Human Rights and Wrongs in Our Own
Backyard: |
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Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they can’t be seen on any map of the world. Yet they are the world of the individual person. |
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—Eleanor Roosevelt[1] |
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The degree of civilization in a society can be judged by entering its prisons. |
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—Fyodor Dostoyevsky[2] |
Perhaps for the first time in history, the world is experiencing widespread cognizance of international human rights in its social, policy, and business discourse. Functioning international criminal tribunals for human rights violations have been developed, leading to the establishment of a permanent international criminal tribunal.[3] International peacekeeping activities, truth commissions,[4] and the use of force aimed at “human rights situations” have been implemented in places as diverse as Kosovo, Cambodia, Iraq, and East Timor. The policies of the World Bank and the International Monetary Fund are appreciably influenced by human rights concerns.[5] Scholars and policymakers widely debate the notion that international human rights may trump the sacred cow of sovereignty.[6] These worldwide trends evidence evolving legal norms and political culture, as complex human rights problems are addressed in a more open and direct manner. These developments have converged to lend focus upon U.S. domestic courts’ incorporation of international law and their response to compelling social problems occurring
both in and outside of our borders. Often, the responses have been neither effective nor responsible.[7]
An urgent human rights crisis at home is under close scrutiny by diverse groups including the United Nations, non-governmental organizations, the U.S. Department of Justice, and public interest lawyers. Within the context of a prison population explosion that dwarfs that of the rest of the world,[8] the undeveloped status of international human rights in U.S. domestic jurisprudence becomes more evident. Within prison populations, increasing numbers of women’s lives are reduced to half-lives under the tortuous effects of sexual abuse by corrections officials. This dire situation presents the question: Can women prisoners continue to be denied the protections of international human rights standards[9] because of judicial and legislative resistance that defies the 100-year-old principle that “[i]nternational law is part of our law”?[10] The just, largely humane answer is no; the sources of institutional recalcitrance must be identified and approached at the risk of venturing into unfamiliar territory.
To that end, this Article reviews: (1) the human rights crisis in U.S. prisons, which has been the focus of international and domestic scrutiny; (2) the availability of international human rights standards as a source of law in U.S. jurisprudence; (3) a comparison of U.S. domestic protections with international law guarantees; (4) sources of international human rights norms applicable to this factual context; and (5) proposals for the incorporation of international human rights law by U.S. courts using domestic civil rights law.
The ironic and disturbing reality is that a disjunction in U.S. law provides legal recourse to non-citizen victims of abuse occurring either in the United States or abroad for international human rights violations.[11] By contrast, U.S. citizens are denied legal recourse in their attempts to raise international human rights claims for violations committed in the United States. This result reflects the failure of domestic jurisprudence to abide by either the century-old rulings of the U.S. Supreme Court or emerging international norms. This Article argues that the judiciary must gather the institutional will to finally assert itself to integrate and implement international human rights law. Until it does, the national policies supporting global economic
development, democratization, and human rights protections both at home and abroad will be unfulfilled. To do so, this Article proposes the use of existing domestic civil rights law.
Part II of this Article provides an overview and context of the case of human rights abuses of women in U.S. prisons, setting the stage for later analyses. The background includes a review of the historic roots and current developments concerning women prisoners, the U.S. prison system, and recent international human rights investigations. Part III reviews recent legal shifts, both in case law and in legislation, that tend to diminish domestic constitutional law. In some instances domestic protections drop below international norms. Part IV establishes the relationship between international law and domestic civil rights law. Terminology and basic concepts are defined. Part V critiques recent court decisions struggling with international human rights law incorporation. This Part proposes a new theory of incorporation: the use of domestic civil rights statutes as a potential vehicle for asserting international law claims.
In this largely undeveloped area of law, both domestically and internationally, little is clear and significant obstacles exist to domestic implementation of international human rights law. Yet the Article concludes with cautious optimism that our jurisprudence can begin to approach these difficult issues with careful and thoughtful debate, effectively adopt the rule of law finding international law as a “part of our law” set 100 years ago,[12] and provide needed remedies for human rights violations at home.
To date, the United States has kept pace with the maturation of international law in an inconsistent manner. On the one hand, the United States has often led the charge in some arenas.[13] For instance, the United States has integrated “human rights” as a salient component of its global political relations vernacular.[14] Moreover, in so-called “private international law,” the
United States has eagerly engaged in the globalization of the law of trade and intellectual property.[15] This record generally reflects a more global view of law at home and abroad.
On the other hand, the United States has failed to ratify or has significantly delayed its ratification of treaties at the heart of accepted international human rights norms, including international agreements prohibiting genocide[16] and torture.[17] When it has ratified human rights agreements, it has attached conditions in a manner often inconsistent with the purpose of the convention and the international law of treaties.[18] The United States has also refused to consent to the jurisdiction of international tribunals.[19]
The U.S. domestic legal culture has shown remarkably rapid growth in recognizing the justiciability of international human rights claims brought by aliens, primarily against other aliens for harms suffered on foreign soil, including claims against private actors.[20] Yet since the century-old edict of The Paquete Habana,[21] there has been little development of international human rights law in the context of claims based upon incidents within our borders. The path in this direction has been blocked by a variety of judicially created maxims, as well as by institutional discomfort fueled by unfamiliarity with the substantive law.
That said, in the post-Civil War era and throughout the subsequent application of the Bill of Rights to the states via the Fourteenth Amendment and the domestic civil rights legislation of both the eighteenth and nineteenth centuries, there has been little reason to test these new international waters. Until recently, the domestic law of the United States has been, with exceptions, at or above international thresholds. International human rights norms evolved primarily in the wake of World War II, and countries have been both encouraged and even required to implement international human rights law domestically. Methods of implementation vary from nation to nation,[22] with U.S. domestic law establishing its own constitutional and civil rights law addressing human rights norms. The United States can contribute to the goal of accomplishing world-wide adoption of international human rights when its domestic law interpretations both meet and incorporate international human rights standards.
Now comes the rub. Since World War II,[23] the relatively rapid growth of international human rights has not been effectively incorporated into U.S. jurisprudence. Judicially created doctrines of avoidance have effectively precluded domestic court adjudication of international human rights claims.[24] Even the underlying principle that international law is part of federal common law has been recently attacked by a small group of scholars.[25] U.S. constitutional jurisprudence has lowered the bar below some emerging international human rights standards, which themselves have blossomed into international customary law. The clearest example is the issue of capital punishment of juveniles by the states. It is fair to say that such executions violate
current international customary law. As discussed later in this Article, “punishment” under the U.S. Constitution’s Eighth Amendment has been a particular subject of re-definition. The development of the law of immunities and various statutory limitations have significantly impeded the accountability of official activities which violate rights protected by the Constitution.
Policy concerns under the guise of federalism and sovereignty often fuel the debate and resistance to incorporating international law. Thoughtful reflection should alleviate these concerns with respect to applying human rights law to stop the inexcusable treatment of U.S. women prisoners. The application of international customary human rights norms to U.S. prisons should create less dissonance than that experienced with foreign affairs matters because it is most often the practices of U.S. states, not the federal government, which are claimed to violate international law. State activities have traditionally been trumped by international treaty obligations.[26] Further, unlike the issue of capital punishment of juveniles, which is statutorily mandated, the abuse of women in confinement in violation of international human rights norms is not required by legislation. Thus, remedying this abuse does not require interference with the political process.
An initial focus on the compelling story of the victims may be the jump-start needed to provide relief and resolution. Indeed, the “lawyer’s primary task is translating human stories into legal stories and retranslating legal story endings into solutions to human problems.”[27] To address the problem of women prisoners, a transformation is required: the “local narrative” of the reality of life of abused women prisoners must be transformed into “legal narrative” which not only supports the legal claims of women prisoners, but also effectively deters these human rights violations in a country that proclaims to seek justice for both the powerless and the powerful. Both the scholar and advocate are needed to accomplish this task.
Being violently assaulted in prison is simply not “part of the penalty that criminal offenders pay for their offenses against society.”[28]
In 1995, the U.S. Department of Justice wrote the Governor of Michigan, concluding an investigation of the treatment of women prisoners in Michigan:
The sexual abuse of women prisoners by guards, including rapes, the lack of adequate medical care, including mental health services, grossly deficient sanitation, crowding and other threats to the physical safety and well-being of prisoners, violates their constitutional rights . . . . Nearly every woman interviewed reported various sexually aggressive acts of guards.[29]
The compelling factual context of the mistreatment of women in prisons across the United States enlivens the theoretical and pragmatic legal issues facing the incorporation of the international customary law of human rights into U.S. legal doctrine. International[30] and domestic scrutiny[31] of U.S. correctional facilities have yielded troubling findings[32] regarding the mistreatment of female prisoners—perhaps the most marginalized sector of the U.S. population. The players in this disturbing drama include state and private institutions, the public, legislatures, the executive and judicial branches of state and federal government, domestic and international non-governmental organizations, international agencies such as the United Nations, domestic and multi-national corporations, and human rights advocates.
A look in one of our own backyards focuses us on the human rights at stake and the people at risk. It also helps to place these issues in a legal context and, hopefully, generate a transformation to real solutions. To address these “relationships is to resist abstractions and to demand context.”[33]
The State of Michigan is a fertile example of the factual and legal playing field in the discourse of international human rights application to women prisoners. Michigan’s prisons were the site for Glover v. Johnson,[34] the seminal federal civil rights case in the United States involving female inmates. Glover was filed in 1977 on behalf of a class of women inmates seeking redress for denials of their constitutional rights to equal protection and access to the courts. After a 1979 ruling in their favor, the plaintiffs embarked upon a twenty-year struggle to enforce court-ordered remedies in the face of unprecedented recalcitrance by the State of Michigan:
The history of this case shows a consistent and persistent pattern of obfuscation, hyper-technical objections, delay, and litigation by exhaustion on the part of the defendants to avoid compliance with the letter and the spirit of the district court’s orders.[35]
Nonetheless, the case set in motion the means for hopeful change. For women prisoners in Michigan, significant scrutiny by “agents of change”—the courts and other agencies—resulted from this litigation.[36] Subsequent cases in other states successfully raised claims similar to those in Glover.[37]
With the increase in female inmate populations in Michigan and elsewhere since the 1970s, created in large part by long-term, mandatory, drug-related sentences, complaints of abusive conditions and treatment of female inmates also increased. Domestic and international responses to complaints have focused, in large part, on the conditions of confinement in Michigan. A
series of individual court actions, local press,[38] and legislative scrutiny[39] initially brought to light patterns of sexual abuse of female inmates by male guards.
