The Capricious Use of Solitary Confinement Against Detained Immigrants
FOIA documents and a whistle-blower uncover how the Obama and Trump administrations used solitary in ways that critics say are arbitrary, cruel, and in violation of federal rules.
Contraband sugar packets, calling a border guard a “redneck,” menstruating on a prison uniform, kissing another detainee, identifying as gay, requesting an ankle brace—these are just some of the reasons Immigration and Customs Enforcement officials have placed detained immigrants in solitary confinement.
ICE and Department of Homeland Security documents obtained by The Atlantic provide one of the clearest snapshots to date of what immigrant-rights advocates say is the agency’s excessive, arbitrary, and punitive use of this form of isolation. Spanning from 2014 through 2018, the documents—which include tens of thousands of pages of internal emails, facility-inspection reports, summary reports on detainee conditions, written complaints filed by immigrants and their lawyers, and statistics on the general detainee population—also offer a rare accounting of the number of immigrants held in solitary confinement.
The documents demonstrate that both the Obama and Trump administrations used solitary confinement extensively and that both administrations struggled to adequately track when and why people were being isolated. The data also indicate that while the number of immigrants in solitary confinement has grown in proportion to the detainee population, the Trump administration in its first year was more likely to cite mental illness and hunger strikes as reasons for sending immigrants to solitary confinement than the Obama administration was in its final year in office.
Trump’s immigration authorities were also far more likely than their predecessors in the Obama administration to cite reasons such as “suicide risk” or “protective custody for LGBT people” as justification for sending immigrant detainees to solitary confinement. Under Trump, one out of every 200 detainees has spent at least two weeks in isolation, according to the documents.
The documents used in this investigation were obtained through a half-dozen open-records requests filed separately over the past four years by The Atlantic, The New York Times, the Project on Government Oversight, the American Civil Liberties Union, and the National Immigration Justice Center. After more than a year, ICE fulfilled some of my records requests by providing thousands of pages of heavily redacted files. The agency erred, however, in its effort to conceal electronically much of the information in these records: Blacked-out portions had been digitally misformatted, making the redaction easily reversible, which in hundreds of cases revealed which detainees were being held for extended periods in solitary, as well as where and why.
Additional materials were provided to me by a whistle-blower lawyer named Ellen Gallagher, who contacted me in 2015 in response to an investigation I had co-produced for The New York Times about immigrants being put in solitary confinement. Gallagher, who has worked for more than two decades as a civil servant in the federal government on immigration and prison issues, including in the Obama and Trump administrations, said she was ready to become a whistle-blower because she was alarmed at how, despite talk of reform, severe problems persisted in how the United States was using solitary confinement. Gallagher, who also told her story to reporters with the International Consortium of Investigative Journalists, now works at Homeland Security’s Office of Inspector General as a director in the Office of Integrity and Quality Oversight.
The records obtained do not capture all cases when solitary was used, just those that triggered reporting requirements, which is supposed to happen within a few days of placement for people considered part of a vulnerable population, such as those with diagnosed mental-health conditions, or at 14 days for the general population.
From 2016 to early 2018, about 40 percent of the cases of people being placed in solitary confinement by ICE involved immigrants with mental illnesses—even though the agency’s own doctors and lawyers warn that such treatment severely worsens these illnesses.
Medical experts say that the use of solitary confinement is especially dangerous for vulnerable populations such as the mentally ill. Human-rights lawyers add that the use of the practice by ICE is particularly egregious because immigrant detainees are most often being held on civil, not criminal, charges. Consequently, they are not supposed to be punished, merely confined in order to ensure that they appear for administrative hearings.
ICE officials counter that solitary confinement is used selectively, to safeguard the most vulnerable detainees by removing them from the general population and to manage unruly detainees who might harm guards or other immigrants.
The records also indicate that hundreds of immigrants were sent to solitary confinement for medical reasons ranging from tuberculosis to HIV to broken legs or sprained ankles requiring the use of braces, crutches, or other devices that authorities view as security threats. Many solitary-confinement placements were made at “detainee request,” but what prompted those requests is not clear.
While declining to answer specific questions about the use of solitary confinement among mentally ill detainees, Bryan Cox, a spokesman for ICE, told me that “any suggestion that the use of segregation in ICE custody is above the norm for detained populations would be a false claim.” He added that ICE is fully compliant with the 2013 federal directive that dictates how segregation should be used by the agency.
