The UN Committee against Torture released its report and there are some very interesting observations and recommendations in it regarding the treatment of prisoners. The full report is here and below are the sections relating to prisons.
Following the report, and related to it, is an article from a new ezine project called The Marshall Project. The article is about the Prison Rape Elimination Act that some folks in Congress are working to eviscerate. Kat will keep you posted on any moves that she hears about. We are going to have to raise our loudest voices to stop this bad move.
20. While noting that the State party has indicated that there is “no systematic use of solitary confinement in the United States”, the Committee remains concerned about reports of extensive use of solitary confinement and other forms of isolation in US prisons, jails and other detention centres for purposes of punishment, discipline and protection, as well as for health-related reasons. It also notes the lack of relevant statistical information available. Furthermore, it is concerned about the use of solitary confinement for indefinite periods of time, and its use against juveniles and individuals with mental disabilities. The full isolation for 22-23 hours a day in super-maximum security prisons is unacceptable (art. 16).
The state party should:
(a) Limit the use of solitary confinement as a measure of last resort, for as short time as possible, under strict supervision and with the possibility of judicial review;
(b) Prohibit any use of solitary confinement against juveniles, persons with intellectual or psychosocial disabilities, pregnant women, women with infants and breastfeeding mothers in prison;
(c) Ban regimes of solitary confinement such as those in super maximum security detention facilities;
(d) Compile and regularly publish comprehensive disaggregated data on the use of solitary confinement, including related suicide attempts and self-harm.
PROTECTION OF PRISONERS AGAINST VIOLENCE, INCLUDING SEXUAL ASSAULT
21. The Committee is seriously concerned at the widespread prevalence of sexual violence, including rape, in prisons, jails and other places of detention by staff and by other inmates. It also notes with concern the disproportionally high rates of sexual violence faced by children in adult facilities, as well as the higher rates of sexual victimization reported by inmates with a history of mental health problems and LGBTI individuals. While welcoming the promulgation in 2012 of the National Standards to Prevent, Detect, and Respond to Prison Rape under the Prison Rape Elimination Act (PREA), the Committee is concerned by reports that their implementation at the state level continues to be a substantial challenge. In this context, the Committee notes with concern that six states have not certified that they are in full compliance with PREA standards, and several agencies operating federal confinement facilities are still in the process of issuing their own PREA regulations.
The Committee remains concerned over the negative effects of the Prison Litigation Reform Act (PLRA) on the ability of prisoners to seek protection of their rights. While taking note of the changes introduced in 2013 in the PLRA (adding “the commission of a sexual act” as an alternative to physical injury to establish eligibility for compensation for emotional distress), the Committee considers that the State party has continued to place greater emphasis on the goal of curbing prisoner lawsuits at the expense of inmates’ rights. Thus, the Committee regrets that section 1997 e(e) requires a predicate of either “physical injury” or “the commission of a sexual act” as a prerequisite to obtaining compensatory damages for mental or emotional injury. It is concerned further at section 1997 e(a) of the PLRA, that requires prisoners to exhaust all internal complaint procedures before bringing an action in federal court, which implies that they have to meet applicable deadlines for filing the initial grievance and making administrative appeals.
Finally, the Committee notes that 19 states have enacted a statute restricting the shackling of pregnant inmates and that legislation has also been under consideration in a number of other states. It is nevertheless concerned at reports that in certain cases incarcerated women are still shackled or otherwise restrained throughout pregnancy and during labour, delivery, and post-partum recovery (arts. 2, 11, 12, 13, 14 and 16).
The Committee recommends the State party to increase its efforts to prevent and combat violence in prisons and places of detention, including sexual violence by law enforcement and penitentiary personnel and by other inmates. In particular, the State party should:
(a) Ensure that PREA standards or similar standards are adopted and implemented by all states, and that all federal agencies and departments operating confinement facilities propose and publish regulations that apply PREA standards to all detention facilities under their jurisdiction
(b) Promote effective and independent mechanisms for receiving and handling complaints of prison violence, including sexual violence;
(c) Ensure that any and all reports of prison violence, including sexual violence, are investigated promptly and impartially and that the alleged perpetrators are prosecuted;
(d) Ensure the use of same-sex guards in contexts where the detainee is vulnerable to attack, in scenarios that involve close personal contact or that involve the privacy of the detainee;
(e) Provide specialized training to prison staff on prevention of sexual violence;
(g) Develop strategies for reducing violence among inmates. Monitor and document incidents of violence in prisons with a view to revealing the root causes and designing appropriate prevention strategies;
(h) Authorize monitoring activities by non-governmental organizations;
(i) Amend sections 1997 e(a) and (e) of the Prison Litigation Reform Act;
(j) Revise the practice of shackling of incarcerated pregnant women, bearing in mind that the regime of the prison shall be flexible enough to respond to the needs of pregnant women, nursing mothers and women with children (see the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules, as adopted by the General Assembly in its resolution 65/229 of 21 December 2010, Rule 42.2)
DEATHS IN CUSTODY
22. The Committee notes with concern that 958 inmates died while in the custody of local jails during 2012, an 8 percent increase from the 889 deaths in 2010. During the same year State prison deaths remained stable with 3,351 reported deaths. The Committee is particularly concerned about reports of inmate deaths occurred as a result of extreme heat exposure while imprisoned in unbearably hot and poor ventilated prison facilities in Arizona, California, Florida, New York, Michigan and Texas (arts. 2, 11 and 16).