In the early 1990s, the abuse of female inmates in Michigan and other state and federal prisons came under investigation by the U.S. Department of Justice, international non-governmental organizations, including Human Rights Watch and Amnesty International, as well as the United Nations, resulting in several investigative reports and legal actions.
Between 1994 and 1996, Human Rights Watch (HRW) embarked upon a two and one-half–year study of women’s prisons in the United States involving five states,[40] including Michigan, and the District of Columbia. In 1996, HRW issued a lengthy report[41] finding varying conditions ranging from commendable models to condemnable nests of international human rights violations. The report found significant abuses of female prisoners in the Michigan system, including rape, sexual harassment, impregnation, forced abortions, privacy violations and retaliation:
Corrections employees have vaginally, anally and orally raped female prisoners and sexually assaulted and abused them. In the course of committing such gross abuses, male officers not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so. In other cases, male officers have violated their most basic professional duty and engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with the prisoners, male officers used mandatory pat-frisks or room searches to grope women’s breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male corrections officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often sexualized and excessively hostile.[42]
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The Justice Department’s investigations corroborated these findings.[43]
Regarding facility access to investigate conditions, Human Rights Watch found:
Among these states, however, the resistance of the Michigan Department of Corrections (MDOC) to monitoring and accountability was striking . . . . Such resistance to outside monitoring is not new to Michigan. In 1995, when the U.S. Department of Justice initiated its investigation into civil rights abuses of female inmates, Michigan refused to allow federal investigators access to the prisons.[44]
The report also noted that Michigan refused to permit a U.N. investigation of the facilities and that significant retaliation occurred against women prisoners who cooperated with investigators.[45]
Human Rights Watch concluded that serious international human rights violations existed in Michigan and other state’s facilities. Human Rights Watch made recommendations to state officials including suggestions to follow the model practices reviewed in other states with regard to sexual misconduct.[46]
In 1998, another international NGO, Amnesty International, issued an extensive report of its investigations of a variety of human rights violation allegations in the United States.[47] The focus upon the United States reflected a major shift for Amnesty, which had previously focused on other countries. Amnesty paid particular attention to abuses within the penal system in addition to their traditional review of capital punishment practices.
Their investigation found overcrowded conditions, an exploding inmate population, physical brutality, sexual abuse, and shackling of pregnant prisoners.[48] The report discussed rights violations of women prisoners in Michigan, Arizona, and California, and made recommendations to state officials on ways to comply with international human rights standards.[49]
In 1999 the United Nations’ Human Rights Commission Special Rapporteur on Violence Against Women issued a report on her investigation into Michigan’s women’s prisons:
On the eve of her visit to Michigan the Special Rapporteur received a letter from the Governor of Michigan canceling her plans to meet with state representatives and her visits to women’s prisons located in Michigan. This refusal was particularly disturbing since she had received serious allegations about misconduct . . . . The Special Rapporteur nevertheless continued with her journey to Michigan and had meetings with lawyers, academics, former guards and former prisoners. She was also able to speak to some prison inmates on the phone to hear their complaints. Given the seriousness of the allegations, corroborated by diverse sources, the Special Rapporteur decided that these allegations should form part of her report despite the lack of cooperation.[50]
In line with the growing pattern of prisoner litigation against states and the federal government, the class action case of Nunn v. Michigan Department of Corrections was filed in 1996 on behalf of all female prisoners under the State of Michigan’s custody, alleging sexual assault and abutorically constrained legal system. This is human rights abuse in our own backyard, in a democratic, economically mature and robust nation that for centuries has been a world symbol for individual liberty and security of person. How then did the women prisoners in Michigan end up so vulnerable and victimized?[53]
The next Section will present a brief profile of U.S. women prisoners today, and the historical context of women in prisons in the United States. The following Sections suggest that the social and historical factors contributing to prisoner abuse include ignorance, lack of foresight, and negligence by prison administrators, rather than solely intentional wrongdoings which one usually presumes precipitate human rights abuses on this scale.
In 1999, the United Nations Special Rapporteur on Violence Against Women continued her study and investigation of female prisoners in the United States.[54] Who are these women being studied? The increased number of women in U.S. prisons during recent years is staggering. The number of women in federal custody increased 254% from 1981 to 1991.[55] Between 1980 and 1995, the number of women in both state and federal institutions increased approximately 500%.[56]
The legal status of women incarcerated in the United States varies widely and includes convicted criminals, those awaiting trial, and non-criminal immigrant detainees. Female U.S. Immigration & Naturalization Service (INS) detainees, who number 15,000 on any given day, are less likely to be segregated from criminal inmates than men “because of their fewer numbers.”[57] This population includes pregnant women and asylum seekers “fleeing human rights abuses in their own countries,”[58] and the conditions of their confinement often exacerbate their trauma.[59]
Incarcerated women are the fastest growing part of an exploding prison population.[60] Currently, the United States has the largest prison population in the world. Absent change, the total number of inmates in the United States is expected to exceed two million by 2002.[61] Planners of prison systems in the last twenty years have been badly caught off guard by the rapid prison population increase.[62] Mandatory sentences for drug offenses have been a major factor in the dramatic increase in sentence length and the number of female prisoners in recent years.[63] Unlike their male counterparts, convicted female prisoners are generally serving time for nonviolent crimes[64] as well as shorter terms.[65]
In adult facilities, women range from teenagers to the elderly.[66] Relative to the general population, a significantly disproportionate number of female prisoners are women of color, particularly African-Americans.[67] A large
number of women are pregnant at the time they enter correctional facilities, which has limited their health care options.[68] A majority of incarcerated women are mothers (80%) with most having more than one child.[69] The number of women who are the custodial parent of their children at the time they enter prison, relative to men, is striking.[70]
At the time of entry, women inmates are often poor,[71] uneducated,[72] disabled,[73] non-English speaking,[74] HIV-positive,[75] and suffer from other serious medical problems,[76] including drug and alcohol addiction[77] and psychiatric illness.[78] The numbers of women prisoners who have been the subject of childhood sexual abuse[79] and domestic violence[80] is substantially higher than both that of male inmates and the general population.[81]
These characteristics make women prisoners particularly vulnerable in the often unscrutinized conditions of confinement. They thus require particular attention, and international human rights may assist in efforts to protect
them.[82] This includes rights developed specifically for the protection of women, who often experience different types of injustice because of their gender.[83]
The history of women in U.S. penal facilities reveals several recurring themes: (1) separation of female prisoners from male prisoners, (2) the problems of establishing habitable conditions (e.g., issues of overcrowding, sanitation, accommodating motherhood), and (3) the definition and implementation of “humane treatment” in the context of appropriate supervision, punishment measures, work assignments, and rehabilitation programs.
When state prisons were established in the late 1700s, there were so few women inmates that states chose not to create separate institutions for women. Housing female with male prisoners resulted in privacy problems, vulnerability to sexual exploitation, and high infant mortality.[84] As the number of female inmates increased, they were moved to separate quarters, generally in either a small cellblock in the prison yard or a separate unit just outside the wall. They were no longer isolated from other women and were less vulnerable to sexual exploitation. However, these arrangements gave them less access to medical, religious, food, and exercise services.[85]
During the 1870s, overcrowding became a serious problem, and the practice of segregating women from men became more difficult.[86] Michigan removed women entirely from their prisons and confined them in local houses of correction.[87]
In the South, women, children, and ill prisoners were moved into separate quarters. At the same time, experiments with plantations, industrial prisons, and road camps supplied promising patterns for a new convict leasing system to address the labor shortage resulting from the abolition of slavery.[88]
Reformers established the principle that women prisoners must be treated differently from men.[89] Inmates lived in relatively small cottages under matronly supervision. New reformatories were designed to rehabilitate by inculcating domesticity. Programs included outdoor work, but inmates were trained mainly to sew, cook, and wait on tables and were often paroled as domestic servants.[90]
Modern women’s prisons combine an old tradition of public neglect with the reformatory’s legacy of gender stereotyping, made harsher by longer modern sentences. After a slow mid-century increase in the number of female institutions, the pace has exploded.[91] The new supply and demand has had significant public economic costs. From 1980 to 1993, total corrections expenditures of federal, state, and local governments combined increased 363%.[92] Costs reached $25,000 per year to imprison each inmate, or $150,000 for the typical six-year drug sentence.[93] In the 1980s and 1990s,
the exploding prison population led to taxpayers financing the construction of prisons at a rate five times higher than prisons publicly financed in the 1960s.[94] Even at that rate, construction has failed to keep up with the increase in population, creating severe overcrowding.[95]
The complex and increasing problem of undeterred violations of the human rights of women prisoners in the United States is further aggravated by the increasing prison privatization in the last two decades.[96] This development has potentially serious implications for remedying human rights violations.[97]
As Louis Henkin notes:
By its reservations, the United States apparently seeks to assure that its adherence to a convention will not change, or require change, in U.S. laws, policies or practices, even where they fall below international standards.[98]
Well-documented factual investigations provide evidence of the compelling human rights problem in our prison systems.[99] Horrid conditions of confinement for women have increased with the prison population explosion. Over the past thirty years, there has been significant prison conditions liti-
gation under U.S. constitutional guarantees. The constitutional standards in the area of punishment have been in flux.[100] Recent legislative activities have also redefined legal avenues in response to abusive prison conditions.[101] Ironically, a “lowered bar” of domestic rights coincides with increased global awareness of the importance of international human rights standards.
The United States is a party to, or at least not opposed to, several international treaties and declarations designed to ensure the protection of basic human rights, including the International Covenant on Civil and Political Rights,[102] the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[103] and the Universal Declaration of Human Rights.[104] Although the United States has ratified the ICCPR and the Torture Convention, it has attached reservations and failed to pass domestic enabling legislation. The various international standards under which a prisoner’s rights may be protected include the prohibition of torture,[105] and cruel, inhumane or degrading treatment.[106] This Section reviews the status and trends in U.S. domestic norms concerning “punishment” and penal conditions.
