that create the conditions of oppression of minoritized groups--like globally displaced people. As demonstrated above, the use of solitary confinement in immigration prisons is an extension, and only one piece, of the violence that our nation inflicts on people seeking refuge and a better way of life. Though the use of solitary in immigration prisons will likely increase, leading to more needless harm, lawyers, scholars, and activists are continuing to fight for transformative justice for we know that another world is possible. It is our responsibility to dismantle the interconnected web of oppression while fighting for liberation across society and organizing for what we need to have a better world in our lifetime. This includes, for example, eliminating borders, immigration prisons and police, citizenship, and the global conditions causing forced displacement, while also organizing for a global freedom of movement and a large-scale redistribution of resources. Thus, abolishing solitary in immigration prisons is a step toward abolishing the settler-colonial border logics of exclusion, domination, and premature death that create extrajudicial segregation.

Lawyer, musician, and writer based in Los Ángeles; Harvard Law Review Fellow, 2022-2023, MacArthur Justice Center's Supreme Court & Appellate Program (SCAP); Harvard Law School, J.D., 2020; University of Oxford, M.Sc., 2017; University of Bristol, M.Sc., 2016; University of California, Irvine, B.A. & B.Mus., 2013.