UNITED STATES HUMAN RIGHTS VIOLATIONS IN CORRECTIONAL PRACTICES
A contribution to the 2010 UN Universal Periodic Review
By NGO International CURE
The Universal Periodic Review (UPR), established by the UN General Assembly resolution 60/251 of 15 March 2006, is a new human rights mechanism. Through the UPR, the Human Rights Council (HRC) reviews, on a periodic basis, the fulfillment by each of the United Nations’ 192 Member States of their human rights obligations and commitments. The 2010 UPR includes an assessment of the United States adherence to its commitments. CURE’s assessments in the following concern only issues in correctional practices as guided by ratified human rights documents
I. ACCESS TO THE COURTS
II. CONTROL UNITS
III. EDUCATION IN PRISON
IV. MEDICAL CARE IN PRISONS
V. SEXUAL SECURITY
VI. COMMUNITY TIES; VOTING and FAMILY
VII. DEATH PENALTY and LIFE WITHOUT PAROLE
VIII. LIFE WITH PAROLE
IX. MENTALLY ILL IN PRISON
X. PRIVATE PRISONS
XI. TELEPHONE SERVICE IN PRISONS
XII. SLAVERY, FORCED LABOR, AND WORK IN PRISONS
XIII. SEX OFFENDERS
I. ACCESS TO THE COURTS
A. RELEVANT HUMAN RIGHTS
Article 14, Paragraph 3 of the International Covenant on Civil and Political Rights (ICCPR), ratified by the US: “Minimum guarantees: to be informed promptly and in detail in an understandable language the nature and cause of charges; to have adequate time and facilities for preparation of a defense and communication with counsel of one’s own choosing; or legal assistance assigned without payment if one is indigent; to have free assistance of an interpreter.”
Article 2, Paragraph 3 states: “Each State Party to the present Covenant undertakes: To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 5 (a) of the International Convention on the Elimination of Racial Discrimination (ICERD): “the right to equal treatment before the tribunals and all other organs administering justice.”
B. ANALYSIS.
A report, titled “Lessons Not Learned,” by the Innocence Project, detailed 23 wrongful convictions in New York that have been overturned through DNA evidence.
1. Eyewitness misidentification played a role in 13 of the 23 wrongful convictions in New York that were overturned.
2. In 10 of the 23 cases in New York, innocent people falsely confessed or admitted to crimes that DNA later proved they did not commit.
3. Limited or unreliable forensic science played a role in 10 of the 23 wrongful convictions in New York that were overturned.
C. VIOLATIONS.
ICCPR: Inadequate legal defense for persons living in poverty results in many false convictions of innocent persons. Over one-hundred individuals in capital cases have been exonerated, through subsequent DNA technology, after spending years in prison for crimes they did not commit. This extent of injustice in high visibility capital cases is a certain indicator of more injustice in non-capital cases.
Capital juries are death qualified which means jurors have to be willing to give the death penalty in order to serve. The prosecution customarily has an unlimited budget and resources whereas public defender offices are traditionally staffed by lawyers carrying large caseloads with limited budgets. This often means limited, if any, investigation. Interrogation techniques are often manipulated by law enforcement, witnesses are threatened, confessions are coerced, eyewitness testimony is extracted with prejudicial techniques, jailhouse informants are used to gain convictions. Prosecutors cannot be prosecuted even for hiding exculpatory evidence.
Police are permitted to lie to defendants to get confessions. In many cases, defendants do not have any communication with their attorneys, even in capital cases, and little preparation takes place prior to trial. Despite a Supreme Court ruling requiring 2 lawyers and 2 investigators, one of which must be a mitigation specialist for capital trials, this is still not the norm.
Foreign nationals who are arrested are frequently not permitted to contact their consulate for help. Non English speaking defendants are often not provided with interpreters.
Denial of effective redress of constitutional violations. Persons who seek their rights must not be punished because of those efforts. The constraints on access to legal review imposed by the Prison Litigation Reform Act of 1995 (PLRA) have been significant impediments to the redress of violations of prisoners’ rights. By keeping constitutional claims out of court, the PLRA places severe limitations on the possibility of challenging and redressing abusive prison conditions through litigation.
ICERD: Racial discrimination has dominated our criminal justice system. People of color are convicted disproportionately to their makeup in the overall population, particularly if the victim is white. Juries continue not to reflect the actual population. Drug laws are less severe for the so-called white drugs vs. drugs commonly found in the poorer, non white population.
