Immigration Article of the Day: Swallowing Razors, Gouging Their Eyes Out: The Detainee Treatment Act and Eighth Amendment Protections for Asylum Seekers in Segregated Isolation by Alcira Silva Hava

Swallowing Razors, Gouging Their Eyes Out: The Detainee Treatment Act and Eighth Amendment Protections for Asylum Seekers in Segregated Isolation by Alcira Silva Hava,   Columbia Human Rights Law Review, Forthcoming

Abstract

This Note focuses on the problem of protecting immigrants' rights in detention, and on the problem of Eighth Amendment protections not applying in this "civil" context. As an avenue for incorporating Eighth Amendment standards to immigration detention, and thus securing more protections for detained immigrants, this Note looks to the Detainee Treatment Act of 2005 (DTA). This Note argues that this statute, which tracks Eighth Amendment language and affords the same protections as those recognized by the Eighth Amendment, applies to immigrants in detention. As a case study and application for this proposition, this Note also argues that, under the DTA, subjecting asylum seekers to solitary confinement breaches Eighth Amendment standards, and is thus prohibited by the Act. This Note thus provides two distinct, albeit interrelated, and novel contributions to legal scholarship. First, it engages in the first extensive statutory interpretation of the DTA within the context of immigration detention. Second, it brings together Eighth Amendment scholarship and immigrants’ rights by proposing that the protections afforded by the prohibition against “wanton and unnecessary infliction of pain” can be invoked in the context of immigration detention.

KJ