Torture in the United States, pt 5
In addition to the discomfort resulting from the minimal physical structure, complaints included poor food, filthy clothing, lack of heat, insect-infested bedding, no access to the outdoors or sources of natural light indoors, lack of exercise, poor translation services and theft of personal belongings by facility staff. Detainees were shackled to tables and chairs when conferring with their attorneys or receiving visitors. Allegations of physical and verbal abuse from guards were common, especially against detainees who could not speak English. A Sudanese asylee, who had been detained in the center for several months, told one news reporter, 'In the seven months that I was there, I was never outside, not once, and the food is not enough for a human being.' Two anonymous immigration officials described Esmor as "a disaster waiting to happen, a place where no one should have had to stay more than a few weeks but where people stayed for months."(96)In May 1995, prior to the June disturbance, the INS began investigating the Esmor facility and issued an Interim Report in February 1996. With regard to "detainee welfare" the report stated that "complaints of verbal abuse and general disrespect by Esmor personnel towards detainees, visitors and attorneys were credible and that such actions were common on all shifts."(97) Further, occurrences of physical abuse "were not caused by uncontrollable or spontaneous anger on the part of Esmor guards... [but]... were part of a systematic methodology designed by some Esmor guards as a means to control the general detainee population and to intimidate and discipline obstreperous detainees through the use of corporal punishment."(98) The report also confirmed the routine engagement by the Esmor staff in such policies as use of leg restraints on every detainee to prevent escape during visitation and hearings; charging detainees for lost items supplied by Esmor such as eating utensils, clothing, drinking cups, etc.; and placing detainees into administrative segregation without a charging document.(99)
Further, female detainees who were menstruating were denied sanitary napkins by Esmor personnel.(100) A female detainee from Togo who was held at Esmor and recently was granted asylum after more than a year of incarceration, made the following sworn statement regarding the conditions of the facility:
When I arrived, I was put in a very big room with two toilets, two sinks and a bench which wrapped around the room. The room was very cold. There were no windows except a small one in the metal door. I was told to take off all of my clothes. This was the first time in my life that I had to undress in front of a complete stranger. I was menstruating so I asked the guard if I could keep on my underwear. The guard said no. I asked if I could throw away my sanitary napkin. The guard appeared angry and told me that she did not have time for me, that she wanted to go home and that, for all she cared, I could eat the napkin. I could see my clothes lying on the floor outside the room through the small window in the door. I was freezing. I was scared. There was nothing that I could do. A male officer stood at the door, looking at me through the glass. I was still naked and sitting on the toilet. I was so embarrassed that I put my head on my knees to cover myself up. He brought me two slices bread and some milk. I was very hungry since I had not eaten since the trip on the airplane. However, after I drank the milk, I felt ill, and vomited in the toilet. A female officer then came in and took me to the next room, where she told me to shower. The water was so cold that I jumped out of the shower. The officer said that she would force me to shower if I did not do so on my own. So, I showered in the cold water. The female officer brought me some clothes. She brought me underwear that were much too big for me. The only way to keep them from falling down was to tuck them into the belt from Togo which I wear around my waist called a beas. I could tell the underwear was used since it was stained. The officer also brought me a bra. The bra was too small. I could not even fit it around my chest. The hooks to fasten the back together were broken so that even if it had fit, I could not have closed it.... I was given a blue uniform and used, dirty socks. The guard handed me two plastic sandals which were too big for me and which were both for the right foot.... I had to wear the sandals both made for the right foot during my entire stay at Esmor. I still had not received a sanitary napkin.It is important to remember that this was a refugee who had committed no crime, and who was granted asylum after 16 months imprisonment under these conditions. When she attempted to follow her Muslim religious practices by washing herself at sunrise prior to praying:
The officer then tried to put an ID bracelet around my wrist using pliers. When she struck my skin with the pliers, I screamed from pain and told the officer she had hurt me. I was crying.... I had been crying since I was first handcuffed and shackled. I was so scared. I had no idea what was happening to me. I just wanted to be protected, but instead, I felt like I was being punished when I had done nothing wrong.