D. RECOMMENDATIONS:
1. Change jury qualification to eliminate “death qualification” in capital juries. Make certain juries actually reflect the racial make-up of the community.
2. In capital trials enforce ABA recommendations: defense team must have 2 lawyers, 2 investigators,
one of which is a mitigation specialist.
3. Implement videotaping in interrogations, double-blind eyewitness identification techniques.
4. Eliminate police freedom to lie to defendants to obtain confessions.
5. Jailhouse informants are unreliable and should only be used after extreme scrutiny of deals made for their testimony.
6. Prosecutors should be subject to prosecution and lawsuits for not disclosing exculpatory evidence.
7. Foreign nationals should be put in contact with their consulate immediately after arrest. Non-English speaking defendants should be provided with interpreters at every step in legal processes.
8. DNA and other forensic testing should be provided.
9. Amend the PLRA to eliminate the barriers to effective redress of constitutional violations.
II. CONTROL UNITS
A. RELEVANT HUMAN RIGHTS
Article 7 of the International Covenant on Civil and Political Rights states: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”
B. ANALYSIS.
Brain damage. Without sustained social interaction, the human brain may become as impaired as one that has incurred a traumatic injury. …One of the paradoxes of solitary confinement is that, as starved as people become for companionship, the experience typically leaves them unfit for social interaction.” (Atul Guwande, New Yorker, March 30, 2009)
C. VIOLATIONS.
A study of a hundred randomly selected inmates at California’s Pelican Bay supermax prison, noted that after months or years of complete isolation, many prisoners “begin to lose the ability to initiate behavior of any kind—to organize their own lives around activity and purpose.”… “Chronic apathy, lethargy, depression, and despair often result. In extreme cases, prisoners may literally stop behaving,” becoming essentially catatonic. (Craig Haney, a psychology professor at the University of California at Santa Cruz)
Such debasement of human beings clearly violates the intent of Article 7 of the ICCPR.
D. RECOMMENDATIONS.
1. Current practice of prolonged isolation in control/segregation units should be stopped completely.
2. There should be narrowly defined criteria for placement into control/segregation units so that they are used only for prisoners who are the most serious threats to safe and humane operations of correctional facilities. Placement in such units may never be done for prisoners with known psychiatric problems.
3. There should be a clearly articulated system in place for prisoners to work their way back to open population settings over a reasonable period.
4. The conditions inside the cells must not lead to adverse sensory deprivation, overstimulation, or disorientation, due to lack of natural light or excessive sound/noise/music. Deprivation of food, water or sleep, or spatial disorientation must be avoided at all costs. Restraints should not be used for punishment.
5. The mental health of all prisoners who are in control/segregation units should be regularly reviewed by properly trained and certified mental health professionals. If, in the opinion of these professionals, the inmates need treatment, it should be provided immediately, including transfer to a psychiatric setting if necessary.
III EDUCATION IN PRISON
A. RELEVANT HUMAN RIGHTS
The Universal Declaration of Human Rights (UDHR) states, in Article 26.1: “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available, and higher education shall be equally accessible to all on the basis of merit.”
Article 10.3 of the ICCPR: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”
Article 5 of the ICERD: “to guarantee the right of everyone, without distinction as to race…the right to education and training.”
B. ANALYSIS.
Especially for ex-offenders, adequate vocational training is key to economic survival and re-integration into society, In the workplace of the United States, this usually requires vocational training beyond secondary schooling. Specialized occupational training in careers like electrical installation, plumbing, welding, building construction, air conditioning, heating, auto mechanics, and semi professional skills that are available in community colleges, are essential.
C. VIOLATIONS.
1. UDHR: Post secondary vocational training, that is needed for economic survival in the U.S., is seriously inadequate in most U.S. places of detention.
In 1995, the U.S. Congress terminated all federal funding (financial aid via PELL Grants) for post-secondary education in prisons. Within five years the U.S. Congress established post secondary grants for financial aid of youthful offenders and now such funds are available for offenders up to the age of 35. However, funding is not adequate and the level of commitment must be changed to cover all ages of the incarcerated. These social exclusions and inadequacies violate the intent of Article 26 of the UDHR.
Compounding the reentry problem, laws needlessly deny licenses to persons with criminal records that are unrelated to the work involved.
2. ICERD:The grossly disproportionate inclusion of African-Americans and Hispanics in the prison systems of the U.S., and the relative inadequacy of Correctional Education, effectively deprives such persons of equal educational opportunity, thus violating Article 5 of the ICERD.
