The United States' Convention Against Torture Ruds: Allowing the Use of Solitary Confinement in Lieu of Mental Health Treatment in U.s. Immigration Detention Centers

• Jurisdiction: United States,Federal
• Citation: Vol. 33 No. 2
• Publication year: 2019
• topic: Immigration Law,Criminal Law

The United States' Convention against Torture RUDs: Allowing the Use of Solitary Confinement in Lieu of Mental Health Treatment in U.S. Immigration Detention Centers

Erika Voreh

THE UNITED STATES' CONVENTION AGAINST TORTURE RUDS: ALLOWING THE USE OF SOLITARY CONFINEMENT IN LIEU OF MENTAL HEALTH TREATMENT IN U.S. IMMIGRATION DETENTION CENTERS

Abstract

Currently in civil immigration detention centers around the United States, the practice of placing detained immigrants who are mentally ill is allowed by U.S. Immigration and Customs Enforcement (ICE). In some detention centers, placement into solitary confinement is now the main form of psychological "treatment" for mental health concerns. Some facilities even place detainees under suicide watch into solitary confinement. In one tragic case, this "treatment" resulted in a detainee's suicide. The practice also creates a general atmosphere of fear and resistance to disclose mental health concerns.

Solitary confinement can have negative psychological effects especially for individuals with mental illness. Other international bodies, including the European Court of Human Rights, have acknowledged the harmful effects of solitary confinement. This Comment focuses on decisions by the European Court of Human Rights as to what constitutes torture. This Comment argues that placing detained immigrants who are mentally ill into solitary confinement constitutes torture, however, because the U.S.'s interpretation of torture is much narrower than other international bodies there is still a long journey to achieve the prohibition of this shameful practice in the United States.

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Introduction

On May 15, 2017 at Stewart Detention Center, Jean Jimenez-Joseph, a 27-year-old Panamanian national, committed suicide after nineteen days in solitary confinement.¹ Jimenez-Joseph was under suicide watch when he was placed in solitary confinement; he also had a history of mental illness including schizophrenia and multiple suicide attempts.² U.S. Immigration and Customs Enforcement (ICE) allows for this type of treatment; under ICE guidelines, it is permissible to place a suicidal detainee or a detainee with a history of mental illness in solitary confinement.³

Jimenez-Joseph's tragic situation demands the question: Should detained immigrants who are mentally ill be placed into solitary confinement? This practice currently takes place in civil immigration detention centers around the United States. Instead of receiving appropriate and adequate mental health care, detained immigrants who are mentally ill are being placed in solitary confinement as "treatment."⁴ The practice is so commonly recognized by the detained immigrant population that many hesitate and even refuse to disclose details about their mental health problems for fear of being placed into solitary confinement.⁵ Even more startling is the increase of the civilly-detained immigrant population in the United States. The average number of daily detained immigrants has steadily increased for decades: from approximately 5,000 a day in 1994 to over 34,000 in 2014.⁶ With the number of immigrant detainees rising, it increases the risk of these individuals who are suffering from mental illness or suicidal thoughts to be subject to this "treatment."

The United States' practice of placing mentally ill detained immigrants into solitary confinement violates both domestic and international law. Section I provides a brief overview of immigration detention in the United States and the negative effects of solitary confinement. Section II discusses international law regarding the prohibition on torture and international law interpretation of what

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constitutes torture. This Comment focuses on decisions held by the European Court of Human Rights (ECtHR) to determine what treatment constitutes torture. Section II concludes by determining that the practice of placing detained immigrants who are mentally ill into solitary confinement constitutes torture. Section III examines the how the U.S. interpretation of torture and cruel, inhuman, or degrading treatment is much narrower than how international bodies have interpreted such forms of mistreatment.