The officer again told me I could not use the shower until 6:00 a.m. I tried to explain that I was just washing myself off so that I could pray. I even had my clothes on. I told her that I was following the rules of my religion. The officer, however, reported me to the supervisor. That morning, I was put into isolation, which the people at Esmor called BAU. I stayed alone in a small cell with only a toilet, a sink and a bed for five days. I could not shower while I was there. Food was pushed under the door to my cell. After four days of isolation, I was finally taken before a judge at Esmor. The judge explained that I was told not to use the water before 6:00. Since I did it again, I would need to stay in isolation for a total of five days. I was never given a chance to explain my side of the story. I was locked up alone when all I was doing was trying to pray.(101)Finally, with regard to medical treatment, the INS detainee stated that:
I received medical assistance a few times while I was at Esmor. Once I saw the doctor because I had huge boils all over my legs and buttocks. I went to the doctor and he drained them. One was very big and painful and I was given tylenol for that one. Another time, I saw the doctor because every time after I showered, my skin would itch so badly that I often could not sleep. When I asked the doctor what could be done to stop the itching, he told me to only shower once a week. When I told him it itched so much that I often could not sleep at night, he told me to just read my Bible when that happened. He told me that any medicine he would give me which would stop the itching would cost too much and that he would be fired for giving it to me.(102)With regard to the physical conditions, the INS report on Esmor cited dormitories with insufficient access to natural light, no natural light in the segregated area, no writing areas or chairs available in segregation area, inadequate medical care, inadequate privacy in toilet areas of some dormitories, and lack of privacy in female dormitories and showers.(103)
Importantly, the report documented numerous problems relating to the lack of oversight by INS of the Esmor facility, and that this deficiency contributed significantly to the problems of the facility. Problems contributing to the absence of proper monitoring of detention facilities by the INS included, among other things, frequent INS staff changes, lack of follow-up regarding problems at the facility, lack of written records of follow-up, lack of reporting by Esmor, lack of experience of INS officers charged with monitoring the facility, and barriers to access to attorneys.(104)
V. POLICE BRUTALITY
Significant problems continue to exist in the U.S., particularly at the state and local levels, regarding ill-treatment of persons in police custody. According to Amnesty International, instances of police brutality are particularly prevalent in metropolitan police departments such as those in New York City and Los Angeles.(105) Citing cases such as that of Rodney King in Los Angeles and those uncovered by the Mollen Commission in New York City, Amnesty cites such problems as use of excessive physical force, and inappropriate use of police weapons such as batons, pepper spray and firearms.(106) The Washington D.C. Metropolitan Police Department also has been cited as having serious problems regarding the excessive use of force.(107) Among the most recent examples of police brutality was the sexual and physical assault on Abner Louima by the New York City Police officers who beat Mr. Louima and rammed the handle of a toilet plunger into his rectum in August 1997, causing severe internal injuries. Four police officers are awaiting trial on federal assault charges as a result of this brutal attack.
At the federal level, the misuse of force by the federal government against alleged separatist groups, such as Randall Weaver and his family, and members of religious cults, such as the Branch Davidians, recently was the subject of Congressional hearings.(108)
1. United Nations Commission on Human Rights, Report of Special Rapporteur on Torture, E/CN.4/1996/35, 9 January 1996, pp. 39-40.
2. Human Rights Committee, General Comment 7, 16th Session, 1982, included in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Document HRI\GEN\1\Rev. 1, 1994, at p. 7.
3. Human Rights Committee, General Comment 20, 44th Session, 1992, included in Compilation of General Comments and Recommendations, cited in endnote 2, supra.
4. Id. at para. 5.
5. Id. at para. 6.
6. U.N. Doc. A/35/40, at 114 (cited and discussed in Dominic McGoldrick, The Human Rights Committee at 365 (2nd ed. 1994).
7. Dominic McGoldrick, The Human Rights Committee at 367-68.
8. U.N. Doc. A/35/40, at 114 (cited and discussed in McGoldrick, supra note 7, at 368).
9. McGoldrick, supra note 7, at 368.
10. Id. at 372.
11. 25 Eur. Ct. H.R. (Ser. A) (1978). See 1 Vincent Berger, Case Law of the European Court of Human Rights 86 (1989).
12. Id. at 88.
13. Tyrer Case, 26 Eur. Ct. H.R. (Ser. A) (1978) para. 29-33.
14. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report of the Senate Committee on Foreign Relations, S. Exec. Rep. No. 30, 101st Cong., 2d Sess. at 17
15. Id. at Appendix A.
16. Committee to End the Marion Lockdown, From Alcatraz to Marion to Florence - Control Unit Prisons in the United States (1992) (available via the Internet at
17. Amnesty International, United States of America - Human Rights Violations: A Summary of Amnesty International's Concerns at 14 (1995) (hereinafter Amnesty Report I) (available via the Internet on the world wide web at the Amnesty International Home Page).
18. Joint Working Group of Non-Governmental Civil, Political and Human Rights Organizations in the U.S., The Status of Human Rights in the United States: An Analysis of the Initial U.S. Government Report to the Human Rights Committee of the United Nations under the International Covenant on Civil and Political Rights 28 (1995) (hereinafter U.S. NGO Working Group Report).