D. RECOMMENDATIONS.
1. Federal and state laws and regulations should generally include correctional education as beneficiaries on a par with public education.
2. Steps should be taken to enhance education in places of detention so that educational content and quality there will approach a par with public education.
3. Federal funding of financial aid for post-secondary education in prisons (PELL Grants for prisoners) should be restored, on a par with federal aid in public education.
4. Unwarranted restrictions on work licenses should be removed.
5. To facilitate investment in correctional education, the use of lower cost technologies such as distance learning and online video should be encouraged and funded, as supplements to standard education delivery.
IV. MEDICAL CARE IN PRISONS
A. RELEVANT HUMAN RIGHTS
1. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT): Deliberate indifference to the pain and suffering of those in custody evidenced by the denial of medical care, unreasonable delay in the provision of care, or the provision of substandard and ineffective care is prohibited by Article 16, which obligates each State Party to “undertake to prevent in any territory under its jurisdiction other acts of cruel or degrading treatment or punishment”
2. The U.S. Constitution: The 8th amendment to the U.S. Constitution prohibits cruel and unusual punishment. In Estelle v. Gamble, 429 U.S. 97 (1976), the Court concluded that deliberate indifference to serious medical needs of prisoners constitutes "unnecessary and wanton infliction of pain," whether the indifference is displayed by prison doctors in their response to the prisoner's need or by prison guards who deny or delay access to treatment or interfere with the treatment.
B. ANALYSIS.
All inmates with substance use disorders should be provided evidence-based treatment and aftercare. We would then break even on this investment in one year if just over 10 percent of those receiving such services remained substance and crime free and employed. For each succeeding year that these inmates remained substance and crime free and employed, the nation would reap a huge economic benefit in reduced crime, lower arrest, prosecution, incarceration and health care costs, and economic benefits from employment. (Center on Addiction and Substance Abuse at Columbia University)
Documentation Of Various Instances Of Deficient Medical Care
· ACLU Lawsuit Charges Grossly Inadequate Medical Care At State Prison In Nevada
http://www.aclu.org/prisoners-rights/aclu-lawsuit-charges-grossly-inadequate-medical-care-state-prison-nevada
http://www.aclu.org/prisoners-rights/challenging-grossly-inadequate-medical-care-ely-state-prison
· Healthcare Behind Bars, Part 1: Prisoners of the system
http://www.modernhealthcare.com/article/20070219/REG/70216010#
· Access To Health Care Among U.S. Prisoners Is Inadequate
http://www.medicalnewstoday.com/articles/135684.php
The Prison Litigation Reform Act
· A review of the Act Prepared for Second Circuit Court of Appeals (2004) http://www.wnylc.net/pb/docs/plra2cir04.pdf
· Reform the Prison Litigation Reform Act (PLRA)
In enacting the Prison Litigation Reform Act (PLRA) in 1996, Congress sought to curb what was perceived to be an overwhelming number of frivolous prisoner lawsuits. There certainly are frivolous prisoner lawsuits that have been kept out of court by the PLRA. However, after a decade of experience under the legislation, it is clear that the PLRA is also keeping countless serious claims from reaching the courts—including claims of physical and sexual abuse, indifference to inmate on inmate rape, gross mistreatment of confined juveniles, and markedly deficient medical and mental health treatment. This effectively prevents courts from exercising their role of protecting constitutional rights. http://www.savecoalition.org/pdfs/save_final_report.pdf
C. VIOLATIONS.
1. CAT: The systematic failure to provide adequate resources to provide care to inmates, as illustrated by the placing in judicial receivership the medical services of the California Department of Corrections, also constitutes an 8th amendment violation and, by implication, a violation of Article 16 of The Convention.
2. Only 11 percent of inmates with substance use disorders receive any type of treatment during incarceration; few of those receive evidence-based care. (“Behind Bars II: Substance Abuse and America’s Prison Population” CASA; February 2010).
3. Many other instances of failure to provide prisoners and detainees with constitutionally adequate medical and psychiatric care. The articles referenced in the Annex provide a glimpse of the failure of penal institutions to provide constitutionally adequate care.
4. Medical co-pays from inmates are sometimes large when compared to their income, and can deter timely and preventive medical treatment.
D. RECOMMENDATIONS
1. All inmates with substance use disorders should be provided evidence-based treatment and aftercare.
2. Provide adequate resources and staff training to ensure constitutionally sufficient medical care.
3. Institute a structure of review of prison performance independent of prison administrative structure. For example, establish an independent ombudsman to review prisoner complaints and to monitor the indices of prison administrative performance.