The Committee urges the State party to investigate promptly, thoroughly and impartially all deaths of detainees, assessing the health care received by inmates as well as any possible liability of prison personnel, and provide, where appropriate, adequate compensation to the families of the victims.
The State party should adopt urgent measures to remedy any deficiencies concerning the temperature, insufficient ventilation and humidity levels in prison cells, including death row facilities.
23. The Committee remains concerned at the notable gaps in the protection of juveniles in the State party’s criminal justice system. In particular, the Committee expresses once again its concern at the conditions of detention for juveniles, including their placement in adult jails and prisons, and in solitary confinement (art. 11 and 16).
The State party should take the necessary measures to ensure the proper functioning of the juvenile system in compliance with international standards. In particular, the State party should:
(a) Ensure full implementation of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, General Assembly res. 40/33 of 29 November 1985, annex) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines, General Assembly resolution 45/112, annex);
(b) Ensure that juvenile detainees and prisoners under 18 are held separately from adults, in line with the provisions of The Beijing Rules (rules 13.4 and 26.3), and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (General Assembly resolution 45/113 of 14 December 1990, rules 17, 28 and 29);
(c) Prohibit any use of solitary confinement against juveniles (see, para. 20);
(d) Resort more to alternatives to incarceration, taking into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules, General Assembly resolution 45/110, of 14 December 1990) and the Bangkok Rules.
LIFE-WITHOUT-PAROLE SENTENCES FOR JUVENILE OFFENDERS
24. While welcoming Supreme Court’s rulings in Graham v. Florida (2010) and Miller v. Alabama (2012), imposing limitations on juvenile life-without-parole sentences, the Committee remains concerned that some courts have ruled that Miller v. Alabama does not apply retroactively and that a majority of the 28 states that required mandatory life sentences without the possibility of parole for children have not passed legislation to comply with the ruling. Moreover, the rulings leave open the possibility of judges imposing life without parole sentences in homicide cases, even where the child played a minimal role, and courts continue to impose the sentence (art. 11 and 16).
The State party should abolish the sentence of life imprisonment without parole for offences committed by children under 18 years of age, irrespective of the crime committed. Enable child offenders currently serving life without parole to have their cases reviewed by a court for reassessment and resentencing, to restore parole eligibility and for a possible reduction of sentence.
EXCESSIVE USE OF FORCE AND POLICE BRUTALITY
26. The Committee is concerned about numerous reports of police brutality and excessive use of force by law enforcement officials, in particular against persons belonging to certain racial and ethnic groups, immigrants and LGBTI individuals, racial profiling by police and immigration offices and growing militarization of policing activities. The Committee is particularly concerned at the reported current police violence in Chicago, especially against African-American and Latino young people who are allegedly being consistently profiled, harassed and subjected to excessive force by Chicago Police Department (CPD) officers. It also expresses its deep concern at the frequent and recurrent police shootings or fatal pursuits of unarmed black individuals. In this regard, the Committee notes the alleged difficulties to hold police officers and their employers accountable for abuses. While noting the information provided by the delegation that over the past five years 20 investigations were opened into allegations of systematic police department violations, and over 330 police officers were criminally prosecuted, the Committee regrets the lack of statistical data available on allegations of police brutality and the lack of information on the result of the investigations undertaken in respect of those allegations. With regard to the acts of torture committed by CPD Commander Jon Burge and others under his command between 1972 and 1991, the Committee notes the information provided by the State party that a federal rights investigation did not develop sufficient evidence to prove beyond a reasonable doubt that prosecutable constitutional violations occurred, However, it remains concerned that, despite the fact that Jon Burge was convicted for perjury and obstruction of justice, no Chicago police officer has been convicted for these acts of torture for reasons including the statute of limitations expiring. While noting that several victims were ultimately exonerated of the underlying crimes, the vast majority of those tortured –most of them African Americans–, have received no compensation for the extensive injuries suffered (arts. 11, 12, 13, 14 and 16).
The State party should:
(a) Ensure that all instances of police brutality and excessive use of force by law enforcement officers are investigated promptly, effectively and impartially by an independent mechanism with no institutional or hierarchical connection between the investigators and the alleged perpetrators;
(b) Prosecute persons suspected of torture or ill-treatment and, if found guilty, ensure that they are punished in accordance with the gravity of their acts;
(c) Provide effective remedies and rehabilitation to the victims;
(d) Provide redress for CPD torture survivors by supporting the passage of the Ordinance entitled Reparations for the Chicago Police Torture Survivors.