The U.S. Constitution’s Eighth Amendment obligates both the federal and state governments to prohibit “cruel and unusual punishment.” However, recent court interpretations of this provision,[107] doctrines limiting li-
ability,[108] as well as new federal legislation (Prison Litigation Reform Act) have significantly reduced the protections afforded to prisoners. In such an atmosphere, advocates now seek new sources of protection, including international law.
Advocates seek the option to pursue claims under both domestic and international law for a variety of reasons, including recent restrictions on domestic law claims, the ability to provide jurors and judges with alternate claims, and the desire to give alien and citizen plaintiffs equal access to these sources of law. Finally, it can be tactically effective to raise international human rights claims in settling litigation against the government, which fears public embarrassment. The threat of judicial findings of human rights violations is a powerful tool in forcing governments to meet their legal obligations.[109]
Although this Article focuses on the plight of women prisoners, it is useful to look at another, more clear-cut, example within the U.S. criminal justice system of the dissonance between domestic constitutional law prohib-
iting “cruel and unusual punishment” and international human rights standards—the execution of minors.[110]
The execution of children in the U.S. justice system is the clearest example of domestic standards that are lower than international norms.[111] The execution of minors, which has been almost universally restricted, continues in the United States.[112]
The Convention on the Rights of the Child recently reiterated the international standard that “neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offenses committed by persons below eighteen years of age.” While not ratified by the United States,[113] it has been adopted by 192 countries.[114] This is one of many
significant indicators reflecting a global consensus in opposition to the execution of minors.[115]
Since 1990, only six countries are known to have executed individuals who were under eighteen years old at the time of their crime: [116] Iran (4), Nigeria (1), Pakistan (2), Saudi Arabia (1), Yemen (1), and the United States (12).[117] The prohibition of the execution of minors has reached jus cogens status.[118]
Rather than accord and implement obligations under international law, the United States has followed the ruling of its Supreme Court solely under domestic constitutional law to determine when a child can be put to death. In 1988, the Court ruled in Thompson v. Oklahoma[119] that it was unconstitu-
tional to execute a minor who was only fifteen at the time of the crime.[120] Justice Stevens’ plurality opinion (joined by Justices Brennan, Marshall and Blackmun) referred to both domestic and international standards and practices in determining whether the execution would meet the “evolving standards of decency that mark the progress of a maturing society.”[121] Justice O’Connor concurred on other grounds.[122] Justice Stevens’ use of international standards in reviewing the Eighth Amendment claim was a subject of Justice Scalia’s stinging dissent: “The plurality’s reliance upon Amnesty International’s account of what it pronounces to be civilized standards of decency is totally inappropriate as a means of establishing the fundamental beliefs of this country.”[123]
The debate on the use of international standards in defining the scope of the Eighth Amendment in capital cases arose again only one year later. In Stanford v. Kentucky,[124] the Court found the execution of a sixteen-year-old was neither “cruel and unusual” nor otherwise in violation of domestic constitutional protections.[125] In Part II of Justice Scalia’s opinion for the Court (joined by the Chief Justice and Justices White, Kennedy, Stevens and O’Connor), he was quick to note:
We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention of petitioners and their various amici (accepted by the dissent, see post, at 2984–2986) that the sentencing practices of other countries are relevant.[126]
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While the make-up of the Court has changed since Stanford, there is no indication that a current majority would change the Court’s position on the use of international standards in defining the Eighth Amendment.[127] Short of this unlikely scenario, the execution of minors will continue in the United States, permitted by domestic law that violates international human rights standards prohibiting cruel, inhumane or degrading punishment.
U.S. courts continue to lower the bar of domestic human rights standards in the area of “punishment,”[128] including the conditions of confinement. Rulings interpreting the Eighth Amendment’s “cruel and unusual punishment” clause are a recent example.[129] Various treaties and declarations, however, establish principles prohibiting torture, cruel, inhumane, or degrading treatment, thereby providing potentially broader sources of protection for women prisoners.
The U.S. Supreme Court in Harmelin v. Michigan[130] considered a claim that a mandatory life sentence without parole violates a first time offender’s right to be free from “cruel and unusual punishment”[131] after a conviction for cocaine possession.[132] The Court, with Justice Scalia writing for the majority, held that the sentence[133] did not violate the Eighth Amendment.[134] In a portion of his opinion, joined by Chief Justice Rehnquist, Justice Scalia
found the Michigan sentence to be “cruel” but not “unusual.”[135] In examining the origins of the phrase “cruel and unusual,” he opined that it was intended to proscribe only certain types of punishment, not to guarantee proportional sentencing.[136] His analysis concluded with a new two-pronged test whereby only a punishment which is independently both cruel and unusual is unconstitutional. The decision offers no definitive test but reflects new directions in interpreting the Eighth Amendment. It has also created further ambiguities for courts and litigants.[137]
This decision and its progeny, using this new textual analysis, reflect the recent propensity of U.S. courts to reduce Eighth Amendment protections below the cruel “or” unusual standards under international human rights norms. As one might expect, Justice Scalia’s analysis of the Eighth Amendment has had an impact on state courts. For instance, a Maryland court considered whether two concurrent sentences of twenty years violated either the Maryland or United States constitutions.[138] In invalidating the first twenty-year sentence, the court held there were still constitutional protections against grossly disproportionate sentences, but noted that the plurality decision of Justices Scalia and Rehnquist in Harmelin “clouds . . . the waters of Eighth Amendment proportionality jurisprudence.”[139]
An Illinois court has indicated a willingness to adopt Justice Scalia’s two-pronged “cruel and unusual punishment” test when it upheld a sentence of two consecutive twenty-year terms for sexual assault convictions.[140] The court noted that the majority in Harmelin had agreed that “severe, mandatory penalties may be cruel and yet are not unusual in the constitutional sense.”[141]
State courts must follow both the U.S. and their respective state constitutions. A few state constitutions contain clauses prohibiting “cruel or unusual” punishment,[142] similar to international norms. Since Harmelin, some
state courts now interpret their state constitution’s “cruel or unusual” language more broadly than the Eighth Amendment.[143] Notably, Michigan’s constitution uses “or;” on that basis, the state supreme court struck down the statute upheld in Harmelin.[144]
Unlike the U.S. Constitution’s Eighth Amendment, international instruments generally use “or” and do not require proof of more than one element. For example:
Universal Declaration of Human Rights:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[145]
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts or cruel, inhuman or degrading treatment or punishment . . . .[146]
The American Declaration of the Rights and Duties of Man:
Every person accused of an offense has the right . . . not to receive cruel, infamous or unusual punishment.[147]
The American Convention on Human Rights:
No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment . . . .[148]
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The African [Banjul] Charter on Human and People’s Rights:
All forms of exploitation and degradation of man particularly . . . torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.[149]
The European Convention for the Protection of Human Rights and Fundamental Freedoms:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.[150]
The International Covenant on Civil and Political Rights:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment . . . .[151]
The Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment:
No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment . . . .[152]
Declaration on the Elimination of Violence Against Women:
The right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment.[153]
The Convention on the Rights of the Child:
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.[154]
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The use of the disjunctive “or” in these international instruments evidences a potentially higher standard of protection than that established by the U.S. Constitution.
To date, there have been no reported international tribunal decisions on the distinction between the textual import of “and” in domestic legislation versus “or” under international human rights standards. Doctrines of standing for individual petitioners, exhaustion of domestic remedies, limited resources of international tribunals, and ineffective jurisdiction over respondent countries[155] result in a paucity of decisions on these issues.
The European Court of Human Rights has reviewed prisoners’ claims of torture or inhumane treatment under the European Convention on Human Rights.[156] In the 1978 decision in Ireland v. United Kingdom,[157] the Court reviewed allegations of torture of IRA members by British prison and military officials. The claims included sensory deprivation interrogation methods known as the “five techniques.” [158] Under Article 3, which prohibits “torture or inhuman or degrading treatment or punishment,”[159] the Court held that “use of the five techniques did not constitute a practice of torture within the meaning of Article 3,” but did constitute “inhuman and degrading treatment.”[160] Logically, the conclusion would have differed if Article 3 used “and” instead of “or.” A requirement that all elements of Article 3 be met would have led to a different result.[161] A similar analysis of the distinc-
tions between “torture” and “cruel, inhuman or degrading treatment” under Article 10 of the American Convention on Human Rights makes it clear that a petitioner need not prove each element.[162] Notably, “[j]udicial attempts to interpret these concepts or to distinguish clearly among them [torture and cruel, inhuman and degrading treatment] in case law have proven difficult.”[163] As one scholar concludes, “However basic this human right may seem, it is most complex indeed.”[164]
Not only has the ambiguity on the impact of “or” in the Eighth Amendment created by the Harmelin decision failed to establish clear constitutional guidelines to prevent excessive punishments that may abridge human rights, but Justice Scalia’s new two-pronged Eighth Amendment test also would not permit the judiciary to bar commonly imposed punishments, no matter how cruel.[165] Such a result would clearly drop below the international norm. The U.S. government’s official position on treaty reservations which limit a treaty’s reach to what is permitted by U.S. law has been that the Eighth Amendment adequately provides human rights protections.[166] Yet following Harmelin, Turner v. Safely, and the recent Prison Litigation Reform Act, this assertion may not be accurate.[167]
The U.S. Supreme Court has also lowered the test used to evaluate all constitutional claims by prisoners. In Turner v. Safely,[168] the Court considered a First Amendment claim based upon restrictions of prisoners’ rights to marry and use ] A prison practice or
regulation that burdens fundamental rights will be upheld so long as it is reasonably related to a legitimate penological interest of the government.[170]
Turner directly implicated First Amendment rights, one of the constitutional bases for claims of privacy and personal integrity raised by female inmates subject to sexual harassment and abuse. Turner lowers constitutional protections for women inmates, raising privacy claims under the First, Fourth, Ninth, and Fourteenth Amendments.[171]
Turner’s broad language left uncertainty as to whether the Court intended the rational basis standard to apply to Eighth Amendment claims of cruel and unusual punishment. The lower courts have split on this issue. The courts that have not applied the Turner analysis to Eighth Amendment claims generally continue to use the principle set forth in Estelle v. Gamble which prohibits punishment that is “unnecessary and wanton infliction of pain.”[172] In post-Turner cases alleging that insufficient medical care amounts to cruel and unusual punishment, several courts have found that a violation occurs only when it is proven that officials are “deliberately indifferent” to a serious medical need.[173]
Some lower courts have applied the Turner test to Eighth Amendment claims without qualification.[174] Other courts have employed a combination of Turner and the more traditional Eighth Amendment tests. Generally, these courts determine whether the challenged prison regulation or action is reasonably related to a legitimate government interest and then review
whether the actual practice violates prohibitions against “deliberate indifference” or “wanton disregard.”[175] Taking even another approach, some courts first determine whether challenged actions constitute “cruel and unusual” punishment and then apply Turner, validating the actions so long as they are reasonably related to a legitimate penological interest.[176]
It is, however, conceptually difficult to understand how the “unnecessary and wanton infliction of pain” can ever be reasonably related to a legitimate governmental interest. Such irrational analyses are the product of Turner, which fails to give clear direction to the lower courts. In the future, courts may generally find that Turner circumvents the entire analysis of “unnecessary and wanton infliction of pain” with a resulting “reasonableness standard” applied even to claims of “cruel and unusual punishment” that occur within prison walls.
