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Staffer Blog: The Tide is Turning Against Solitary Confinement

By Henry Hagnäs from Turku, Finland (Solitary Confinement) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Huvie Weinreich, Columbia Law School Class of 2018

Solitary confinement (sometimes referred to as restricted or segregate housing) is under legal fire. While prison reform advocates have long campaigned against the use of solitary confinement in prisons, the last past few years have finally seen true advances towards reduction or even elimination of the practice.

As recently as February 9th, 2017, the Third Circuit Court of Appeals struck down Pennsylvania’s practice of indefinitely housing former death-row inmates in Segregated Housing.[1] Plaintiffs, Craig Williams and Shawn T. Walker, were sentenced to death and housed on death row in separate Pennsylvania prisons. After each had his death sentence vacated, they were kept in solitary confinement for several years until they were resentenced to life without parole and placed back into the general prison population. Williams and Walker sued for damages, arguing that their 14th Amendment due process rights had been violated when they were kept in solitary confinement without any review of this placement. The Third Circuit concluded “. . .that there is [a constitutionally protected liberty interest] and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.”[2]

In its opinion, the court cited two other recent legal decisions: Incumaa v. Sterling, a 2015 case in which the Fourth Circuit held that the conditions of solitary confinement are sufficiently worse than general prison conditions such that solitary confinement created a protected liberty interest in remaining with the general prison population,[3] and Johnson v. Wetzel, a 2016 case in which the Middle District of Pennsylvania held that the potential damage from an extended period of solitary confinement was so severe and imminent that the plaintiff was entitled to a preliminary injunction moving him to the general population.[4] As the Third Circuit wrote, these cases serve to highlight “the judiciary’s increasing recognition of the scientific evidence of the harms of solitary confinement.”[5]

These cases come in the wake of heavy criticism from other sources of Pennsylvania’s solitary confinement practices. In 2013, the Pennsylvania State Correctional Institution at Cresson was the subject of a Department of Justice investigation.[6] Cresson was using solitary confinement to manage its prisoners with mental illness rather than providing appropriate care or supervision. Inmates who were determined to be mentally ill would be automatically placed in solitary confinement, in large part because the prison had inadequate mental health facilities to actually treat them. The DOJ found these practices to be violations of the Eight Amendment and the Americans with Disabilities Act. [7]

Additionally, advocates for reform have focused primarily on two issues: mental illness and solitary for juveniles. Many states, including Massachusetts, and Colorado, have passed laws to restrict the length of time mentally ill prisoners spend in solitary and to institute screenings for mental health deterioration while in solitary.[8] At the federal level, much attention has been given to removing solitary confinement for juveniles. In 2015, the MERCY (Maintaining dignity and Eliminating unnecessary Restrictive Confinement of Youths) Act of 2015, a bipartisan juvenile justice reform bill, was introduced in the Senate, but never passed.[9] In January 2016, President Obama banned the use of solitary confinement for juveniles in the federal prison system, and had the DOJ release a report on the use of segregated housing which included general policy recommendations to restrict the use of solitary confinement for all juvenile prisoners.[10] Just this month, the House and Senate have reintroduced the MERCY Act, still a bipartisan initiative, to reinforce the executive order and continue to reform us of solitary confinement.[11]

Of course, not every jurisdiction is currently engaged in reform. For example, Governor Walker of Wisconsin recently introduced a budget for the Wisconsin youth prison that does not give the state enough money to comply with federal law, let alone engage in any needed reforms,[12] particularly in light of the fact that the ACLU is currently suing Wisconsin over youth prison conditions.[13] Additionally, many are concerned that federal prison reform efforts will be halted under President Trump’s new administration.[14]

However, even if executive initiatives for prison reform are not continued or even reversed, the increasing momentum against solitary confinement within our judiciary should give us hope. It appears that courts are beginning to respond to a growth in public sentiment against the widespread use of solitary confinement in U.S. prisons, and are beginning to act to reduce the practice.



[1] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327 (3d Cir. Pa., Feb. 9, 2017).

[2] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *1-2.

[3] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *42-43 (citing Incumaa v. Stirling, 791 F.3d 517, 522 (4th Cir. 2015)).

[4] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *43-44 (citing Johnson v. Wetzel, 2016 U.S. Dist. LEXIS 127780 (M.D. Pa. Sept. 20, 2016)).

[5] Williams v Sec’y Pa. Dep’t of Corr., 2017 U.S. App. LEXIS 2327, at *43.

