Torture in the United States, pt 2
The gist of the position taken by the U.S. government in its November 21, 1995 submission to the U.N. Special Rapporteur on Torture, and its 1995 report to the Human Rights Committee under the Covenant on Civil and Political Rights, is that adequate legal protections exist under domestic law to prevent abusive practices in prisons. For example, the government has contended that:"The Constitution and laws of the United States and those of its constituent states prohibit torture and any form of cruel and unusual punishment, .... [protect] every individual's right to bodily integrity and security of the person, .... [and provide] numerous judicial, administrative and other remedies and avenues of recourse for individuals [claiming violations].(1)It is true that U.S. laws do provide a number of essential protections against abuses in the criminal justice system, that the government and the courts have taken action to prevent or punish prohibited conduct in a number of instances, and that some aggrieved victims of abusive treatment at the hands of law enforcement authorities have been able to obtain redress. But the extensiveness of the violations that currently are being reported and documented suggest that these legal protections and avenues for obtaining relief are far from adequate, and that a pattern and practice of significant abuses continues to exist, requiring more substantial remedial action than the government has taken to date.
To make matters worse, the likelihood of violations is increasing because of a number of recent initiatives by the U.S. Congress to reduce the ability of victims to use the federal courts to obtain effective judicial review and relief. In addition, the increasing fear of crime in American society has been used as a justification for law enforcement and prison authorities to initiate or substantially expand the use of prisoner control and punishment techniques (such as "super-max" and control unit facilities and the reintroduction of the "chain-gang") that greatly increase the risk and likelihood that cruel and degrading treatment will take place.
I. RELEVANT CONVENTION PROVISIONS
Article 1 defines the prohibited conduct of torture and cruel and inhuman punishment as the intentional infliction of severe physical or mental pain and suffering, carried out by a public official or a person acting in an official capacity, for purposes of intimidation, obtaining a confession, administering punishment, or for any reason based on discrimination.
Article 10 requires each State Party to ensure that all law enforcement and criminal justice personnel responsible for custody, interrogation or treatment of any person subjected to any form of arrest, detention or imprisonment be educated and informed regarding the prohibition against torture and cruel and abusive punishment.
Article 11 requires each State Party to maintain rules, instructions, methods and practices governing interrogation, custody and treatment that prevents torture of persons subjected to arrest, detention or imprisonment.
Article 16 requires each State Party to prevent acts by public officials or persons acting in an official capacity that, while not constituting the most serious types of torture abuses, nevertheless amount to prohibited cruel, inhuman or degrading treatment or punishment.
Related standards binding on the U.S. appear in Articles 3 (right to life and security of the person), 5 (prohibition against torture) and 9 (prohibition against arbitrary arrest and detention) of the Universal Declaration of Human Rights; Articles 2 (nondiscrimination), 6 (right to life), 7 (prohibition against torture), 9 (right to security of the person) and 10 (requirement to treat detainees with humanity and dignity) of the International Covenant on Civil and Political Rights; and Articles 4 (right to life) and 5 (right to physical and mental integrity and freedom from torture) of the American Convention on Human Rights.
In addition, the Standard Minimum Rules for the Treatment of Prisoners contain a number of guarantees and standards setting out generally accepted principles for the treatment of detainees and the conditions to be maintained in correctional facilities.