As with the Harmelin decision, the effect of Turner’s low-threshold rational basis test upon constitutional claims by prisoners significantly lowers their domestic constitutional guarantees. The international human rights norms prohibiting cruel, inhuman or degrading treatment or punishment, privacy, and integrity, are less developed norms, but do not follow the Turner or Harmelin route. Unlike Turner, international human rights norms do not allow degradation of basic human rights based solely upon an individual’s status as a prisoner.
The Prison Litigation Reform Act (PLRA) was signed into law in April 1996 and enacted primarily as a response to mounting concerns over the
rising costs of prisoner litigation.[177] The PLRA carves out the area of prison litigation from all other cases before the judiciary, sets new rules and significantly affects past and future prison reform efforts as well as the scope of protections for individuals. The new restrictions include exhausting administrative remedies prior to filing a lawsuit, new limitations to allow proceedings in forma pauperis,[178] and a limitation on attorney fees for prevailing parties not applicable to non-prison related civil rights cases.[179]
The PLRA also dramatically limits a court’s ability to remedy findings of unconstitutional prison conditions or practices.[180] Prior to granting relief, a court must find a violation of a constitutional or federal right, and then narrowly tailor the relief to that specific violation, even when the relief is agreed to by the parties in consent decrees.[181] Thus, a court cannot approve a consent decree without an independent finding of a constitutional violation. The PLRA’s application to consent decrees is a significant change in federal civil procedure which only affects prison reform litigation. Now, under the PLRA, any consent decree that does not contain an admission by defendants or a finding of a constitutional or federal law violation is invalid. Such a requirement will obviously thwart efforts by parties to this complex and expensive litigation to enter into settlement agreements.[182] Surprisingly, the PLRA applies retroactively to outstanding consent decrees, thus placing them in jeopardy of abrogation, despite the agreement of the parties and approval of the court that ordered the relief.[183]
The PLRA also prohibits a prisoner from bringing a claim for mental or emotional injury in federal court without “a prior showing of physical in-
jury.”[184] This prohibition blocks any relief to prisoners who have been subjected to emotional abuse by prison officials and suffer injuries that are mental or emotional in nature.[185] Though Congressional hearings indicated that this provision would leave women prisoners victimized by sexual abuse without remedies, the Act passed with the provision intact.[186] This provision on its face limits the application of the Eighth Amendment’s “cruel and unusual” punishment clause solely to violations which result in physical injuries. It also precludes other constitutional claims often raised in prisoner litigation where physical injury does not occur, such as violations of privacy, access to counsel, substantive due process, equal protection, and other First, Fourth, Fifth, Ninth, and Fourteenth Amendment rights.[187]
These new legislative standards fly in the face of higher international human rights standards that recognize the importance of the inherent dignity of humans and accordingly prohibit acts of torture and other cruel, inhuman, or degrading treatment or punishment likely to cause pain or suffering to a prisoner, whether physical or mental. Physical injury has never been a required element of torture, cruel, inhuman or degrading treatment, or
punishment under international human rights standards.[188] Mental suffering alone has consistently been held to violate the ICCPR and the European Convention protections.[189]
In addressing the issue of solitary confinement in the United States, which, like many forms of sexual harassment, causes psychological suffering without physical injury, U.S. domestic protections fail to meet international protections.[190]
Historically, under U.S. domestic standards, rather than only forbidding the infliction of certain physical harms, both the Eighth and Fourteenth Amendments prohibited treatment of prisoners that is “offensive to human dignity” so as to “shock the conscience.”[191] This constitutional standard is central to protecting prisoners from the psychological harms arising out of sexual harassment by prison guards. In Women Prisoners of the District of Co-
lumbia v. District of Columbia,[192] decided pre-PLRA, female inmates filed a class action suit alleging pervasive sexual harassment and coercion in the Washington, D.C. prison system. In addition to finding that rape, coerced sodomy, and unsolicited touching of female prisoners’ bodies violated constitutional protections, the court also held that “vulgar sexual remarks of prison officers, the lack of privacy within . . . cells and the refusal of some male guards to announce their presence in the living areas of women prisoners” constituted a separate violation of Eighth Amendment rights.
Although the female inmates who had been raped would meet the PLRA’s physical injury threshold, the “significant depression, nausea, frequent headaches, insomnia, fatigue, anxiety, irritability, nervousness and loss of self-esteem” for inmates who had merely been harassed would be now unredressable mental and emotional injuries under the PLRA.[193]
This recent legislation[194], as well as new trends seen in judicial opinions on constitutional standards in prison cases, reflects a radical change in the appropriate governmental response to these issues. Through these changes, the United States has significantly reduced and, in some cases, effectively eliminated domestic constitutional protections.[195]
International humanitarian law provides another source of law for human rights organizations and advocates. Worldwide recognition of the human rights and humanitarian law norms should, in turn,
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lead to more widespread acceptance and implementation of fundamental rights.[196]
While “[i]nternational law is part of our law,”[197] the applied meaning of this language in the incorporation of international law into the domestic jurisprudence of the United States has been the subject of significant scholarly debate over the last 100 years.[198] Unfortunately, the U.S. Supreme Court has provided little guidance for the judiciary in the incorporation process.
This Section briefly reviews the sources of international law under U.S. jurisprudence and identifies international treaties, declarations, and guidelines providing potential international human rights protection of women prisoners subjected to abuse in U.S. prisons.
There are two primary sources of international law: treaties and customary law.[199] The Restatement (Third) of the Foreign Relations Law of the United States delineates the customary international law of human rights:
A state violates international law if, as a matter of state policy, it practices, encourages, or condones . . .
(d) torture or other cruel, inhuman, or degrading treatment or punishment, or . . .
(g) a consistent pattern of gross violations of internationally recognized human rights.[200]
The list is not intended to be exhaustive.[201]
U.S. courts, in determining international customary law, review a variety of sources:
What the law of nations on this subject is, may be ascertained by consulting the work of jurists, writings professedly on public law;
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or the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.[202]
The “law of nations” forms an integral part of federal common law. A review of the history surrounding the adoption of the Constitution demonstrates that the “law of nations” became part of U.S. common law upon the adoption of the Constitution.[203] When Justice Jay stated in Chisolm v. Georgia[204] that “the United States by taking a place among the nations of the earth [became] amenable to the law of nations,” he was speaking of customary international law, not merely treaties.[205] Under the Articles of Confederation, the states applied international law as common law, but with the signing of the U.S. Constitution, “the law of nations became preeminently a federal concern:”[206] “[i]t is now established that customary international law in the United States is kind of federal law, and like treaties and other international agreements, it is accorded supremacy over state law by Article VI of the Constitution.”[207] This principle is frequently reiterated.[208]
Justice Scalia’s position that U.S. jurisprudence should not incorporate international human rights standards[209] was ironically affirmed by the U.S.’s qualified ratification of the ICCPR and the Torture Convention, declaring both treaties to be “non-self-executing,”[210] and the failure to pass enabling
legislation.[211] These Conventions also contain reservations limiting the treatise to the scope of the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution.[212]
Recent U.S. policy to issue reservations to anything in a treaty inconsistent with domestic law raises serious questions about what effect these reservations have on treaties such as the ICCPR and the Torture Convention.[213] As discussed later in this Article, these issues have been a recent source of debate among scholars.[214]
When Congress uses its constitutional authority to legislate in the international rights area, it has and can provide domestic judicial remedies for international human rights violations.[215] Ratification of a treaty, on the other hand, may not similarly result in establishing the treaty as binding authority in our courts. In general, the ability of individuals or groups to enforce treaties in U.S. courts has proved to be prohibitively difficult. Although treaties are the “Supreme Law of the Land,”[216] this constitutional
principle may have little practical impact in our courts. Under long standing U.S. Supreme Court doctrine, it is only so-called “self-executing”[217] treaties which supersede all state or prior federal laws and are justiciable.[218] Generally, the record of U.S. courts shows a clear unwillingness to find international human rights treaties to be “self-executing.”[219] The international human rights treaties which the United States has ratified are, in the vast majority of cases, not directly enforceable in our courts due to this judicial doctrine.[220] Alternative statutory bases for raising treaty rights are discussed in Part V, infra.
A review of the domestic laws and practices of states is important as courts interpreting international law also look to the practices and customs of states in determining customary law.[221] The principles supporting reference to state practice are well summarized by Louis Henkin:
[P]rinciples common to legal systems often reflect natural law principles that underlie international law . . . [I]f the law has not yet developed a concept to justify or explain how such general principles enter international law, resort to this secondary source seems another example of the triumph of good sense and practical needs over the limitations of concepts and other abstractions.[222]
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Female prisoners who are the victims of sexual assault, physical and verbal harassment, violations of privacy and personal integrity, degrading, cruel, inhuman, or unusual treatment, and discrimination by male correctional employees are affected by rights protected by a variety of international human rights standards.