[6] Civil Rights division, U.S. Dep’t of Justice, News Release 13-631, Justice Department Finds Pennsylvania State Prison’s Use of Solitary Confinement Violates Rights of Prisoners Under the Constitution and the Americans with Disabilities Act (May 31, 2013), https://www.justice.gov/opa/pr/justice-department-finds-pennsylvania-state-prison-s-use-solitary-confinement-violates-rights (hereinafter “D.O.J. News Release”). The report noted that though ” the Pennsylvania Department of Corrections now intends to close Cresson, many of the prison’s problematic policies and practices relating to the se of solitary confinement appear indicative of what is occurring statewide.”

[7]D.O.J. News Release.

[8] See COLO. REV. STAT. § 17-1-113.8 (2015); MASS. GEN. LAWS § 127-39A (2015); see also The Liman Program, Yale Law Sch. & Ass’n Of State Corr. Adm’rs, Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation In Prison, Sec. I (Aug. 2015), available at https://www.law.yale.edu/system/files/documents/pdf/asca-liman_administrative_segregation_report_sep_2_2015.pdf [https://perma.cc/A6RV-E2JP] (for a survey of solitary confinement reform across jurisdictions).

[9] S. 1965, 114th Cong. (2015).

[10] Michael D. Shear, Obama Bans Solitary Confinement of Juveniles in Federal Prisons,  N.Y. Times, Jan. 26, 2016, https://www.nytimes.com/2016/01/26/us/politics/obama-bans-solitary-confinement-of-juveniles-in-federal-prisons.html?_r=0; Press Release, Office of the Press Sec’y, Fact Sheet: Department of Justice Review of Solitary Confinement (Jan. 25, 2016), https://www.whitehouse.gov/the-press-office/2016/01/25/fact-sheet-department-justice-review-solitary-confinement [https://perma.cc/G27J-XB9A].

[11] News Release from the office of Cong. Mia Love, Mercy Act Would Prohibit Solitary Confinement of Juveniles Tried in Federal System  (Feb. 7, 2017), https://love.house.gov/in-the-news/mercy-act-would-prohibit-solitary-confinement-of-juveniles-tried-in-federal-system/.

[12] Todd Richmond, Critics Pan Walker’s Budget on Youth Prison, Wis. Gazette, Feb. 13, 2017,  http://wisconsingazette.com/2017/02/13/critics-pan-walkers-budget-on-youth-prison/.

[13] Vidushi Saxena, Lawsuit shines light on impact of solitary confinement on youth mental health, Badger Herald, Feb. 7, 2017, https://badgerherald.com/news/2017/02/07/lawsuit-shines-light-on-impact-of-solitary-confinement-on-youth-mental-health/.

[14] Jon Schuppe, With Trump in White House, Criminal Justice Reformers Will Look Elsewhere, NBC News, Nov. 10, 2016, http://www.nbcnews.com/storyline/2016-election-day/trump-white-house-criminal-justice-reformers-will-look-elsewhere-n681536.

Staffer Blog: An Inexplicably Narrow Definition of “Custody” in Immigration Removal

Deborah Capiro, Columbia Law School class of 2018

Photo credit: Jerry Lara, Staff, San Antonio Express-News.

The language of 8 C.F.R. 1236.1(d)(1) gives Immigration Judges authority to make custody re-determinations when a non-citizen is about to be released from immigration detention and beyond:

After an initial custody determination by the district director, including the setting of a bond, the respondent may, at any time before an order under 8 CFR 240 becomes final, request amelioration of the conditions under which he or she may be released.” “If the alien has been released from custody, an application for amelioration of the terms of release must be filed within 7 days of release.”

In addition to the federal regulations, the term “custody” appears in section 236 of the Immigration and Nationality Act (“INA”) as it pertains to the “Apprehension and Detention of Aliens.” Neither the INA nor the federal regulations define the term, and Congress has given the Department of Homeland Security (“DHS”), which enforces the immigration laws, no guidance on how to interpret it. However, DHS has construed custody to require physical confinement at a detention facility.[i]

The Supreme Court has affirmed that, besides physical imprisonment, there are other restraints on an individual’s liberty—not shared by the public at large—that constitute “custody.” An encompassing meaning of “custody” was first adopted in 1963 when the U.S. Supreme Court held that a petitioner’s release on parole satisfied the “in custody” requirement of habeas corpus jurisdiction.[ii] Fundamental to the Court’s reasoning was that, although the petitioner was released from physical confinement per se, the conditions of his parole continued to “significantly confine and restrain his freedom.”[iii] In Hensley v. Municipal Court, the Supreme Court further broadened the definition of “custody” when it held that a petitioner released on his own recognizance was “in custody” prior to trial but had to appear in criminal court when ordered because he was “subject to restraints not shared by the public generally.”[iv]