19. 889 F. Supp. 1146 (N.D. Cal. 1995).
20. Amnesty Report I, supra note 17, at 13-14. See also Holly J. Burkhalter, Torture in U.S. Prisons, The Nation 17 (July 3,1995); Paige Bierma, Torture Behind Bars: Right Here in the United States of America, The Progressive 21 (July 1994).
21. See Amnesty International, USA: Conditions for Death Row Prisoners in the H-Unit, Oklahoma State Penitentiary (1994).
22. Amnesty Report I, supra note 17, at 17.
24. U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663c, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957, amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977), Rule 10,11.
25. Amnesty Report I, supra note 17, at 17.
26. Id. at 16.
27. 'Modules' or 'Cages'? TSP Enclosures Stir Protest, The Times (Trenton), Aug. 17, 1991, at A1.
28. Letter from Deval L. Patrick, Assistant Attorney General for Civil Rights to Parris N. Glendening, Governor of Maryland regarding Notice of Findings of Investigation: Maryland Correctional Adjustment Center, May 1, 1996, at 9-10.
29. Id. at 10.
31. Letter from Stuart M. Nathan, Assistant Attorney General for the State of Maryland and Stephanie Lane-Weber, Assistant Attorney General for the State of Maryland to Deval L. Patrick, Assistant Attorney General for Civil Rights regarding DOJ Investigation into the Maryland Correctional Adjustment Center (MCAC), June 19, 1996, at 1.
32. Id. at 2.
33. See Crime in America: Violent & Irrational -- and That's Just the Policy, The Economist 23-25 (June 8, 1996). See also, National Council on Crime and Delinquency, District of Columbia Department of Corrections Study: Final Report (January 1996); Amnesty Report I supra note 17; Amnesty International, 1995 Report on Human Rights Around the World 302-02 (1995) (hereinafter Amnesty Report II); Human Rights Watch, World Report 1996 321-28 (1996); Paula Mergenhagen, The Prison Population Bomb, American Demographics 36 (Feb. 1996); Joan Petersilia, A Crime Control Rationale for Reinvesting in Community Corrections, Spectrum: The Journal of State Government 16 (June 22, 1995); Without the "Rock," Florida Prisoners get the Hard Place, Wash. Post, Oct. 30, 1994 at A1; Making Hard Time Harder, States Cut Jail TV and Sports, N.Y. Times, Sept. 17, 1994, at 1.
34. "Prison and Jaili Inmates at Midyear 1997," Bureau of Justice Statistics, US Department of Justice, Jan. 1998.
35. See U.S. NGO Working Group Report, supra note 18, at 26; Human Rights Watch, World Report 1996 at 322 (1996).
36. Id. At 25-26.
37. Id at 26-27.
38. Pub. L 104-134
39. Mergenhagen, supra note 33.
40. Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 (1991); Farmer v. Brennan, U.S., 114 S.Ct. 1970 (1994).
41. See David M. Siegal, Rape in Prison & AIDS: A Challenge for the Eighth Amendment Framework of Wilson v. Seiter, 44 Stan. L. Rev. 1541, 1551-78 (1992).
42. 91 -Civ-0176-LDW (E.D.N.Y.).
43. IP95-0205C (S.D. Ind.).
44. Note 34 Supra.
46. Id. at 29.
48. California Women Prisoners Sue Over Deficient, "Life Threatening" Medical Care, ACLU of Northern California Press Release 1 (April 4, 1996) (hereinafter ACLU Press Release). See Shumate v. Wilson, NO. Civ. 5-95-619 WBS JFM (N.D. Cal.).
49. Id. at 2-3.
51. See U.S. NGO Working Group Report, supra note 18, at 26.
52. Monitor radio (Public Radio International), Mid-Day Edition, June 24, 1996. The bills do not propose mixing adult and juvenile populations.
55. Juvenile Offenders & Victims: A Focus on Violence, OJJDP Statistics Summary 1-4 (May 1995).
57. Paula Mergenhage, The Prison Population Bomb, American Demographics 36 (Feb. 1996).
58. United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Conditions of Confinement: Juvenile Detention and Correctional Facilities -- Research Report Executive Summary-5 (1994).
60. Human Rights Watch, World Report 1996 321-28 (1996).
61. Id. at 341.
62. Jonathan Smith, Overview of the Crisis in the District of Columbia's Correctional System, in Washington Legal Clinic for the Homeless, Cold, Harsh and Unending Resistance: The District of Columbia Government's Hidden War Against its Poor and its Homeless 279-318 (1993).