Policies that permit unsupervised male guards to search and monitor in female prisoner housing units have been identified as a primary cause of the high degree of incidences of abuse in U.S. prisons.[223]
The only international standards that directly address this issue are found in the 1959 United Nations Standard Minimum Rules for Treatment of Offenders:
(1) women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers.[224]
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In subsequent resolutions in 1971 and 1973, the United Nations urged its members to adopt and incorporate these rules into their national legislation and “to make all possible efforts to implement the Standards.”[225] These standards, while non-binding, are a source of international customary law.[226]
In the 1970s, these rules resulted in “a picture of spotty implementation”[227] of the standards. In 1974, sixty-two member nations responded to a U.N. survey on compliance, the most comprehensive review of implementation. On Rule 53, quoted above, only thirty-two countries, including the United States, indicated full compliance.[228] While the U.N. Rules “enjoyed a surprising degree of world consensus and acceptance in original adoption and subsequent actions of endorsement,” two decades later there was “meager evidence of progress.” In 1984, the U.N. concluded: “The degree of incorporation of the [Standard Minimum] Rules into domestic law has been disappointing but a case can be made that the [Standard Minimum] Rules are now part of the corpus of international customary human rights law.”[229] Now, over four decades since their adoption, the U.N. appears to have abandoned any significant support for implementation of these standards, including Rule 53.[230]
With regard to state practices in the United States, it is important to review the apparent abandonment of policies prohibiting cross-gender searches and staffing in female correctional housing units.[231] As of the early 1980s,
official U.S. federal and state corrections standards were generally consistent with U.N. Minimum Rule 53,[232] as noted by U.S. courts.[233]
Yet despite the U.S. Supreme Court’s decision in Dothard v. Rawlinson,[234] courts began, under equal protection and employment discrimination analyses, to strike down correctional policies which precluded female guards from monitoring and conducting searches in male inmate housing units[235]. For example, in Michigan, which currently has a significant crisis in its female prisons, the state corrections department practice of precluding female officers from working in male units was struck down as a violation of equal protection.[236] A federal court summarily found that equal employment rights trump any privacy or other constitutional rights which male prisoners may hold.[237] Subsequent lawsuits and policy changes soon followed in Michigan against the federal government[238] and other states, permitting
male guards in female prisoner housing units.[239] Even when allegations of abuse have been proven, the courts have often permitted the employment practice to continue while imposing other remedies.[240] Georgia, however, has been a model state in resisting this trend. Georgia has implemented policies that limit the access of male guards to female housing units and restrict cross-gender searches consistent with U.N. Minimum Rule 63. The Georgia standards have been praised as effective in stopping widespread misconduct which victimized female prisoners.[241]
Canada, like the United States, was quick to adopt and implement U.N. Rule 53 in the 1950s. As late as 1989, male correctional staff was not permitted to supervise women inmates in housing units in Canadian prisons.[242] This policy changed when a male corrections officer successfully challenged the policy on equal employment grounds.[243] Canada, however, remains open to revisiting this issue. In 1993, the Supreme Court of Canada found that the practice of prohibiting male guards from frisking female inmates was not discriminatory even though male inmates are subject to cross-gender searches.[244]
The most pertinent major international standards regarding protections from torture, cruel, inhumane or degrading treatment applicable to prisoners include the ICCPR, the American Convention on Human Rights, the European Convention for the Protection of Human Rights, the Universal Declaration of Human Rights, and the U.N. Minimum Rule for Treatment of Prisoners. These documents have been previously discussed and compared to U.S. domestic law.
Diminished privacy protections for prisoners under U.S. law have also been discussed as a cause of the abuses described.[245] The following international conventions and declarations recognize a right to privacy:
Universal Declaration of Human Rights:
No one shall be subjected to arbitrary interference with his privacy . . . . [246]
The American Declaration of the Rights and Duties of Man:
Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.[247]
The American Convention on Human Rights:
No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.[248]
The European Convention for the Protection of Human Rights and Fundamental Freedoms:
Everyone has the right to respect for his private and his family life, his home and his correspondence.[249]
The International Covenant on Civil and Political Rights:
No one shall be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.[250]
Privacy rights under international standards are well recognized, but have not been the subject of decisions by international tribunals in the prison context. Notably, unlike other rights, most international conventions that
contain privacy protections permit derogation of the right in certain circumstances.[251]
There are as many as seventeen conventions, declarations, and principles under international human rights law which may be sources of protection for U.S. women prisoners: the Universal Declaration of Human Rights;[252] the Vienna Declaration and Programme of Action;[253] the Geneva Conventions of 1949;[254] the Geneva Convention Relative to the Protection of Civilian Persons During Time of War;[255] the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;[256] the American Declaration of the Rights and Duties of Man;[257] the American Convention on Human Rights;[258] the African [Banjul] Charter on Human and People’s Rights;[259] the European Convention for the Protection of Human Rights and Fundamental Freedoms;[260] the International Covenant on Civil and Political Rights;[261] the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment;[262] the United Nations Standard Minimum Rules for Treatment of Prisoners;[263] Protocol I of the Geneva Conventions;[264] Protocol II of the Geneva Conventions;[265] the Convention on the Elimination of All Forms of Discrimination Against
Women;[266] the Declaration on the Elimination of Violence Against Women;[267] and the Convention on the Rights of the Child.[268]
Beyond what has been discussed, these seventeen documents contain numerous articles, rules, and paragraphs relevant to the factual context raised in this Article. A textual delineation, explanation, and interpretation of each and every principle is beyond the scope of this Article. For the sake of efficiency, however, the numerous provisions of these documents are set forth in a series of tables categorized by the various types of protections and containing specific language of each provision.[269]
The international conventions and declarations noted reflect strong evidence of international customary law recognizing the rights of women prisoners to be free from abuse and exploitation by their custodians.[270] The abuses discussed in Part II involve mistreatment as varied as threats, rape,[271] verbal harassment, discrimination, retaliation, unwanted touching,[272] and invasion of privacy[273] of women by male officials,[274] and are touched upon by a wide range of international standards.
The guidepost of tticulated by scholars and the vast majority of recent judicial decisions affirms Justice Gray’s opinion in The Paquete Habana. The United States has companions in the struggle to incorporate international human rights standards into domestic jurisprudence.[277]
There are no clear legislative bases for implementing the modern incorporation position for international human rights claims by U.S. citizens for violations occurring within the United States. By contrast, aliens can assert these claims in our courts under the Alien Tort Claims Act (ATCA). The variety of reasons for this status of the law include: the relatively recent development of international human rights, the unfamiliarity of the practicing legal culture with public international law, the recent resistance by the U.S. Supreme Court to using international standards in interpreting the U.S.
Constitution,[278] and the lack of statutory authority specifically allowing claims by citizens under “the law of nations,” as provided to non-citizens.[279]
Judges, advocates, and scholars must be thoughtful and creative in developing the new doctrinal area of human rights litigation. The rule of law requires credible, supportable norms to implement the incorporation doctrine which has been avoided by U.S. courts for this past century. International rights can effectively provide remedies only if they are developed with care.[280]
This Part explores potential bases for the implementation of the international customary law of human rights in response to the human rights crisis in U.S. prisons.
The primary and most developed source of domestic human and civil rights law enforcing federal constitutional guarantees is 42 U.S.C. § 1983, which states in pertinent part:
Every person who, under color of any state statute, ordinance, regulation, custom, or usage, of any state . . . [deprives a person] of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, or suit in equity.[281]
This Section explores the question of whether international human rights protections can be asserted under § 1983, which protects rights “secured by the Constitution and laws.”
The U.S. Supreme Court has held that an aggrieved person is entitled to § 1983 relief for federal statutory violations unless Congress has “specifically foreclosed a remedy under Sec. 1983”[282] and that § 1983 is to be “broadly
construed” to provide a remedy “against all forms of official violation of federally protected rights.”[283] The U.S. Supreme Court also notes that, “[W]e do not lightly conclude that Congress intended to preclude reliance on Sec. 1983 as a remedy for the deprivation of a federally secured right.”[284]
Treaties are the “[S]upreme Law of the Land.”[285] However, as discussed, the justiciability of claims based directly upon treaties is severely limited by the “non self-executing” doctrine. Treaties have the same legal import as federal statutes.[286] Thus, a closer look at the language, interpretation, and policies underlying 42 U.S.C. § 1983 as a potential right of action for treaty-based rights is appropriate.[287]
Despite acknowledgment that the primary focus of § 1983 was to “ensure a right of action to enforce the protections of the Fourteenth Amendment,”[288] the U.S. Supreme Court cautions that “this does not mean that jurisdiction cannot be found to encompass claims nonexistent in 1871 or 1874.”[289] The Court has regularly rejected attempts to limit the scope of both the “rights, privileges and immunities”[290] and the “Constitution and laws”[291] clauses of § 1983; “[r]ather, we have given full effect to its broad language.”[292]
The U.S. Supreme Court has never directly ruled upon the application of § 1983 as a basis for treaty based rights. However, the Court has stated:
Even though that Clause is not a source of any federal rights, it does “secure” federal rights by according them priority whenever they come in conflict with state law. In that sense all federal rights, whether created by treaty,[293] by statute, or by regulation, are “secured” by the Supremacy Clause.[294]
When determining whether § 1983 is a proper basis for a claim based upon another federal statute, the Court has outlined a three-prong inquiry:[295]
1. Does the provision in question create binding obligations upon the government or “does [it do] no more than express a congressional preference for certain kinds of treatment?” [296]
2. Is the right sought to be protected “too vague and amorphous” to be “beyond the competency of the judiciary to enforce?” [297]
3. Can the defendant meet its burden to show that Congress “specifically foreclosed a remedy under § 1983?”[298]
In applying this treatment of statutes to treaties, the conclusion depends primarily upon the treaty and any attached reservations, declarations, or understandings. For example, a broad application of § 1983 would certainly include the rights guaranteed by the Convention on Torture.[299] Ratification commits the United States to the provisions of the treaty, which is given
legal status under the Constitution. Further, the treaty is not so amorphous as to be beyond the competency of a judiciary, which regularly evaluates and enforces Constitutional and civil rights claims of equal or greater complexity. Thus the requirements of the first two prongs of the Court’s test are met. Regarding the third prong, there is nothing in the U.S. legislative history nor in U.S. reservations to the Torture Convention specifically prohibiting § 1983 as a domestic enforcement mechanism. The reservations indicate that the Torture Convention’s mandate is to prevent “cruel, inhuman or degrading treatment or punishment,”[300] only to the extent prohibited “under the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States.”[301] This reservation, on its face, does not preclude a claim under § 1983. It may, however, limit the extent of the rights asserted. In fact, another provision in the U.S. reservations indicates that the Convention will be implemented under U.S. legislative and judicial jurisdiction,[302] which includes § 1983.