4. Eliminate or reduce medical co-payments by inmates in accord with their income.
V. SEXUAL SECURITY
A. RELEVANT HUMAN RIGHTS
The Preamble to the Article 3 of the ICCPR states: “The States Parties to the present Covenant shall undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”
Article 7 of that Covenant states: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”
B. ANALYSIS.
Prison rape not only threatens the lives of those who fall prey to their aggressors, but it is potentially devastating to the human spirit. Shame, depression, and a shattering loss of self-esteem accompany the perpetual terror the victim thereafter must endure." (U.S. Supreme Court Justice Harry A. Blackmun).
The sexual assault of prisoners, whether perpetrated by corrections officials or by other inmates, amounts to torture under international law. Torture is prohibited by international conventions and treaties, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR), both of which have been ratified by the United States.
C. VIOLATIONS
1. Sexual assault. In 2009, the State of Michigan paid $100 million to settle a class-action by more than 500 female prisoners who said they were sexually assaulted by prison guards.
2. Sexual abuse. In a 2007 survey of prisoners across the country, the Bureau of Justice Statistics (BJS)
found that 4.5 percent (or 60,500) of the more than 1.3 million inmates held in federal and state prisons
had been sexually abused in the previous year alone. A BJS survey in county jails was just as
troubling; nearly 25,000 jail detainees reported having been sexually abused in the past six months.
Incarcerated women have undergone intrusive pat-downs and body searches in public by male guards.
D. RECOMMENDATIONS
1. Adopt and enforce the national standards that were developed under the Prison Rape Elimination Act.
2. Ratify the OPCAT, which establishes a system of regular visits undertaken by international and national bodies to places of detention in order to prevent torture and other forms of ill treatment.
3. Prohibit pat-downs and body-searches of women by male officers.
4. Adopt severe penalties for staff violence against women inmates.
5. Swiftly prosecute, and widely publicize punishment, for all violence by staff on women inmates.
VI. COMMUNITY TIES; VOTING and FAMILY
A. RELEVANT HUMAN RIGHTS
1. Article 21 (1) of the UDHR states that “Everyone has the right to take part in the government of his country directly or through freely chosen representatives,” and (3) of the UDHR states that “the will of the people shall be expressed ...by universal and equal suffrage.”
2. Article 17 of the ICCPR states: “No one shall be subjected to arbitrary or unlawful interference with his privacy, home, or correspondence, nor to unlawful attacks on his honor and reputation.”
B. ANALYSIS.
1. Restoring a person’s right to vote is a critical element to successful reentry into society after incarceration, and consistent with our democracy’s modern ideal of universal suffrage.
2. If offenders are to achieve a relatively stable lifestyle post-release, continued contact with family and friends is needed.
3. Research shows that children are the unintended victims of a prison sentence, with many children of prisoners less likely to complete secondary school and more likely to become homeless or unemployed and more likely to come into contact with the juvenile justice or criminal justice systems. The likelihood of the children of an imprisoned parent ending up in prison increases by 6 times; they are also six times as likely to have mental health problems. (report by Justice Action)
C. VIOLATIONS.
1. Article 21 (1) of the UDHR: Nationally, an estimated 5.3 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions. Of these, 4 million are out of prison and living and working in the community. Two states permanently ban voting by anyone with a felony record of any sort.
Also, 13% of all adult black men or nearly 1.4 million are disenfranchised. This represents one-third of the total disenfranchised population.
2. Article 17 of the ICCPR: Only a few states have visits where the family is together for 48 hours.
Some correctional facilities are now limiting mail to only postcards. This is certainly a violation of privacy in regard to the family which the state must have a special obligation to uphold.
D. RECOMMENDATIONS.
1. Voting should be permitted and facilitated for all persons incarcerated and for those already released from prison.
2. There should be periodic private family visits that can continue supportive relationships among all family members of persons incarcerated.
3. Close relations with family should be facilitated, including ordinary privacy of correspondence.
VII. DEATH PENALTY and LIFE WITHOUT PAROLE
A. RELEVANT HUMAN RIGHTS
1. Article 6-1 of the ICCPR: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
2. Article 6-2 of the ICCPR: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes… and not contrary to the provisions of the present covenant.“
3. The “Rome Statute of the International Criminal Court,” adopted by the United Nations in July 1998, declares that in all life sentences, a review is mandated after twenty-five years and /if warranted/ a lesser sentence may be imposed (Article 110 No. 3). By October 2009, 110 states had become party to the treaty, with 38 states signed but not yet ratified.