However, a scathing and confidential report sent to ICE in April 2018 from Homeland Security’s Office of Civil Rights and Civil Liberties stated the opposite. The report, provided to The Atlantic last week by the Project on Government Oversight, which obtained it through a open-records lawsuit, focused on the Adelanto Detention Center in California and described the use of solitary confinement at the facility as “both inhumane and in violation of [the] ICE Directive.”
The 2013 directive said that mentally ill and other vulnerable detainees should only ever be put in solitary confinement as a “last resort.” Citing four detainees in the Adelanto facility who had spent 370 to 904 days in solitary confinement, the report said that “detainees with serious mental health disorders are routinely - and inappropriately - housed in administrative segregation.” Cox said his agency disagreed with much of that report, and he provided the results of an inspection by an outside group that found the facility in compliance with the federal directive.
Saying exactly how many immigrants in total are being put in solitary confinement every year is difficult because the federal data do not count those held for less than 15 days. But according to the most recent publicly available numbers, about 200 immigrants are held in solitary on a typical day.
The harm done by solitary confinement is worse the longer it lasts, medical experts say. Prolonged isolation—typically defined as lasting 15 days or more—of this sort is widely viewed as a form of torture and may amount to treatment prohibited under the International Covenant on Civil and Political Rights, especially when imposed on mentally ill people. The United States has insulated itself, however, from any official sanctions for international violations by not submitting to the jurisdiction of the governing bodies that enforce these terms.
The records reveal that dozens of detainees have been held in solitary for hundreds of days over the past four years, including one man who was held for more than 780 days. Under Trump, the number of solitary confinements lasting longer than 30 days has risen by 8 percent over the Obama years. Civil-rights lawyers say that it is illegal for detention officials to subject people to prolonged solitary confinement for behavior that results from mental illnesses that those very officials diagnosed.
As the number of detainees has increased, so too has the severity of their treatment during detention. “Things have gotten far worse,” Altaf Saadi told me. A neurologist, Saadi has been conducting evaluations at immigrant-detention centers over the past several years, including among detainees placed in solitary confinement. She explained that under the Obama administration, there was more prosecutorial discretion; people with mental or physical disabilities, as well as pregnant women and LGBTQ people, were typically not put in detention. Under Trump, that discretion was removed.
Obama officials put at least 27 people in solitary confinement for hunger striking in 2016; that number rose under Trump in 2017 to 54, according to records obtained by The Atlantic. Immigrant advocates say that putting hunger strikers in solitary is a form of retaliation that violates detainees’ basic human right to decide whether to eat. Detention-facility operators deny using solitary confinement as a means of punishment for hunger strikers.
In exit interviews and case materials, immigrants described varying reasons for being sent to solitary, including disciplinary infractions such as destroying property or getting into fights with other detainees or guards. In many instances, however, the records cite seemingly capricious reasons for the use of solitary—hiding a banana under a mattress, an untidy cell, complaining about the food. (Roughly half of the instances of solitary confinement during Obama’s final year in office and during Trump’s first were for disciplinary reasons.)
The use of isolation for minor offenses was a source of intense frustration from some lawyers within the Obama administration, the documents show. “Detainee #54 received 14 days disciplinary segregation for failure to follow the meal procedure, #65 received 14 days for asking to pay an officer to buy him cigarettes, #97 received 30 days for ‘making perceived threats’ because he asked an officer for his address,” Gallagher, who at the time was a senior policy adviser in Homeland Security’s Office for Civil Rights and Civil Liberties, wrote in an email to her colleagues on May 8, 2014. “To me, this is mind-numbing.”
One revealing record obtained by The Atlantic describes the case of an unnamed woman detained at the Otay Mesa Detention Center, in California, in the summer of 2017. (Neither Otay nor ICE answered questions about this case.) ICE doctors who carried out blood work when she was first detained informed her while she was in solitary confinement—for reasons that the records do not indicate—that she was pregnant, according to a summary complaint filed by the woman’s lawyer with the Office for Civil Rights and Civil Liberties. Once the woman was released into the general population, she experienced acute anxiety and took pills in an apparent suicide attempt, which staff at the hospital to which she was subsequently sent say caused a miscarriage. The woman was then returned to solitary confinement, where she was kept naked, despite still bleeding from the miscarriage.
The records provide no further indication of what eventually happened to the woman.