I. Immigration Law and Solitary Confinement in the United States

Immigration detention is defined as "the practice of incarcerating immigrants while they await a determination of their immigration status or potential deportation."⁷ Immigration detention includes documented and undocumented immigrants.⁸ Detained immigrants in the U.S. are civilly detained as opposed to being criminally incarcerated.⁹ The purpose of civil detention is to guarantee that an individual attends at his/her immigrations hearings and complies with immigration orders.¹⁰ Civil detention is not meant to punish or incapacitate such individual for a criminal offense.¹¹

The United States operates the world's largest immigration detention system.¹² The U.S. immigration detention system includes operating over 200 detention facilities¹³ and detains between 380,000 to 442,000 immigrants annually.¹⁴ ICE is the U.S. agency in charge of immigration detention.¹⁵ However, ICE subcontracts a majority of its detention responsibilities to private prison companies and county jails.¹⁶ Private prison companies operate the majority—sixty-two percent—of immigration detention facilities.¹⁷ Private prison companies GEO Group and CoreCivic (formerly known as Corrections

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Corporation of America),¹⁸ jointly detain approximately 15,000 immigrants daily.¹⁹ Besides subcontracting to private companies, ICE also depends on other types of facilities, such as local jails, juvenile detention centers, field offices, and "family residential centers" for for detention purposes.²⁰

Among these different detention facilities, there are three main ICE contract types: (1) contract detention facilities (CDFs), (2) service processing centers (SPCs), and (3) intergovernmental service agreements (IGSAs).²¹ CDFs are defined as facilities "owned and operated by private corporations that contract directly with ICE."²² SPCs are owned and operated by ICE, however many of the services within SPCs are fulfilled by various contractors.²³ IGSAs are owned and operated by local governmental bodies, such as county and city governments.²⁴ ICE also follows a policy known as the detention bed quota.²⁵ This is a congressionally mandated policy that requires ICE to maintain 34,000 beds in detention facilities on a daily basis.²⁶ No other law enforcement agency maintains a similar quota system.²⁷ Another alarming trend concerning ICE detention facilities is that an estimated 155 people have died in ICE custody since 2003.²⁸ One potential reason for such a troubling statistic is that there is no independent oversight of the immigration detention system.²⁹ ICE states that detention facilities follow Performance-Based National Detention Standards (PBNDS).³⁰ These standards, however, are not legally enforceable.³¹

A. Historical Background of Immigration Detention

The historical background of the immigration policy helps explain the

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increased rate of immigration detention. Prior to the 1980s, the United States detained approximately thirty immigrants daily.³² In the late 1980s, Congress amended the Immigration and Naturalization Act to require the mandatory detention of immigrants with qualifying criminal convictions.³³ This created a category of immigrants whose detention had now become automatic and compulsory; no discretion could be used to provide these immigrants alternative forums, such as bond, while they awaited their immigration proceedings.³⁴ In the 1980s, the former Immigration and Naturalization Service (INS) began outsourcing immigration detention services to private companies like CoreCivic.³⁵ In the 1990s, detention then became the primary form of immigration enforcement.³⁶ Other congressional acts in the 1990s, such as the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), expanded mandatory detention.³⁷ After the passage of AEDPA and IIRIRA, the daily detained immigrant population in 1996 of 8,500 increased to 16,000 by 1998.³⁸ The government agency formerly in charge of immigration detention, INS, was split into multiple agencies after the September 11, 2001 terror attacks. These newly formed agencies, including ICE,³⁹ were also moved from the Department of Justice and into the Department of Homeland Security.⁴⁰ This departmental move frames immigration issues as national security concerns.⁴¹ Finally, under the Obama administration's second term, there was a resurgence of utilizing family immigration detention centers.⁴²

B. Effects of Solitary Confinement

Solitary confinement is defined as "the physical isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day."⁴³ The term "segregation" can be used interchangeably.⁴⁴ The typical layout of a solitary

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confinement cell is a six-by-eight-foot area that contains only a bed, sink, and toilet.⁴⁵

Solitary confinement can have negative psychological effects even on those without a history of mental illness.⁴⁶ Possible negative psychological effects include anxiety, depression, anger, cognitive disturbances, perceptual distortions, obsessive thoughts, paranoia, and psychosis.⁴⁷ These negative psychological effects can be worse for individuals suffering from mental illness. Symptoms of mental illness can be exacerbated by factors inherent to solitary confinement such as a lack of social interaction, stress, and inability to keep time of day.⁴⁸

There are multiple problematic outcomes for individuals with a mental illness in solitary confinement. These include: suicide, deterioration of sanity (which can result in emergency medical or psychiatric hospitalization), and persistence of the mental illness without improvement.⁴⁹ In prisons, suicide happens more often in...