The Blurred Lines Between Management and Punishment

Guest post by Andrew Crosby, researcher in Sociology at the Group for research on Ethnic Relations, Migration and Equality (GERME) of the Université Libre de Bruxelles and fellow at the Fonds National de Recherche Scientifique. He is currently finishing his PhD on immigration detention in Belgium. Previously he has worked on border control at the airport and on the legal position of immigration detainees in Belgium.This is the second instalment of Border Criminologies’ themed series on 'Immigration Detention in an Era of Mass Mobility' organised by Mary Bosworth.

In this blogpost I would like to illustrate how the different kinds of solitary confinement in Belgian immigration detention centres raise questions of due process, accountability and ultimately human rights of detainees. I will discuss the most typical cases I encountered during the field work I conducted for my PhD in three different centres between October 2014 and December 2015.

The rights and duties of both staff and detainees in Belgium are regulated by the Royal decree of 2 August 2002. According to this decree the stay in the centre is characterised by group life, which means that detainees should not be isolated like in prison, but should be as much as possible in contact with their fellow detainees and the outside world. The decree, however, provides for different kinds of solitary confinement.

The first and most straightforward form of this kind of segregation is disciplinary confinement. The decree stipulates a set of violations that, if committed, automatically invoke a disciplinary measure of solitary confinement for 24 hours, which in particular cases, such as attempts to evade, can go up to 72 hours. The most recurring reasons for this measure are the use of physical violence against another person (detainee or staff), vandalism, or the accumulation of smaller infractions that engender ‘warnings’. Three warnings should lead to isolation. However, since the decision has to be taken by a member of management who may decide not to apply the isolation measure, for example, in case of petty infractions (such as smoking in the hallway), this does not always occur. During disciplinary confinement, detainees lose their ‘rights’ (to smoke, to participate in recreational activities, visits, etc.), and their yard walk is reduced to one hour, instead of two.

The other types of solitary confinement are employed for ‘medical’ and ‘order/security’ reasons. Contrary to disciplinary confinement, their use is merely evoked in the decree without any further specification. Thus, they can be problematic because they can be used in a variety of ways and for different causes.

For example, a person may be isolated for medical reasons if s/he has or is suspected of having a contagious disease. In such a case, the motivation to isolate is clear. In other cases, the official reason to isolate will be medical, but the underlying motivation will be maintaining order in the centre. Such is the case with detainees who are in an advanced stage of a hunger strike. While, medical staff try to keep detainees as long as possible in the group, in the hope that this way the detainee will ‘cheat’ a little bit (eat a biscuit, drink coffee or tea with sugar, etc.), it happens that the other detainees start protesting that nothing is being done about the condition of that particular detainee. In turn, this mood swing can endanger the order and peace of the unit, which becomes precarious. In order to prevent that the protest turns into a riot, the decision is taken to isolate the detainee on hunger strike. In this example we see how the line between care and management can be blurred. Similarly, the decree allows a detainee to be segregated from the group if his/her behaviour might compromise the physical integrity of others or the order of the centre. The danger the detainee poses has to be assessed first, yet, there is no procedure for this assessment.

Legally speaking, this type of isolation in a detention centre is not a punishment, but merely a security measure. All the activities and contacts that detainees enjoy in the normal regime should be provided for. However, since the detainee cannot participate with others for reasons of security or order, providing all the services s/he is entitled to becomes quite burdensome, if not impossible without extra staff. Consequently, only the basic services are provided such as two hours of open air and the right to visit. Often, depending on staff on duty, the right to smoke is reduced to a cigarette per hour, when staff perform their security rounds as detainees cannot keep lighters in their cells (in one centre however, some cells have a lighter attached to the wall). From the detainee’s perspective, the time spent inside the cell becomes never-ending and as such is experienced as a punishment.

Furthermore, there are no limits to the length of this particular kind of isolation. It can last as long as the threat to security or order is perceived. Though the measure is assessed daily in order to put an end to it as soon as possible, it quickly becomes unbearable for the detainee if it lasts more than a few days.

In rare cases, this kind of confinement follows a disciplinary one. In my experience this happens usually after an evasion attempt, which invokes 48 to 72 hours of disciplinary confinement. Following that period, management considers that putting a detainee back in the group would be too risky, because s/he might try again and be successful. For this same reason, transferring him/her to another centre is also put aside, because that would merely move the problem to another centre. In such cases isolation is considered to be the only option to manage further risks.

Not unexpectedly, detainees describe prolonged isolation to be harsh and perceive it as a punishment. They are deprived of contact with other detainees, have to spend almost all day in their cell and have very limited access to their cell phone. They have little to do to keep busy in order not to think about what awaits them after detention. Staff openly admit that even though the measure is legally speaking not a punishment, essentially it ‘breaks’ the detainee, makes him/her docile. Therefore, they agree that it can be a disguised punishment.

All these non-disciplinary forms of confinement are determined by collective discussions at staff meetings rather than by the formal application of clear-cut rules: security and order are vague concepts subject to a variety of interpretations. The detainee is not represented in this process, nor invited to contribute to it. Even if it is based on observations and discussions with detainees, the person who is subjected to the decision cannot appeal the measure. For staff, his/her arguments are merely consultative and no more than an extra source of information. The objective reasons and the proportionality of the measure are gauged by the staff. In such cases, for the external observer there is a lack of transparency on how measures are justified and tested for proportionality. In other words, there is no procedural guarantee for the correct application of measures of segregation; they are simply at the discretion of staff.

If, in most cases this is sufficient, there are still many grey areas that are regularly used to facilitate the work of staff. Based on my observations and discussions with staff, it seems that ‘difficult’ detainees regularly and systematically pass some time in isolation because they become unbearable for staff and fellow detainees, not necessarily because they have done something wrong. Whether this will make them suffer or not comes only second to the practical and organisational reasons, except in objective medical cases. In one particular centre during my fieldwork I often witnessed how such a form of confinement was used to obtain good behaviour from the detainee. For example, management would promise the detainee he could spend an hour on the normal unit, if, first, he behaved well in the next 24 hours. Thus, isolation was a way of exercising pressure on the detainee, a scope that is not at all provided for by the Royal decree.

To conclude, despite the Royal decree, the decision to isolate in detention is not clearly regulated by law. Segregation practices are motivated by a range of conflicting issues including security, discipline or order and a desire to manage difficult cases. Since (prolonged) solitary confinement is experienced as punitive by detainees and can to a certain extent be used to put pressure on them, the lines between punishment and management are blurred… and along with them, the guarantees of human rights.

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How to cite this blog post (Harvard style)

Crosby, A. (2017) The Blurred Lines Between Management and Punishment. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/05/blurred-lines (Accessed [date])