Some additional guidance and explanations of the meaning and application of these requirements have been provided by the Human Rights Committee of the United Nations in connection with its responsibilities to supervise compliance with the International Covenant on Civil and Political Rights and its provisions relating to torture. In General Comment 7, the Committee acknowledged, as is particularly relevant to the situation in the U.S., that "the scope of protection required goes far beyond torture as normally understood."(2) In General Comment 20, the Committee, while it declined to draw up a detailed "list of prohibited acts," or to explain the nature of possible "distinctions between the different kinds of [prohibited] punishment or treatment,"(3) did indicate that the prohibitions covering cruel and inhuman treatment included such types of conduct as excessive "punishment for a crime, or as an educative or disciplinary measure,"(4) as well as "prolonged solitary confinement."(5)
These general interpretations were given more specific application and meaning by the Committee in the context of a number of concrete cases. In Ambrosini v. Uruguay,(6) the Human Rights Committee found a violation of Article 7 where the complainant "was held incommunicado in an unidentified place, confined with four other political prisoners in a cell measuring 4.2 by 2.5 meters in conditions seriously detrimental to his health."(7) In Antonaccio v. Uruguay,(8) the Human Rights Committee expressed the view that there had been "violations of Article 7 and 10(1) [pertaining to treatment of persons deprived of their liberty] because [the complainant] was held in solitary confinement for three months in an underground cell, was subjected to torture over a period of three months, and was being denied the medical treatment his condition required."(9)
With regard to conditions of detention, treatment the Committee has found to be "inhuman" in violation of Article 7 have included:"Incommunicado detention in a small cell (1 m. by 2 m.) in solitary confinement for eighteen months; solitary confinement for several months in a cell almost without natural light; detention in a garage with open doors...; detention in overcrowded cells with 5 cm. to 10 cm. of water on the floor...; hard labour; and severe rationing of food."(10)The European Court of Human Rights also has provided some insight as to what acts constitute torture or inhuman treatment under Article 3 of the European Convention on Human Rights. In the case of Ireland v. United Kingdom,(11) the complainant was made to stand against a wall with his head hooded for many hours. The court held that such practices involved inhuman and degrading treatment, even though they did not involve "suffering of the particular intensity and cruelty ordinarily implied by the word torture."(12)
The European Court has held that application of three strokes of a birch rod to a juvenile male in the context of corporal punishment by an educational institution, while not inhuman, is "degrading."(13) It noted that the relevant factor in making such a determination is that the person is humiliated by the execution of a punishment, and that the humiliation or debasement exceeds the punishment usually associated with a conviction.
A. ATTEMPTED LIMITATIONS TO COVERAGE IMPOSED BY THE UNITED STATES GOVERNMENT
The United States has attached the following understanding regarding the definition of torture to its ratification of CAT:
That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.(14)This description of what constitutes prohibited conduct is more restrictive than the definition of torture and cruel and inhuman treatment outlined above.
Further, the United States made the following reservation regarding the relationship of Article 16 to relevant provisions of the United States Constitution:
That the United States considers itself bound by the obligation under Article 16 to prevent 'cruel, inhuman or degrading treatment or punishment,' only insofar as the term 'cruel, inhuman or degrading punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.(15)This reservation was specifically intended to prevent application of Article 16 to what has been referred to as the death row phenomenon (i.e., the detention of prisoners awaiting execution under very harsh and restrictive conditions). These provisions, along with similar reservations taken to the International Covenant on Civil and Political Rights, suggest that the U.S. government would prefer a more limited definition of torture and "cruel, inhuman or degrading treatment or punishment" than may be consistent with the one required under CAT. One important question that must be addressed is whether it is suitable and acceptable for the U.S. to seek to place these types of basic limitations on the application of CAT through unilateral understandings and reservations that reduce or undercut basic and essential elements of the treaty.
II. ABUSES INVOLVING SUPER-MAXIMUM AND CONTROL UNIT PRISON FACILITIES
Criminal justice policy in the United States increasingly has encouraged the use of so-called "control units," "security housing units," and "super maximum (or super-max)" units in state and federal prisons, as methods for controlling and punishing inmates. The difference in the way these terms are used is that super-max facilities are designed to house particularly dangerous criminals, or those committing certain offences while in prison. Confinement in super-maximum security status is considered part of their official punishment or sentence. Assignment to control or security housing units, on the other hand, while involving very similar types of high-security measures, such as permanent lock-downs and solitary confinement, takes place on an administrative basis within prisons, without any of the due process protections that exist when formal sentences or punishments are imposed through the judicial process. In other words, control units are administratively applied security measures, whereas super-max status normally involves judicially sanctioned punishment. In both cases, however, the type of treatment and conditions imposed frequently crosses the line involving abusive and inhuman punishment prohibited under CAT.
