February 26, 2024

Munger, Tolles & Olson Attorney Felipe De Jesús Hernández Authors Harvard Law Review Essay on Legal and Ethical Challenges of Solitary Confinement in Immigration Prisons

Munger, Tolles & Olson attorney Felipe De Jesús Hernández has authored an essay in the Harvard Law Review Forum’s February 2024 issue, titled “Extrajudicial Segregation: Challenging Solitary Confinement in Immigration Prisons.”

The essay explores the legal and ethical challenges of solitary confinement in immigration prisons and the adverse effects of prolonged isolation on a person’s mental and physical health and the lack of judicial oversight in addressing this issue. In the essay, Mr. Hernández lays out the evolution of immigration prisons, expansion of solitary confinement, and the current grim reality of people in solitary. He also examines the convoluted and limited legal pathways—described as an “extrajudicial realm of law” or “second tier of ‘justice’”—that people have for challenging solitary confinement in immigration prisons. Next, he describes how plaintiffs may bring forth viable challenges—which he is also currently working on as pro-bono co-counsel. He then presents harm-reduction legislative options that align with international human rights standards.

Early on, Mr. Hernández notes that “the United Nations recognized that solitary confinement—the caging of people in isolation for twenty-two to twenty-four hours a day in a cell—beyond fifteen consecutive days is cruel, inhumane, and degrading treatment amounting to torture” in 2015. Yet, in fiscal year 2023, people spent an average of “twenty consecutive days and thirty-eight cumulative days in solitary confinement” in immigration prisons—an increase from 2022 to 2023. A consensus of scientific research shows that solitary confinement “worsens physical and psychological health outcomes, leads to premature death and exacerbates debilitating illnesses.” Accordingly, Mr. Hernández argues solitary confinement only serves to perpetuate harm and he concludes by joining the multitudes of organizations, survivors, legislators, and people calling for the abolition of solitary entirely.

According to Mr. Hernández, “solitary confinement in immigration prisons is an extrajudicial segregation that is tolerated and maintained by all three branches of government.” The current reality includes bipartisan congressional inaction; lack of executive oversight; systemic barriers, such as lack of access to legal resources, threat of retaliation by prison officials and more; all of which highlight the need for increased transparency and accountability in the immigration detention system to ensure the protection of a person’s rights and dignity.

Read the full essay in the Harvard Law Review.