U.S. ratification of the Torture Convention was also accompanied by a declaration commonly attached to recent human rights treaties stating that its provisions are not “self-executing.”[303] While the Senate is thereby indicating its position that the treaty does not permit a direct cause of action under the Convention, a § 1983 claim is neither specifically nor necessarily precluded.
For an example by analogy, the Court in Maine v. Thiboutot held that the Federal Social Security Act did not provide a cause of action, implied or otherwise, for rights provided under the Act.[304] That finding alone, however, did not preclude a claim under § 1983 absent a clear showing of Congressional intent indicating otherwise. The Court found a right to use § 1983 as a cause of action for rights under the Social Security Act.[305]
In pertinent ways, international human rights treaties, which specifically address the issue of civil/human rights, are stronger candidates for enforcement under § 1983. Analysis of these issues, unfortunately, has been given scant review by both the courts and scholars.[306]
As discussed, the U.S ratified many international human rights treaties with reservations or declarations limiting their scope to domestic jurisprudence decisions interpreting the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Regarding § 1983-based claims asserting treaty rights, the courts must address the question of whether these reservations constrain a § 1983 claim.
As Louis Henkin aptly notes:
By its reservations, the United States apparently seeks to assure that its adherence to a convention will not change, or require change, in U.S. laws, policies or practices, even where they fall below international standards. For example, in ratifying the International Covenant on Civil and Political Rights, the United States refused to accept a provision prohibiting capital punishment for crimes committed by persons under eighteen years of age. In ratifying the Torture Convention, the United States, in effect, reserved the right to inflict inhuman and degrading treatment (when it is not punishment for a crime), and criminal punishment when it is inhuman and degrading (but not “cruel and unusual”). Reservations designed to reject any obligation to rise above existing law and practice are of dubious propriety: if states generally entered such reservations, the convention would be futile . . . . Even friends of the United States have objected that its reservations are incompatible with that object and purpose and are therefore invalid.[307]
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The Vienna Convention on Treaties states that a nation may not enter a reservation that “is incompatible with the object and purpose of the treaty.”[308] With regard to the ICCPR, the U.N. states that “[s]tates should not enter so many reservations that they are in effect accepting a limited number of human rights obligations, and not the Covenant as such.”[309] While a thorough discussion of these issues is beyond the scope of this Article, courts and litigants will be required to address these complex concerns. They will need to consider if the international rights asserted, such as privacy, found in constitutional amendments other than the Fifth, Eighth and Fourteenth Amendments, are also limited by the reservations.
If reservations, understandings, or declarations are incompatible with the purpose of the convention,[310] questions arise as to whether courts should strike down the reservation or void the treaty’s ratification.[311] The result upon a finding of an “invalid reservation as a matter of international law is not entirely clear.”[312]
Only one reported domestic case has addressed this issue in the prison context. In Austin v. Hooper,[313] inmates brought a class action under § 1983 challenging the use of “chain gangs” and “hitching posts” as violating their constitutional rights and international human rights guarantees, including the ICCPR. The court concluded that the use of hitching posts constituted “cruel and unusual punishment” under the Eighth Amendment, as this technique was not used in other states. The Austin court went on to find:
Although international jurisprudence interpreting and applying the ICCPR would appear to assist this court, two sources preclude reliance on such precedent: the Supreme Court’s directive in Stanford v. Kentucky; and the reservations attached to the ICCPR. The court will therefore rest its analysis entirely on American sources to determine whether the hitching post violates evolving standards of decency. [314]
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Regarding the ICCPR reservations, one other U.S. state court has noted that the non-derogation provision of the ICCPR may void any U.S. reservation which limits the protections against “cruel, inhumane or degrading treatment or punishment,” as a fundamental protection which is “non-derogable.”[315]
If the human right asserted has developed into international customary law, it is also incorporated into our jurisprudence as federal common law.[316] The same three-prong test applied in the previous Section concerning § 1983 and treaties is applicable to claims based on international customary law: (1) are binding obligations created, (2) which are not too amorphous for the courts to competently enforce, and (3) has Congress specifically fore-
closed a remedy under § 1983?[317] Of particular importance, § 1983 provides a right of action regardless of whether another judicial remedy exists.[318]
The U.S. Supreme Court has not specifically ruled upon this issue. However, the Court’s reasoning in Maine v. Thiboutot[319] and its progeny indicate doctrinal support for an international customary law claim under § 1983. Importantly, an international customary law claim does not come with attached reservations. Though a few lower courts have recently recognized the legitimacy of such a claim, they have shown significant uneasiness with this area of law.[320] The U.S. Supreme Court ultimately will need to address this issue with the resolve and leadership already demonstrated by the Second and Ninth Circuits.[321]
There are two possible statutory bases for asserting international human rights claims: § 1983 and the Alien Tort Claims Act (ATCA). This Section reviews the potential for asserting these claims under the U.S. doctrines permitting implied causes of action under federal common law theories.
The vast majority of litigation raising international human rights claims in U.S. courts are brought under the ATCA.[322] These cases primarily concern claims by aliens, as statutorily required,[323] against aliens for international human rights violations which occurred on foreign soil.[324] The statute does not require the defendant and location of the alleged violation to be foreign, however.
ATCA claims generally allege violations of the “law of nations.”[325] Such actions are also potentially actionable under federal common law, with ac-
companying federal subject matter jurisdiction.[326] The courts facing this issue have almost uniformly sidestepped ruling on the “law of nations” claims not based on the ATCA. Although some courts have acknowledged a basis for a federal common law claim arising from “laws within the meaning of 28 U.S.C.A. § 1331,”[327] and that “a good argument can be made that customary international law should be sufficient for federal question jurisdiction,”[328] the clear pattern has been to decline ruling on the issue and limit any right of action to the ATCA.[329]
The doctrine that “international law is our law”[330] includes its federal common law Article III and Supremacy Clause status over state law.[331] However, the courts caution that neither the Supremacy Clause, Article III, nor § 1331, alone, create a right of action.[332]
That said, the issue becomes whether or not a cause of action is either “implied” under the Constitution or whether federal common law would allow the assertion of international human rights customary law claims.[333] Over a decade ago, one scholar noted “the case law in this area is truly a quagmire, it would be folly to suggest that any interpretation has talismanically defined ‘arising under’ within the meaning of § 1331.” [334] While a few courts have recently begun to step back into this quagmire, the decisions have done little to clarify these complex issues. Without direction from the U.S. Supreme Court, most lower courts are likely to continue to avoid these
important questions, using both traditional and newly grafted doctrines of avoidance when faced with non-ATCA based international human rights claims. The recent analysis in White v. Paulsen [335] is indicative of the courts’ more recent approach to these issues. The opinion is discussed at some length because of the pattern it reflects. From the outset, the White court agreed that nonconsensual medical experimentation on prisoners violated international customary law.[336] The court did not accept, however, that international customary law necessarily creates a cause of action: “[I]nternational law does not require any particular reaction to violations of law . . . . Whether and how the United States wishes to react to such violations are domestic questions.”[337] Though the court agreed that the judiciary could find an implied cause of action where no statutory cause of action exists,[338] it noted that “not every federal right of magnitude gives rise to an implied right of action.”[339]
The White court looked to the Bivens doctrine[340] as the test to be applied to a proposed implied right of action based upon international customary law. “[F]ederal courts must also consider whether there exist `special factors counseling hesitation in the absence of affirmative action by Congress.’”[341] The court went on to evaluate other Bivens factors such as the existence of adequate domestic remedies for the alleged violations of international law. On this point, it found the availability of federal and state claims determinative.[342] The court distinguished Bivens, which found an implied cause of action, as a case “where there is ‘no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from agents, but must instead be remitted to another remedy.’”[343] Curiously, the White court found the Torture Victim Protection Act (TVPA)[344] determinative on this point.[345] While conceding that the TVPA did not apply, it went on to say that “[this] does not mean this Court should not show deference to Congress’ balancing of the policy considerations underlying its action.”[346] The Court seemed to suggest that
any legislative activity in the area of torture protection precluded it from implying rights that Congress possibly had an opportunity to create.[347] The White court was not bothered by the TVPA’s clear language that the Act did not apply, ignoring explicit language in its legislative history that the Act was not an attempt to implement the Convention Against Torture, any other international human rights convention or international customary law.[348]
The Court also suggested that it lacked the competence to ascertain the international law of consent.[349] Lastly, as a basis for refraining from deciding an international issue, the White court stated that it “was being asked to address a matter that is principally entrusted by the federal constitution to Congress or the Executive.”[350] The court found this factor to be the most persuasive in “counseling judicial hesitation in the implication of additional remedies,”[351] and declining to imply a cause of action based on the violations of international law for “crimes against humanity.”[352]
The White analysis reveals the lack of doctrinal guidance provided to the lower courts in deciding these new, complex issues. It also reflects a more general attitude that recognition of a right of action for international human rights violations is to be avoided. The White court uses the “special factors counseling hesitation” language of Bivens to deny the international customary law claim, an approach without precedent in this area. The U.S. Supreme Court has primarily applied this dicta from Bivens in cases involving “the framework of the Military establishment.”[353] Reliance upon the traditional role of the executive and legislative branches in foreign policy matters is tenuous at best when the claim before it involves a U.S. citizen suing a state agency for activities occurring in the State of Washington.[354]
The White court’s conclusory finding that the Eighth Amendment provides a sufficient remedy also fails to address the scienter requirements of the “cruel and unusual” punishment clause. The medical experimentation in White involved individuals who were aware of the imposition. The question was whether or not an inmate can truly “consent” to experimentation in a potentially inherently coercive atmosphere. This issue does not likely meet the “unnecessary and wanton infliction of pain” or “deliberate disregard” thresholds of the Eighth Amendment. The Court further fails to review the implications of the relaxed “rational basis” scrutiny of Turner v. Safely[355] to claims before it.[356]
The White analysis was followed verbatim in a subsequent case in which international customary law claims were raised.[357] The new, unsupportable doctrines of avoidance seen in White will continue to find followers[358] in this undeveloped area of law, absent thoughtful guidance from higher courts.