4. Article 10.3 of the ICCPR: “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”
5. Article 1 of the ICCPR: “All peoples have the right of self determination. By virtue of that right they …freely pursue their cultural development.”
B. ANALYSIS
1. Since 1973, over 130 people have been released from death row with evidence of their innocence. (Staff Report, House Judiciary Subcommittee on Civil & Constitutional Rights, Oct. 1993, with updates from DPIC). From 1973-1999, there was an average of 3.1 exonerations per year. From 2000-2007, there has been an average of 5 exonerations per year.
2. In the United States 35 states with death penalty statutes also can impose life without parole. 14 states which do not have death penalty statutes may impose life without parole, including the District of Columbia. Alaska is the only state that does not impose life without parole.
3. A report released by The Sentencing Project, “The Meaning of 'Life': Long Prison Sentences in Context” (http://www.deathpenaltyinfo.org/life-without-parole), indicates a dramatic increase in life without parole sentences and notes that prisoners are generally serving longer terms of incarceration: “Of the lifers in prison, one in four (26.3%) is serving a sentence of life without parole, having increased from one in six (17.8%) in 1992. In six states - Illinois, Iowa, Louisiana, Maine, Pennsylvania, and South Dakota - all life sentences are imposed without the possibility of parole. Seven states - Alabama, California, Florida, Illinois, Louisiana, Michigan, and Pennsylvania - have more than 1,000 prisoners each serving sentences of life without parole. The increase in prison time for lifers is a result of changes in state policy and not due to increases in violent crime.”
C. VIOLATIONS
1. The high rate of exonerations of persons on death row awaiting execution is proof of the “arbitrary deprivation of life,” with inadequate proof of a “most serious crime.”
2. The rapid increase and the high rate of life-without-parole testifies to the arbitrary “slow death” deprivation of life as a result of politically motivated changes in state policy and not due to increases in violent crime or greater need for public safety.
3. Several other human rights are brought into question. For example, the right to the opportunity to reform one's life, to change, to grow positively in maturity and responsibility; and the right for an opportunity for “conversion or transformation” (which is held dear by many religious and social groups in our country) and to become a contributing and productive member of society.
D. RECOMMENDATIONS.
1. The death penalty should be abolished.
2. The opportunity for parole or sentence reduction, based on demonstrated rehabilitation, should be a recognized right for all prisoners, including those with a life sentence (in accord with the Rome Statute of the International Criminal Court).
VIII. LIFE WITH PAROLE
A. RELEVANT HUMAN RIGHTS
1. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD):
Article 2: 1(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.
2. International Convention on Civil and Political Rights (ICCPR):
Article 10.3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.
B. ANALYSIS
1. In five states-Alabama, California, Massachusetts, Nevada, and New York-at least 1 in 6 people in prison are serving a life sentence.
2. The highest proportion of life sentences relative to the prison population is in California, where 20% of the prison population is serving a life sentence, up from 18.1% in 2003. Among these 34,164 life sentences,
3. There are 6,807 juveniles serving life sentences;
4. There are 4,694 women and girls serving life sentences.
5. Life in prison is the most severe punishment available for juveniles. Every state allows for life sentences for juveniles, and 46 states hold juveniles serving such terms. Juveniles serve life sentences in nearly every state, but more than 50% of the national population is located in five states: California (2,623), Texas (422), Pennsylvania (345), Florida (338), and Nevada (322).
6. In 1967, the President’s Crime Commission recommended that parole boards be staffed by correctional professionals rather than political appointees. However, parole boards remain the domain of political appointees and two-thirds of states lack any standardized qualifications for service. This has resulted in a highly politicized process that too often discounts evidence and expert testimony. In the case of life sentences with the possibility of parole, the range of time that must be served prior to eligibility for release varies greatly, from under 10 years in Utah and California to 40 and 50 years in Colorado and Kansas. The median length of time served prior to parole eligibility nationally is in the range of 25 years. However, eligibility does not equate to release and, owing to the reticence of review boards and governors, it has become increasingly difficult for persons serving a life sentence to be released on parole.
C. VIOLATIONS.
1. Racial and ethnic minorities serve a disproportionate share of life sentences. Two-thirds of people with life sentences (66.4%) are nonwhite, reaching as high as 83.7% of the life sentenced population in the state of New York. Seventy-seven percent of juveniles sentenced to life are youth of color. This violates the ICERD Article 1-1, Article 2–1, and Article 5(a).
