Commissioners: Dinah Shelton, Rosa María Ortiz, Rose-Marie Belle Antoine, Rodrigo Escobar Gil, Elizabeth Abi-Mershed (Assistant Executive Secretary)
Petitioner: American Civil Liberties Union
The use of solitary confinement is a hidden but growing practice, causing widespread human rights violates, explained Amy Fettig, Senior Staff Counsel for the ACLU’s National Prison Project (NPP). The dangers of this increasingly popular practice were echoed by everyone throughout the March 12, 2013 Inter-American Commission on Human Rights (IACHR) hearing on human rights and solitary confinement in the Americas.
Ms. Fettig said that in the United States, solitary confinement has reached extreme and extensive proportions, but that it is also a regional and global problem. She urged the Commission to take on solitary confinement as a thematic issue, including undertaking a mission to observe and report on the topic, and then to recommend to Member States of the OAS that they adopt measures limiting or restricting the practice. Specifically, she requested that the Commission urge Member States to ban the use of solitary confinement for juveniles and the mentally ill.
In the United States, on any given day there are more than 80,000 people held in solitary confinement, 25,000 of whom are in “Super-max” prisons, or facilities created for long-term solitary confinement. Solitary confinement is hidden through many names: administrative segregation, disciplinary segregation, control units, security housing units, or specialty management uses. Despite the various names, Ms. Fettig testified, the practice looks mostly the same: individuals are placed in a steel or concrete room about the size of an average American bathroom for 22 to 24 hours a day and they are only let out for about five to six hours a week to exercise alone in a cage or cement room; human contact is restricted to brief interactions with correctional officers. She ended by explaining that the human costs of solitary confinement are incalculable and unjustifiable and that the Commission must ensure that it limits and prevents this practice from spreading throughout the Americas.
Ian Kysel, Aryeh Neier Fellow with Human Rights Watch and the ACLU, described his experiences working with juveniles who are in solitary confinement. One minor, Douglas, said that in segregation, you either explode or implode. Many of these juveniles held in solitary confinement are there because they are being separated from adults for their own safety, despite being held in adult prisons or jails. Mr. Kysel said that currently, there are around 95,000 minors in U.S. adult facilities. In some of these facilities, close to 100% of juveniles are held in solitary confinement during pre-trial detention for their own protection or for disciplinary reasons. In solitary confinement, explains Mr. Kysel, the children lose touch with reality and experience a kind of psychological torture. Making the situation worse, these minors do not have age-appropriate programming (where they are allowed programming), and so they are denied social and emotional education. They are denied contact with their families and some are not allowed to exercise for up for thirty days.
United Nations Special Rapporteur on Torture Juan Méndez said that solitary confinement is an affront on the human right to personal, physical, and mental integrity. Méndez said that he submitted a preliminary study on the topic to the General Assembly of the UN as well as the UN Human Rights Council He explained that even after just fifteen days in solitary confinement, there are deleterious psychological effects that may be irreversible. The European Court of Human Rights and the IACHR recognize that keeping people incommunicado and in isolation is cruel, inhumane and degrading treatment, said Méndez. He explained that the conditions create their own psychological disorders such as “prison psychosis,” which results in anxiety, depression, self-inflicted harm and delusions; extended solitary confinement can make these conditions permanent. Méndez said extended solitary must be considered a violation of Article 16 of the International Covenant on Civil and Political Rights (ICCPR) as well as Article 5 of the American Declaration on the Rights and Duties of Man.
Special Rapporteur Méndez continued by explaining the various regional uses of the practice. In Brazil, solitary confinement cannot last longer than thirty days, but various exceptions allow for a prisoner to receive 360 days of confinement, which can be extended even further. Penitentiaries in Paraguay and Peru use a code that allows for thirty days of solitary confinement, but the time period is often abused. The UN Subcommittee on Prevention of Torture reported that in Honduras prolonged solitary confinement is used as a form of punishment. Argentina also uses the practice to punish inmates.
Commissioner Escobar Gil said this is a priority issue because it is not only an issue of inhumane treatment or punishment, but given the circumstances, ample scientific research has shown that solitary confinement amounts to psychological torture. In his capacity as Rapporteur on the Rights of Persons Deprived of Liberty, he noted that this practice is common throughout the region. Commissioner Antoine, Rapporteur on the Rights of Afro-Descendants and against Racial Discrimination, said due to racially disproportionate prison populations in the United States, she was curious if solitary confinement was also a practice that was used in a racially discriminatory fashion. She also said that keeping children in solitary confinement denies them their social and cultural rights to education, leaving a long-term impact on their lives. Commissioner Shelton commented on the incrementalist approach to this issue and said that it seemed similar to the death penalty in that those testifying were seeking to eliminate specific categories, rather than calling it a per se violation. She also noted that the practice in the context of children and the mentally ill goes beyond prison to mental health facilities and orphanages, where the practices are common. Commissioner Ortiz asked Special Rapporteur Méndez whether there are sufficient mechanisms in place to avoid torture.
Special Rapporteur Méndez explained that there are not sufficient protections to ensure solitary confinement does not become torture, even when it is used for legitimate reasons. He noted that people in charge in the facilities have full power to decide who goes into solitary confinement because it is an “administrative measure” without judicial review, denying the chance for due process, specifically judicial review. Mr. Kysel noted that the data is grossly inadequate, and so they are unsure about the racial disparities in the practice. Ms. Fettig closed the hearing by reaffirming the importance of transparency in this issue and asking the Commission to take this on as a mission.