Other courts which explore incorporating international human rights via federal common law and § 1331 have ultimately backed away, determining that a ruling on the issue is not necessary because alternative bases exist.[359]
There is no U.S. Supreme Court precedent nor doctrinal support for refusing to permit more than one claim based upon the same factual allegations.[360]
A consistent irony seen in the recent opinions discussed is the facial acceptance of the maxim that “international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”[361] The “law of nations” adjudicated on behalf of aliens is deliberately avoided when raised by citizens in opinions finding that such issues are more properly within the powers of the other branches of government.[362] The lower courts, without guidance, have seemingly worsened the existing quagmire in reviewing § 1331 jurisdiction for federal common law claims based upon international customary law.
A fundamental assumption underlying this Article is that our jurisprudence includes the consideration of international human rights claims. International human rights law is part of our law[363] and has been for over a hundred years.
Historically, federal courts have been open to resolving civil/human rights claims. Recently, significant changes in judicial doctrine, the increasing conservatism of the bench, and legislative reforms have diminished the effectiveness and will of the federal courts in remedying many civil and human rights violations. This has been particularly true for claims arising within our prison walls.
The effective protection of human rights must include the judiciary.[364] This Article seeks to broaden the discourse on these issues within our legal institutions and culture[365] by addressing these complex questions within the context of a human rights crisis at home. Accordingly, this approach adopts the adage that a vital role of both legal scholars and advocates is “translating human stories into legal stories and re-translating legal story endings into solutions to human problems.”[366] We must face up to the failure of U.S. domestic jurisprudence to incorporate international human rights standards, particularly violations within its borders.
The international scrutiny of the conditions of confinement for the rapidly increasing female inmate population has brought significant attention to a serious human rights problem. This factual context was used to enhance an understanding of this important crisis and as a case study to explore the possibilities of applying international human rights law. Just how this incorporation is achieved may not be critical. It may be incorporated by reviewing constitutional protections with reference to international standards,[367] through domestic legislation implementing international human rights conventions, or by a more direct incorporation of international law into our jurisprudence.[368]
Judicial leadership in this incorporation process is necessary for several reasons. Congress has regularly failed to pass implementing legislation when ratifying international human rights conventions. We have seen strong resistance by a critical number of Justices on the current U.S. Supreme Court to the idea of referencing international norms in determining constitutional standards. The international and regional human rights judicial tribunals are few, relatively new, possess few resources, seek political consensus, issue few decisions, and certainly cannot adjudicate more than a small number of cases. Moreover, international human rights law is in its infancy and the process of jurisprudential development has just begun.
Given this status of the law, this Article reviews the recent diminution of constitutional protections for prisoners. Federal legislation and U.S. Su-
preme Court decisions have made it increasingly difficult and sometimes impossible for prisoners to obtain protections under domestic law. At the same time, international human rights standards are gaining acceptance in our culture and are increasingly being imposed as norms throughout the world. Our domestic incorporation doctrine has not kept up with these trends. Domestic incorporation of internati>
The road to the incorporation of international human rights standards for citizens who allege abuses within our borders is laden with obstacles. This Article reviews and proposes a new use of domestic law, especially 42 U.S.C. § 1983, as a right of action similar to that provided to non-citizens through the Alien Tort Claims Act.[369] The simple lack of decisions on these issues affirms the resistance in our legal culture to apply international norms. Regarding treaty-based rights, the impact of reservations attached by other branches of governments will prove difficult for the judiciary to resolve. Ultimately, however, they must.[370] The inclusion of international customary law through § 1983 and as direct causes of action under § 1331 jurisdiction is new terrain. This Article provides doctrinal support for these theories of adjudication for international human rights claims.
While a direction seems clear, currently there are no clear, easy answers at this stage of the debate. The evolution, as in most areas of law, is likely to be incremental. The development of new legal strategies may prove difficult in the current culture for the variety of reasons discussed. But change has never come quickly nor easily in our legal institutions. If the courts do not create, develop, and implement incorporation doctrine, they will risk falling short of these international legal obligations to litigants seeking protection of the law.
This Article is intended to take small, though important, steps towards expanding U.S. jurisprudence to effectively incorporate international human rights law for violations committed both within and outside the United States, for citizens and aliens alike. Hopefully, women prisoners subject to abuse at home, and currently under international scrutiny, will benefit from the debate.
[*] Associate
Professor of Law, Director of Clinical Education, University of Baltimore
School of Law; B.A., University of Michigan (1974); J.D., Wayne State
University School of Law (1977); LL.M., Columbia University School of Law
(1991).
In memory of Judith Magid and in honor of Joyce Dixon, Jedonna
Young, Deborah Labelle, Dr. Rosemary Sarri, and the Honorable John L. Feikens,
whose tireless work, vision, and faith inspired and gave hope to so many. Many
thanks for the research support of Lucy Moran, Jessica duHoffman, William
Parra, Jeffrey Murray, and Larry Puckett. My gratitude to University of
Michigan and the Ninth Annual Roundtable on Women in Prisons (June, 1999),
which provided a forum for a presentation of this topic, and the University of
Baltimore School of Law for its financial support of this project. I also thank
Gabriel Terrasa, Esq., and Professors Raquel Aldana, Clark Cunningham, Jeffrey
Dillman, Eric Easton, Michele Gilman, Jules Lobel, Paul Reingold, Robert
Rubinson, Mortimer Sellers, Steve Shapiro, Abbe Smith and Beth Stephens. My
appreciation to Regina Gordon, Laura Garcia, Ellen Steiner, Harvey Morrell, and
Robin Klein for their assistance.
[1].
Remarks at the United Nations in New York, N.Y. (Mar. 27, 1958), quoted
in Richard Bilder, Rethinking International Human Rights: Some Basic
Questions, 1969 Wis. L. Rev. 171, 178 n.11 (1969).
[2]. The House of the Dead 76 (1857).
Dostoyevsky spent four years in a Russian prison in Omsk.
[3]. See generally Diane F. Orentlicher,
Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior
Regime, 100 Yale L.J. 2537 (1991) (advocating the duty to punish
atrocious crimes under customary international law).
[4]. See, e.g., Thomas
Buergenthal, The United Nations Truth Commission for El Salvador,
27 Vand. J. Transnat’l L. 497 (1994) (describing the process that the
Commission followed in investigating the acts of violence in El Salvador
between 1980 and 1991); David Weissbrodt & Paul W. Fraser, 14 Hum. Rts. Q.
601 (1992) (reviewing Report of the Commission on the Truth for El Salvador:
From Madness to Hope, U.N. Doc. S/25500, Annexes (1993)).
[5]. See, e.g., Dependence,
Development, and State Repression (George A. Lopez & Michael Stohl eds.,
1990); Kurt Mills, Human Rights in the Emerging Global Order (1998).
[6]. See Nancy D. Arinson, The New
Humanitarian Intervention, in Refugees in the 1990s: New Strategies for a
Restless World 37–42 (Harlan Cleveland ed., 1993) (“National
sovereignty has been revered as an almost sacred principle. Regrettably, it has
been used to bar the international community from intervening to protect and
assist internally displaced persons and other human rights victims . . .
Sovereignty must yield to human suffering.”) (emphasis added).
See generally Abram Chayes & Antonia Handler Chayes, The New
Sovereignty: Compliance With International regulatory Agreements (1995); Mills,
supra note 5, at 9–53; Henry J. Steiner &
Philip Alston, International Human Rights in Context 148–65 (1996).
[7]. Tracey Thompson, Hijacker Gets 30-Year
Prison Term, Wash. Post, Oct. 5, 1989, at A39 (quoting U.S. District
Judge Aubrey E. Robinson, Jr. of the District of Columbia).
[8]. For an excellent review of U.S. sentencing
policy and its consequences, see Mark Mauer, Race to Incarcerate (1999).
[9]. The various sources of international law
which are applicable to female prisoners in the United States are discussed in
Part III.
[10]. The Paquete Habana, 175
U.S. 677, 700 (1900) (declaring that international law must be ascertained and
administered by the courts whenever questions depending on it are presented to
the courts for determination).
[11].
See Alien Tort Claims Act, 28 U.S.C. § 1350 (1994) (“The
district court shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of
the United States.”).
[12]. The
Paquete Habana, 175 U.S. at 700 (1900).
[13]. One example is the international use of force for
humanitarian purposes. See, e.g., Richard B. Lillich, A United
States Policy of Humanitarian Intervention and Intercession, in
Human Rights and American Foreign Policy 278–98 (Donald P.
Kommers & Gilburt D. Loescher eds., 1979) (surveying the Carter
administration’s human rights policy). But see Implications of
Humanitarian Activities for the Enjoyment of Human Rights, U.N. ESCOR
Sub-Comm’n on Prevention of Discrimination and Protection of Minorities,
46th Sess., at 65, U.N. Doc. E/CN.4/Sub.2/1994/39 (1994) (questioning the legal
basis under the U.N. Charter for the use of force in Iraq, Somalia, Bosnia and
Herzegovina).