In addition to security considerations, budgetary concerns also have been among the factors encouraging greater use of control and super-max security methods. While it used to be the case that there was a higher ratio of staff to prisoners in high security facilities this is no longer true. Super-max and control unit facilities are cheaper to operate because it takes fewer guards to deal with prisoners kept in conditions of solitary confinement and permanent lock-down, which severely limit movement and access.
The term "control unit" was first coined at the federal penitentiary at Marion, Illinois in 1972 and has come to designate a prison or part of a prison that operates under a "super-maximum security" regime. Control unit prisons may differ from each other in some details but all share certain defining features:
- Prisoners in a control unit are kept in solitary confinement in tiny cells (six by eight feet is usual) for between twenty-two and twenty-three hours a day. There is no congregate dining, no congregate exercise, no work opportunities and no congregate religious services. Access to any facilities or social services is severely limited.
- These conditions exist permanently (as opposed to the temporary lockdowns that occur at almost every prison) and as official policy.
As of 1994, at least 36 states were reported to have constructed super-max units.(17) There is one federal super-max prison, located at Florence, Colorado(18) which assumed the operations of the former federal super-max facility at Marion, Illinois.
- The conditions in control units are officially justified not as punishment for prisoners but as administrative measures that are within the discretion of prison officials to impose without a hearing taking place. Since there are no rules governing such decisions (in contrast to formal punishments), prisoners are denied any due process and prison officials can incarcerate any prisoner in a control unit for as long as they choose, without having to justify their action.(16)
In January 1995, in Madrid v. Gomez,(19) a federal court in California found that conditions of the Security Housing Unit (SHU) at Pelican Bay State prison, operated by the California Department of Corrections, violated the constitutional rights of the prisoners in that facility. The 344 page opinion condemned what the court described as a pattern of brutality and neglect at Pelican Bay State Prison, California, a high security complex which opened in 1989. The ruling called upon the state to discontinue practices which included repeated assaults on prisoners; a pattern of punitive violence towards prisoners during "cell extractions" (the forcible removal of prisoners from cells); the punitive shackling of inmates to toilets or other cell fixtures; and grossly inadequate medical and mental health care. The ruling also found that guards resorted to the use of firearms too quickly and in circumstances that did not warrant the use of lethal force.
A number of individual cases of abuse were cited, including the case of Vaughn Dortch, a mentally disturbed prisoner who suffered third-degree burns over a third of his body after guards forced him, with his arms handcuffed behind his back, into a bath of scalding water. Another prisoner, Arturo Castillo, who refused to hand over his food tray, had a gas gun fired into his cell, and was knocked unconscious and beaten so severely that a piece of his scalp became detached. The judge found that the guards were rarely disciplined for excessive force and that their accounts of incidents were routinely accepted at face value, ignoring any other evidence. He also ordered the state to cease holding mentally ill prisoners in the prison's Security Housing Unit on the ground that their detention under control unit restrictions could exacerbate their condition.(20)
Amnesty International has documented similar highly abusive and inhuman conditions at other super-max and control unit facilities. The H-Unit at the Oklahoma State Penitentiary at McAlester was opened in 1991 to house prisoners in administrative or disciplinary segregation as well as the state's death row population.(21) Inmates are housed two to a small, windowless cell for all but five hours per week. Guards are isolated from inmates and serious health problems go untreated and inmate conflicts undetected. Opportunities for exercise and other types of programs were lacking. Some prisoners were reported to have become mentally ill while housed in the H-Unit, but received little or no psychiatric care.(22) Amnesty concluded that such conditions "amounted to cruel, inhuman or degrading treatment,"(23) and that these conditions also violated the United Nations Standard Minimum Rules for the Treatment of Prisoners(24) and the approved practices of the American Correctional Association.(25) Oklahoma authorities have not acted on any of Amnesty's recommendations to bring the facility into compliance.