2. There is a broad range in the severity and implementation of the statutes and arbitrary mechanisms for release on parole. This violates the ICCPR Article 10-3.
D. RECOMMENDATIONS
1. Restore the Role of Parole
The opportunity for parole, based on demonstrated rehabilitation, is a right for all, including those with a life sentence. Parole boards should be staffed with members who have a background in corrections or relevant social services in order to best assess suitability for release. They should also use risk-based release polices that consider a range of static and dynamic factors including criminal history, offense severity, prison disciplinary record, and program participation while incarcerated. An example may come from Canada, where all persons serving life are considered for parole after serving 10 to 25 years. In the interest of public safety, some individuals sentenced to life will serve the remainder of their natural lives in prison. However, this reform would provide that a decision on release be made by a professional parole board at the time of eligibility, taking into account a person’s prospects for a successful transition to the community.
2. Prepare Persons for Release From Prison
The emergence of reentry as a criminal justice policy issue in the last decade has largely ignored persons serving a life sentence. Typically, reentry programs are provided to persons within 6 months of their release date and offer transition services in the community upon release. However, for persons serving a life sentence, their release date is not fixed and they are often overlooked as policymakers and correctional administrators consider reentry strategies. Additionally, persons serving a life sentence have unique reentry needs based upon the long duration of their prison term. The failure to design reentry strategies for persons serving a life sentence neglects 1 in 11 persons in prison by denying them the opportunity to participate in valuable programming. Reentry and reintegration principles must be extended to persons serving a life sentence. Correctional programs can contribute to a successful release and persons serving life should be encouraged to access the types of services that will help them transform their lives and improve their presentation before the parole board.
IX. MENTALLY ILL IN PRISON
A. RELEVANT HUMAN RIGHTS
1. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states: No one shall be subject to torture, or to cruel, inhuman, or degrading treatment or punishment.
2. Article 1 of the Convention Against Torture and Other Cruel, Inhuman, or degrading Treatment or Punishment (CAT): “severe pain or suffering, whether physical or mental,…intentionally inflicted...for an act he or a third person has committed.”
B. ANALYSIS
1. There is now a huge population of mentally ill persons in our prisons and jails. The American Correctional Association has recognized that holding mentally challenged individuals in isolation can exacerbate their problems and bring about additional mental problems. Several federal courts have found that the conditions of confinement in isolation units can constitute cruel and unusual punishment which is prohibited by Article 7 of the ICCPR.
2. It would also qualify as torture defined in the CAT, Article 1, if correctional officials knowingly place mentally ill persons in disciplinary units.
3. Prisoners, who are seriously mentally ill, fall under the protection of the Americans with Disabilities Act, 1990. This act was amended to include serious mental illness as a disability in 2008 and enacted January 2009 to state: (1) Mentally ill people have the rights to accommodation plans to meet the needs of their disability, (2) They have the right to have access to an (ADA) representative to oversee Correctional Institutions compliance.
C. RECOMMENDATIONS
1. Ensure that mentally Ill prisoners are treated in accord with their lack of culpability, lack of awareness and impaired judgment due to their disabilities. Ensure that consideration is given for any adverse affects that certain psychotropic medications could cause to the mentally ill prisoner both physically and mentally. Ensure that the Americans with Disabilities (ADA) Title II, Federal Regulation is recognized and complied with by all Correction facilities.
2. Approve OPCAT (the Optional Protocol to the Convention Against Torture) to monitor for abuse in places of detention. Appoint nationally recognized experts on mental health issues such as: The Bazelon Law Center, Treatment Advocacy Center, National Disability Rights Network and National Association of Mentally Ill (NAMI) to a National Oversight Committee to establish National Standards and Guidelines for the treatment of mentally ill prisoners.
3. Ensure that mentally ill prisoners are not placed in extensive isolation and receive professional
treatment. Ensure that emotionally disturbed persons are not placed in isolation without a qualified
examination for mental illness.
4. Expand community based mental health services and develop therapeutic units within the prisons to
handle the mentally ill in an appropriate setting.
X. PRIVATE PRISONS
A. RELEVANT HUMAN RIGHTS and VIOLATIONS
International Covenant on Civil and Political Rights
1. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (See also: Universal Declaration of Human Rights, Article 5).