Federal Court of Appeals jurisprudence has also recognized that a variety of non-confinement restraints on liberty satisfy the custodial requirement. Most recently, in Nowakowski v. New York, the Second Circuit held petitioner was “in custody” for the purposes of habeas review when he was subject to conditional discharge requiring one day of community service.[v]

In addition to DHS’ narrow construction of custody, the Board of Immigration Appeals (“BIA”), the Executive agency adjudicating and interpreting U.S. immigration laws, has also chosen to apply a more limited definition in the immigration context that frustrates the ability of many immigrants to challenge restrictive conditions placed on their liberty. The most recent BIA precedent in Matter of Aguilar-Aquino relies on a distinction between “detention” or “actual physical custody” and other forms of restrictions on liberty, ignoring the Supreme Court’s broad definition of “custody,” as articulated in the context of habeas corpus. In this case, the DHS released the respondent from detention as long as he complied with wearing an electronic monitoring device on his ankle and remained in his residence between the hours of 7:00 p.m. and 7:00 a.m.[vi] Two months after his release, the respondent requested a redetermination of his custody status before the Immigration Judge, asking that the electronic monitoring device be removed and that he be released on his own recognizance. The Immigration Judge concluded the ankle monitor, an alternative program to detention, was a form of “custody” and the regulations (8 CFR § 1236.1(d)(1)) gave her jurisdiction to re-determine the conditions on the respondent’s custody status. On appeal, the BIA held that the Immigration Judge lacked jurisdiction to consider the respondent’s request for amelioration of the terms of his release given that he had been “released from custody,” thus defining “custody” to only include its most extreme form: actual physical detention.[vii]

In Matter of Garcia-Garcia, the BIA clarified the holding in Aguilar-Aquino by determining “custody,” as the term is used in 8 CFR § 1236.1(d)(1), requires actual physical restraint or confinement within a given space. The agency found the Immigration Judge lacked jurisdiction under 8 CFR § 1236.1(d)(1) to consider the respondent’s request for amelioration of the terms of his release where the respondent had been “released from custody” more than seven days prior to his request. The BIA reasoned that Congress used the terms “custody” and “detain” interchangeably and did not intend for them to be afforded different meanings. Furthermore, The BIA found the Immigration Judge’s reliance on federal habeas corpus jurisprudence to in determining the meaning of custody to be erroneous.[viii]

As the number of individuals detained not subject to mandatory detention—particularly mothers and children—has exponentially grown, DHS’ use of ankle monitors in setting release conditions has become the norm.[ix] Ankle monitors, in particular, are highly restrictive: they restrict an individual’s freedom of movement and require confinement in a specific space such as a private dwelling for approximately twelve hours per day. The BIA has not provided a satisfactory explanation as to why the definition of “custody” in the INA context cannot be afforded the broad interpretation employed in the habeas corpus jurisprudence—a definition of custody that would encompass restrictive release conditions that are not shared by the public at large.

[i] See INA § 236(c); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody,” 48 U. Michigan Journal of Law Reform. Page, Issue 4 (2015).

[ii] Jones v. Cunningham, 371 U.S. 236, 243 (1963).

[iii] Id.

[iv] Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).

[v] Nowakowski v. New York, No.14-1964 (2nd Cir. 2016).

[vi] Matter of Aguilar-Aquino, 24 I&N Dec 747 (BIA 2009).

[vii] Matter of Aguilar-Aquino, 24 I&N Dec 747, 747 (BIA 2009).

[viii] The Immigration Judge had based its decision on cases like Jones v. Cunningham where the Supreme Court broadly interpreted “custody” to mean any restrain on personal liberty “not shared by the public generally.”

[ix] In July, 2015, ICE used approximately 9,300 ankle monitors—an increase of over forty percent since January 2015. Molly Hennessy-Fiske, Immigrants Object to Growing Use of Ankle Monitors After Detention, L.A. TIMES (Aug. 2, 2015), http://www.latimes.com/nation/ immigration/la-na-immigrant-ankle-monitors-20150802-story.html.

Our Staffers are Blogging!

The JLM is staffed by a wonderful group of law students with unique expertise in issues affecting our readers. Over the next few months, our staffers will be blogging about the issues that they care about, from immigration law to healthcare in prison. Check back for new blog posts!

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