The Hole

Mendez says solitary 'can be cruel'

Sunday, March 24th, 2013 



Juan Mendez

Forced labor of political dissidents in North Korea. Stoning of an unwed couple in Mali. Assault on journalists in Azerbaijan. Juan Mendez, the U.N.'s special rapporteur on torture, fields hundreds of human rights complaints from across the world every year.

He writes reports and engages governments, hoping to bring light to the cases and spur action. In many cases, he is the victims’ only hope to bring worldwide attention to their plight. Mendez does much of his U.N. work, which is all volunteer, from his office at American University, where he is a visiting professor at the Washington College of Law. This month, he released a report partially focused on human rights abuses in the United States and the inadequate response by the government to address concerns about solitary confinement in immigration detention.

“In my mind, the United States is in breach of its obligations under the torture convention,” Mendez said in an interview. “It [solitary in immigration detention] can, in certain circumstances, constitute cruel and inhumane, degrading treatment, and under worst circumstances, it can constitute torture, because it produces a kind of mental pain and suffering.”

On any given day, about 300 individuals are held in “segregation,” as the U.S. Immigration and Customs Enforcement agency terms it, in facilities that hold 85 percent of the nation’s detained immigrants, according to recent data from the government obtained by the National Immigrant Justice Center (NIJC), an immigrant legal and advocate organization based in Chicago, and the Investigative Reporting Workshop.

Most of them are isolated for disciplinary purposes, according to ICE officials, for such things as getting into a fight or breaking jail rules, but they may also be segregated for protective purposes, such as for victims of sexual abuse.

The data did not include information about the reasons behind the segregation or the exact conditions. But interviews with dozens of detainees and lawyers indicate detainees are held in isolation in 6-by-13-foot cells for 22 or 23 hours a day with restricted access to legal materials, recreation and communication with others.

Prolonged isolation can cause severe physiological harm, and medical experts have long documented its effects.

“Solitary confinement precipitates a descent into madness,” said Craig Haney, a University of Southern California psychology professor and leading solitary expert, at the U.S. Senate's first hearing about solitary confinement in June 2012.

Mendez was held for one year as a political prisoner in Argentina, where he spent 11 days in solitary confinement.

“It was enough for me to kind of get a sense of what it would be if I had been there longer,” he said. “You just feel completely helpless. You feel abandoned. You feel that nobody cares.”

Mendez recommended a ban on prolonged solitary confinement (anything beyond 15 days) by all governments in 2011. He called for a complete ban against juveniles and those with mental disabilities, whose problems get exacerbated by isolation. In certain circumstances, such as when a detainee needs to be protected, he said it’s warranted for a short period of time.

ICE officials said segregation is necessary in order to protect the detained immigrant, other detainees or jail personnel. Most detainees are isolated for less than two weeks, according to the government data that looked at those segregated in ICE’s most populous facilities over a five-month period in 2012.

ICE has a congressional mandate to detain 34,000 immigrants on any given day, said ICE spokesperson Ernestine Fobbs in an email. Many of the detainees come with criminal histories and pose a threat to public safety, she wrote.

For those it segregates for non-disciplinary purposes, isolation is used as a “as a final resort, when other options are not available to address the specifics of the situation,” added Fobbs, who wrote that health professionals routinely check on those in segregation.

Mary Meg McCarthy, executive director of NIJC, submitted the immigration complaint to the U.N. because she said her lawyers have clients who are in solitary confinement for their protection, "when, in reality, these aren’t even individuals who should be detained," she said.

Her complaint was meant to call attention to a punitive practice being used on a population that is supposed to be held administratively.

“We see often that people think and look at solitary confinement in terms of issues affecting individuals in criminal custody and not necessarily in civil or administrative custody,” she said.

Mendez’s report this month summarized the efforts of various governments’ responses to U.N. human rights inquiries. One of those was to a key complaint about discriminatory placement of the LGBT (lesbian, gay, bisexual and transgender) community in solitary confinement in immigration detention. The U.S. government responded to Mendez in a letter, stating that it is investigating the allegations and has issued new guidance that LGBT immigrants should not be placed in segregation based solely on their sexual orientation or gender identification.