ELECTRICAL DISCHARGE WEAPONS (TASERS)
27. The Committee is concerned about numerous, consistent reports that police have used electrical discharge weapons against unarmed individuals who resist arrest or fail to comply immediately with commands, suspects fleeing minor crime scenes or even minors. Moreover, the Committee is appalled at the number of reported deaths after the use of electrical discharge weapons, including the recent cases of Israel “Reefa” Hernández Llach in Miami Beach, Florida, and Dominique Franklin Jr. in Sauk Village, Illinois. While taking note of the information provided by the State party on the relevant guidelines and available training for law-enforcement officers, the Committee observes the need to introduce more stringent regulations governing their use (arts. 11, 12, 13, 14 and 16).
The State party should ensure that electrical discharge weapons are used exclusively in extreme and limited situations –where there is a real and immediate threat to life or risk of serious injury– as a substitute for lethal weapons and by trained law enforcement personnel only.
The State party should revise the regulations governing the use of such weapons with a view to establishing a high threshold for their use and expressly prohibiting their use on children and pregnant women.
The Committee is of the view that the use of electrical discharge weapons should be subject to the principles of necessity and proportionality and should be inadmissible in the equipment of custodial staff in prisons or any other place of deprivation of liberty. The Committee urges the State party to provide more stringent instructions to law enforcement personnel entitled to use electric discharge weapons, and to strictly monitor and supervise their use through mandatory reporting and review of each use.
28. The Committee takes note of the information that it has received regarding training in lawful interrogation methods and internal reporting mechanisms. It is concerned, however, by the lack of information on the impact of the training conducted for law enforcement officials, intelligence and security officials, military personnel and prison staff, and how effective the training programmes have been in reducing incidents of torture and ill-treatment (art. 10).
The State party should:
(a) Further develop mandatory training programmes to ensure that all public servants –law enforcement officers, military officers, intelligence officials, prison staff and medical personnel employed in prisons and psychiatric hospitals – are well acquainted in the provisions of the Convention and are fully aware that violations will not be tolerated and will be investigated, and that those responsible will be prosecuted;
(b) Ensure that all relevant staff, including medical personnel, are specifically trained to identify cases of torture and ill-treatment in accordance with the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol);
(c) Develop and apply a methodology for assessing how effective its training programmes are in reducing the number of cases of torture and ill-treatment.
REDRESS, INCLUDING COMPENSATION AND REHABILITATION
29. While noting the State party’s assertion that its legislation provides a wide range of civil remedies for seeking redress in cases of torture at the federal and state level, the Committee regrets the limited information provided by the delegation on rehabilitation programmes for both domestic and third country victims, or the allocation of resources to support such programmes. The Committee is further concerned about the situation of certain individuals and groups made vulnerable by discrimination or marginalization who face specific obstacles that impede the enjoyment of their right to redress (art. 14).
The State party should ensure that appropriate rehabilitation programmes are provided to all victims of torture and ill-treatment, including medical and psychological assistance. The State party should also enhance its support and funding for torture rehabilitation programmes in the State party.
The Committee urges the State party to take immediate legal and other measures to ensure that all victims of torture and ill-treatment obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible, in particular victims of police brutality, terror suspects claiming abuse, victims of gender violence, asylum-seekers, refugees and others under international protection.
The Committee draws the State party’s attention to its General Comment No. 3 (2012) on the implementation of article 14 by State parties (CAT/C/GC/3), in which it elaborates upon the nature and scope of State parties’ obligations to provide full redress to victims of torture, in particular to paragraphs 3-4, 11-15, 19, 32 and 39.
Pulling the Teeth from the Prison Rape Elimination Act
Delay, defy, defang.
Alysia Santo, The Marshall Project, December 2, 2014
“When the United Nations Committee Against Torture appraised America’s justice system in 2006, it had special praise for the Prison Rape Elimination Act (PREA), a 2003 law that called for “zero-tolerance” toward sexual abuse in detention facilities and established a set of standards to prevent and respond to sexual abuse.
“That international admiration has now soured into disappointment. In its latest report, released last Friday, the committee cited, among other shortcomings of American criminal justice, the “widespread prevalence of sexual violence” against American prisoners, and the failure of states to put the rape law into practice. According to the most recent estimates by the federal government, nearly 200,000 people were sexually abused in American detention facilities in 2011, largely unchanged since the first survey in 2007. After more than a decade of bureaucratic lethargy, rape elimination is not in sight.
“And the U.N. did not mention a quiet effort underway to make the law even less effective by eliminating its only enforcement mechanism.”
The issues on which CAP has been working for decades are finally being discussed in a more open forum. Now it is up to us to keep the conversation on track with positive recommendations for building healthy, safe, strong, and just communities!