63. In Re Savoy, 98 D.W.L.R. 1937 (D.C. Juv. Ct. Oct. 13,, 1970).
64. See Jerry M. V. District of Columbia, C.A. No. 1519-85 (D.C. Super. Ct.), certain memorandum orders aff'd in part and rev'd in part, 521 A. 2d 178 (D.C. 1990).
65. Elizabeth M. Brown & Anne R. Bowden, Juvenile justice, in Washington Legal Clinic for the Homeless, supra note 63, at 255-76. See Jerry M. V. District of Columbia, C.A. No. 1519-85 (IFP), Thirtieth Report of the Monitor (Nov. 20, 1995).
66. Jerry M. V., District of Columbia, C.A. No. 1519-85 (IFP), Thirty-first Report of the Monitor (Feb. 26, 1996), at 19.
67. National Institute of Justice, Boot Camps for Juvenile Offenders (1996).
68. Steven Donzinger, The Prison Industrial Complex: What's Really Driving the Push to Lock 'Em Up, Washington Post, March 17, 1996, at C3; But see John J. DiIulio, Jr., No Angels Fill Those Cells: The Numbers Don't Lie: It's the Hard Core Doing Hard Time, Washington Post, March 17, 1996, at C3.
69. Donzinger, supra note 69.
70. United States Department of Justice, Immigration and Naturalization Service, the Elizabeth, New Jersey Contract Detention Facility Operated by ESMOR Inc. Interim Report 5 (Feb. 1996).
71. Donzinger, supra note 69.
72. Privatizing America's Prisons, Slowly, N.Y. Times, Aug. 14, 1994, at $3, at 1 ("Not Everybody is Corrections Corporation," said John J. DiIulio Jr., a professor at Princeton University. "I'm worried about the fly-by-night companies.")
73. Id. See also, Crime in America: Violent and Irrational -- and That's Just the Policy, supra note 34, at 25.
74. Reese Erlich, Prison Labor: Workin' for the Man, Arm the Spirit (available via the Internet at http://burn.ucsd.edu/~ats).
76. Chain Gangs : Alabama Brought it Back. Now California Considers Adopting the Old Prison Practice Some Think Is Just and Some Consider Humiliating, San Diego Union-Tribune, Feb. 25, 1996, at A1; Working on the Chain Gang, in Wisconsin?, Capital Times (Madison), Sept. 4, 1995, at 1A.
77. Link to the Past: the Return of Chain Gangs is Not About Hard Labor. For Alabama, It's Good PR In a Crime-Weary World. For Inmates, It's Humiliation That Weighs Heavier Than Leg Irons, L.A. Times, Jan. 8, 1996, at E1.
80. Id. See also Tourists, Other States Curious About Alabama Chain Gangs; But Some Critics Say Humiliation Won't Help Rehabilitate Inmates, Chicago Tribune, May 10, 1996, at 10.
81. Link to Slavery: Chain gangs Inhumane and Offensive, Critics Charge, Arizona Republic (Phoenix), May 29, 1995, at A1.
82. Women's Commission for Refugee Women and Children Delegation to Visit Asylum Seekers Held in York and Berks County Prisons, Pennsylvania, An Uncertain Future, A Cruel Present: Women in INS Detention at 2 (Sept. 1995).
83. Id. at 7.
84. Id. at 8.
85. Id. (citing interviews with J. Scott Blackman, INS District Director, and Tom Hogan, Warden, York County Prison).
86. Id. at 11.
89. Id. at 12. See Lian Ying Li v. Blackman, Civ. No. 1:CV-95-1520 (M.D. Pa.).
91. Id. at 13.
93. Id. at 13-15.
94. Id. at 19.
95. Id. at 2-3 (citing Illegal Aliens Overrun a Jail in New Jersey, N.Y. Times, June 19, at A1).
96. Id. at 3.
97. United States Department of Justice, supra note 71.
99. Id. at 8.
100. United States Department of Justice, supra note 71, at 6.
101. Kasinga v. Blackman, Civ. No.-____ (M.D. Pa. 1996), Petition and memorandum for Writ of Habeas Corpus, Exh. 3 Affidavit of Fauziya Kasinga, at 3.
102. Id. at 4.
103. Id. at 26.
104. Id. at 33-40.
105. Amnesty Report I, supra note 17, at 5-11.
107. See D. Tillotson, ... And A Little Fear of Punishment, Washington Post, Jan. 9, 1994. See generally, U.S. Comm'n on Civil Rights, 1 Racial and Ethnic tensions in American Communities: Poverty, Inequality and Discrimination -- The Mount Pleasant Report (1993) (analyzing racial and ethnic tensions in the District of Columbia).
108. Amnesty Report I, supra note 17, at 11-12.
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