Violation. – Little is more degrading than for prisoners to be treated as commodities, to be warehoused in for-profit private prisons like chattel. Private prison companies view prisoners as investments, not people; the privatization of prisons for profit is equivalent to the privatization of prisoners for profit, which is demeaning to their humanity and dignity as human beings. The United States holds over 128,000 prisoners in privately-operated for-profit prisons.
2. Article 8, Sec. 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. (see also: Universal Declaration of Human Rights, Article 4).
Violation – Private prisons operate on a per-diem payment system, where they are paid per prisoner per day they are incarcerated. This mirrors the system of slavery, which also is a for-profit enterprise that involves imprisoning people against their will. Private prison companies are modern-day extensions of the slave trade, in which prisoners are used to generate profit. The largest private prison companies in the United States are listed on the stock exchange, and the trade in prisoners for profit has become an acceptable form of legitimized slavery.
3. Article 10, Sec. 3. The Penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.
Violation – The objective of private prison companies is to generate profit, not to reform or rehabilitate prisoners. Such companies have a duty to their shareholders to make money; they do not have a duty to help prisoners better their lives. Studies have shown that prisoners held in private prisons in the United States have higher recidivism rates than those in public prisons.
B. RECOMMENDATIONS:
The for-profit private prison industry, by its nature, is antithetical to the principles expressed in the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. Therefore, it is recommended that for-profit privately-operated prisons be proscribed by the United States in compliance with its obligations under those documents.
XI. TELEPHONE SERVICE IN PRISONS
A. RELEVANT HUMAN RIGHTS
Article 22 of the International Convention on Civil and Political Rights states, “Everyone shall have the right to freedom of association with others…. “
B. ANALYSIS:
Incarcerated persons and their loved ones should have access to technology that will facilitate cost-effective communication. They should be able to communicate with each other, as long as there is no risk to security. One very effective tool for preventing torture and abuse is to ensure that vulnerable, confined persons have ready access to persons who are not confined.
C. VIOLATIONS:
In far too many jails and prisons in the United States, the rates charged to inmates for making telephone calls are much higher than comparable rates for calls placed by persons not incarcerated and much higher than the actual cost of providing the inmate calling service. There are several reasons for those high charges:
Commissions paid by the phone company to the jail, prison system, or other governmental entity.
Refusal to provide the less expensive debit or prepaid call option.
Surcharges required by some phone companies for processing an advance payment.
Denial of access to less expensive technologies by blocking inmate calls to cell phones or VoIP services.
Such practices limit the communication between incarcerated persons and their loved ones. It is not unusual for persons who are incarcerated for lengthy periods to lose contact with family members entirely. In some cases, these practices also limit one’s access to an attorney.
While security concerns and their associated costs are sometimes cited as a rationale for these policies, the fact is that there are jails and prisons that provide calls at reasonable rates, allow less expensive debit calls, and allow calls to cell phones and VoIP phones – all without compromising security.
D. RECOMMENDATIONS:
Prevent commissions paid by phone companies to governmental units.
Provide the less expensive debit calling option for all persons incarcerated.
Eliminate all surcharges.
Allow calls by inmates to outside cell phones and VoIP phones.
If necessary, set benchmark per-minute rate limits on all phone calls.
Phone contracts in private correctional facilities should not cost more than the cost in the state’s public facilities.
XII. SLAVERY, FORCED LABOR, AND WORK IN PRISONS
A. RELEVANT HUMAN RIGHTS
1. Article 10.3 of the International Covenant on Civil and Political Rights (ICCPR): “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”
2. Article 5, Universal Declaration of Human Rights, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
3. Articles 22, 23, and 24, Universal Declaration of Human Rights, provide that “Everyone, as a member of society, has the right to social security…the right to work, to free choice of employment, to just and favorable conditions of work…to equal pay for equal work…to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity…the right to form and to join trade unions.”
B. ANALYSIS.
Productive work, that develops good work habits and skills for economic survival, and enables economic support for and relations with family, is a cornerstone of the rehabilitation process.
C. VIOLATIONS.
1. Article 5, UDHR: Wherever in the United States punishment for incarcerated persons’ refusing to work results in segregation or solitary confinement, in withholding of food or access to basic support or human interaction, violations occur.
2. Although the ICCPR excludes from “forced labor” “any work…required of a person who is under detention in consequence of a lawful order of a court,” (Article 8(3c)), slave labor or denial to incarcerated persons access to remunerative work sufficient to support oneself and ones’ family are rarely a consequence of any criminal sentence or court order, making all cases in which either slave or forced labor, absent sentence or court order, a violation of human rights with respect to incarcerated persons.
3. Articles 22, 23, and 24, UDHR: By law and custom, US incarcerants earn extremely little or no wages and are excluded from civilian labor force participation, impoverishing themselves and their families. United States’ Prison labor frequently denies incarcerated persons any choice in prison work assignments, affords neither employer nor worker investment in Social Security, pays in gratuities only a fraction of that required for “equal pay,” far below even minimum amounts, ensuring poverty for the incarcerated and his family, and denying incarcerated workers any union or participatory rights whatsoever.
D. RECOMMENDATIONS.
1. Respecting the right of incarcerated persons to access to remunerative employment sufficient to human dignity and at least partial support of oneself and family.
2. Preserving and propelling, wherever possible, offenders’ access to the legal labor force, normal investment in social security and health insurance programs, and participation in workplace trade unions.
3. Segregation or solitary confinement as well as denial of food or basic support solely for refusal to accept a work assignment should cease. Wherever possible, incarcerated persons should be afforded both influence and choice in work assignments. Appropriate impartial hearings should be available before any sanctions are applied.
4. Limiting slavery and forced labor to those instances in which either forced labor or slavery are required by terms of a criminal sentence.
XIII SEX OFFENDERS
A. RELEVANT HUMAN RIGHTS
1. Article 7 of the International Covenant on Civil and Political Rights states: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”
3. Article 17 states: “No one shall be subjected to arbitrary or unlawful interference with his privacy, home, or correspondence, nor to unlawful attacks on his honor and reputation.”
B. ANALYSIS.
1. Bureau of Justice Statistics show that within 3 years following their 1994 state prison release, only 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime.
2. Other BJS surveys have shown that 70 percent of all men in prison for a sex crime were men whose victim was a child. In almost half of the child-victim cases, the child was the prisoner’s own son or daughter or other relative.
C. VIOLATIONS.
1. Many states are broadly implementing arbitrary residency restrictions where a person with a sex offense may live. This often banishes such persons to outlying or rural locations which makes it difficult to reach job centers and public transportation. This can disrupt community involvement of the banished persons and prevent families from living together and developing solid relationships. Similarly, sex offenders are arbitrarily restricted from placement in halfway houses, thus obstructing their recovery and re entry as more productive citizens. In general, there are inadequate safeguards against unnecessary abuse.
2. Civil commitment is used by numerous states to detain a person convicted of a sex offense at the completion of the prison sentence, based on the premise the person may re-offend. The extended time was not meted out by the court at the time of sentencing. Committees arbitrarily determine if a person will be held. Though the Supreme Court has judged this is not additional punishment, it leads to an arbitrary violation of the person’s rights, with inadequate safeguards against abuse.
D. RECOMMENDATIONS.
1. Criminal justices' current efforts to respond to sex abuse issues is primarily punishment and tracking. Neither include evidence-based treatment and change that has been shown to be effective in most cases. Further research and analysis is needed to better identify and quantify those therapies that are most effective.
2. An approach with more prevention and control as the focus should be implemented:
a) Utilize funding for successful, evidence-based, therapy practices for those who have abused, using money previously spent on ineffective tracking methods and realigned confinement sentences.
b) Funding should go to intervention assistance with family services and child services where known dysfunctional family history is known to have led to abuse.
c) Education to families on the actual dangers of sex abuse - within the circle of their own friends, acquaintances and family- can give young people tools to be safe.
Allen J. Beck & Paige M. Harrison, Bureau of Justice Statistics, Sexual Victimization in State and Federal PrisonsReported by Inmates, 2007 (2007).
Allen J. Beck & Paige M. Harrison, Bureau of Justice Statistics, Sexual Victimization in Local Jails Reported by Inmates, 2007 (2008).
Sentencing Project Report 2009-“ No Exit|The Expanding Use Of Life Sentences In America”
ibid.
More than half of all prisoners, including jail inmates, are mentally ill. Bureau of Justice Statistics, U.S. Dept of Justice, Mental Health Problems of Prison and Jail Inmates, at 1 (2006). REPORT,American Bar Association- Criminal Justice Section, Robert M.A. Johnson, Chair, Criminal Justice Section, February 2007.
ACA Standard 4-4256.
Jones EI v. Barge, 2001; Ruiz v. Johnson, 1999; Madrid v. Gomez, 1995.
Confronting Confinement, A Report of the Commission on Safety and Abuse in America's Prisons, Katzenbach and Gibbons,Vera Institute 2006.
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=497
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