[14]. One example is foreign
aid. See U.S. Dep’t of State, Country Reports on Human Rights
Practices (1977–1998) (visited Nov. 20, 1999)
<http://dosfan.lib.uic.edu/dosfan.html>; see also Foreign
Assistance Act of 1961, 22 U.S.C.A. § 2304 (1990) (forbidding security assistance to countries that
engage “in a consistent pattern of gross violations of human
rights.”); Lawyer’s Committee for International Human Rights, Review
of the Department of State’s Country reports on Human Rights Practices
1983–1998 (1999); Olufunmilayo B. Arewa & Susan O’Rourke,
Country-Specific Legislation and Human Rights: The Case of Peru,
5 Harv. Hum. Rts. J. 183 (1992).
[15].
See, e.g., United Nations Conference of Trade Development, World
Investment Report: Transnational Corporations and Integrated International
Production, U.N. Doc. ST/CTC/156 (1993).
[16]. See Convention on the Prevention and Punishment
of the Crime of Genocide, G.A. Res. 260A (III), U.N. GAOR, 3d Sess., 179th
Plen. Mtg. at 174, U.N. Doc. A/810 (1948) (not ratified by the United States
until forty years later); Martin A. Geer, Foreigners in Their Own Land:
Cultural Land and Transnational Corporations-Emergent International Rights and
Wrongs, 38 Va. J. Int’l L. 331, 359 (1998) (critiquing the U.S.’
ratification of the Convention on the Prevention and Punishment of the Crimes
of Genocide with a number of “reservations” and
“understandings”); see also International Covenant on Civil
and Political Rights, opened for signature Dec. 16, 1966, G.A. Res.
2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 51, U.N. Doc. A/6316
(1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (not ratified by
the United States until 1988 with limiting reservations) [hereinafter
ICCPR].
[17]. See Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
G.A. Res.39/46, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc.
A/39/51 (1984) (entered into force June 26, 1987) [hereinafter Torture
Convention]; see also American Convention on Human Rights, signed
Nov. 22, 1969, 1144 U.N.T.S. 123 (not ratified by the United States, the only
O.A.S. member who has declined) [hereinafter American Convention].
[18]. See Vienna Convention on the Law
of Treaties, Jan. 27, 1980, arts. 2, 19–21, 115 U.N.T.S. 331 [hereinafter
Vienna Convention]; Louis Henkin, U.S. Ratification of Human Rights
Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L.
341 (1995) (citing criticism of the packages of reservations, understandings,
and declarations that the United States has attached to its ratifications of
human rights treaties); Dinah Shelton,
International Law, in U.S. Ratification of the International
Covenants on Human Rights 27, 29–33 (Hurst Hannum & Dana D. Fisher
eds., 1993).
[19]. See American
Convention, supra note 17; see, e.g., Alien Tort
Claims Act, 28 U.S.C.A. § 1350 (1994); In re Estate of Ferdinand
Marcos, Human Rights Litigation, 978 F.2d 493 (9th Cir. 1992); Filartiga v.
Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Beth Stephens & Michael
Ratner, International Human Rights Litigation in U.S. Courts (1996).
[20]. See, e.g., Kadic v.
Karadzic, 70 F.3d 232 (2d Cir. 1995) (acknowledging that the Torture Victim
Protection Act permitted plaintiff classes of Bosnian victims to pursue their
claims of official torture against leader of unrecognized Bosnian-Serb
entity); Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) (holding
that private actors may be liable for violations of international law even
absent state action).
[21]. 175 U.S. 677
(1900).
[22]. See John H. Jackson,
Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 Am.
J. Int’l L. 310 (1992) (discussing varied methods of treaty incorporation
among states).
[23]. 1998 marked the 50th
anniversary of the Universal Declaration of Human Rights, the most important
document in the modern age of international human rights. See generally
Stephen P. Marks & Burns H. Weston, International Human Rights at
Fifty: A Foreword, 8 Transnat’l L. & Contemp. Probs. 113
(1998).
[24]. See generally Cynthia
R.L. Fairweather, Obstacles to Enforcing International Human Rights Law in
Domestic Courts, 4 U.C. Davis J. Int’l L. & Pol’y 119 (1998);
Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective
Supranational Adjudication, 107 Yale L.J. 273 (1997); Donald J. Kochan,
Constitutional Structure As a Limitation on the Scope of the “Law of
Nations” in the Alien Tort Claims Act, 31 Cornell Int’l L.J. 153
(1998); Ellen Ash Peters, The Capacity of Judicial Institutions to Play an
Affirmative Role in the International Protection of Human Rights: Implications
For and From Domestic Law, 12 Conn. J. Int’l L. 219 (1997).
[25]. Compare Curtis A. Bradley &
Jack L. Goldsmith, The Current Illegitimacy of International Human Rights
Litigation, 66 Fordham L. Rev. 319 (1997) (arguing that courts should not
apply customary international law as federal law unless expressly authorized to
do so by the federal political branches) and Curtis A. Bradley &
Jack L. Goldsmith, Federal Courts and the Incorporation of International
Law, 111 Harv. L. Rev. 2260 (1998) (asserting that the view of customary
international law as self-executing federal common law conflicts with the
constitutional principles of separation of powers, federalism, and
representative democracy) with Harold Hongju Koh, Is International
Law Really State Law?, 111 Harv. L. Rev. 1824 (1998) (positing that Bradley
and Goldsmith’s position would result in the proliferation of varying
state rules of customary international law) and Gerald Neuman, Sense
and Nonsense About Customary International Law: A Response to Professors
Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997) (advocating that
incorporation of customary international law is within the understanding of
judicial power).
[26]. See generally
U.S. Const. art. VI; Restatement (Third) of Foreign Relations Law of the
United States § 111 (1987); Zschernig v. Miller, 389 U.S. 429 (1968)
(holding that where state laws conflict with a treaty, they are superseded by
the federal policy); Clark v. Allen, 331 U.S. 503, 508 (1947) (ruling that
“if...provisions of a treaty have not been superseded or abrogated, they
prevail over any requirements of [state] law which conflict with them”);
United States v. Pink, 315 U.S. 203, 231 (1942) (“[T]he power of a State
to refuse enforcement of rights based on foreign law which runs counter to the
public policy of forum must give way before the superior federal policy
evidenced by a treaty or international compact.”); Missouri v. Holland,
252 U.S. 416, 433–35 (1920) (“Valid treaties . . . are as binding
within the territorial limits of the states as they are elsewhere throughout
the dominion of the United States.”); United States v. Rauscher, 119 U.S.
407, 418 (1886) (ruling that a treaty is “to be regarded in courts of
justice as equivalent to an act of the legislature, whenever it operates of
itself without aid of any legislative provision”); Edye v. Robertson, 112
U.S. 580, 598–99 (1884) (“A treaty . . . is a law of the land as an
act of Congress is, whenever its provisions prescribe a rule by which the
rights of the private citizen or subject may be determined.”).
[27]. Derrick Bell, And We Are Not Saved: the
Elusive Quest for Racial Justice 6 (1989). See also Clark D. Cunningham,
Legal Storytelling: A Tale of Two Clients: Thinking About Law as
Language, 87 Mich. L. Rev. 2459 (1989) (arguing that the concept of true
storytelling is intimately part of client representation).
[28]. Farmer v. Brennan, 511 U.S. 825, 834
(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
[29]. Human Rights Watch,
All Too Familiar—Sexual Abuse of Women in U.S.
State Prisons 236–37 (1996).
[30].
See generally Report of the Special Rapporteur on Violence Against Women,
Its Causes and Consequences, U.N. ESCOR, 55th Sess., Agenda Item 12,
at 4, U.N. Doc. E/CN.4/1999/68/Add.3 (1999) [hereinafter Violence Against
Women].
[31]. See U.S. General
Accounting Office, Report to the Honorable Eleanor Holmes Norton House of
Representatives, Women in Prison: Sexual Misconduct by Correctional Staff
2–12 (1999) (focusing on staff-on-inmate sexual misconduct in four U.S.
correctional jurisdictions); see also Women in Prison: Nowhere to Hide
(NBC television broadcast, Sept. 10, 1999).
[32]. See Letter from Charlene Lowrie,
Chief Investigator, Michigan’s Office Ombudsman, to Warden, Crane
Women’s Facility (Apr. 26, 1993), reprinted in Human Rights Watch,
supra note 29, at 236 n.37. At
the Scott facility, 67% of the female inmates who agreed to answer questions
reported feeling uncomfortable during shakedowns, while 33% reported being
groped, fondled, or inappropriately touched at one time or another during
shakedown by staff. At the Crane facility, 35% of the women reported a problem
with officers watching prisoners shower; 18% personally experienced unwanted
sexually suggestive remarks; 18% had seen staff engage in a sexual encounter
with a prisoner; 29% witnessed staff sexually harass other prisoners; 65% felt
uncomfortable during shakedowns; 35% were aware of situations involving the
exchange of sex for favorable treatment. See id.
[33]. Martha Minow, Making All the Difference:
Inclusion, Exclusion and American Law 216 (1990).
[34]. 934 F.2d 703 (6th Cir. 1991).
[35]. Id. at 715.
[36]. Glover was an action brought on
constitutional grounds challenging the lack of educational programs for female
inmates. The litigation had quite an extensive history. The district court
first found a constitutional violation. See Glover v. Johnson, 478 F.
Supp. 1075 (E.D. Mich. 1979). The district court further appointed a special
administrator for the case. See Glover v. Johnson, 659 F. Supp. 621
(E.D. Mich. 1987). The Court of Appeals, however, vacated the order appointing
an administrator and remanded to the district court to ascertain
defendants’ compliance with the prior order. See Glover v. Johnson,
855 F.2d 277 (6th Cir. 1988). On remand, the district court found prison
officials in contempt for failure to comply with the previous injunction, to
which the defendants appealed. See Glover v. Johnson, 721 F. Supp. 808
(E.D. Mich. 1989). The Court of Appeals held that although the prison officials
failed to comply with the mandated measures and the lower court had properly
appointed an administrator, the officials were wrongfully held in contempt by
the district court. See Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991).
[37]. The following cases illustrate
successful cases in other states that were similar to Glover:
Patterson v. Geshores, No. ECDU-95-397 (Ca. 1995); Cason v. Seckinger, No.
84-313-1-MAC (Ga. 1984); Blackman v. Coughlin, No. 84-5698 (N.Y.
1984).
[38]. See, e.g., Valerie
Basheda, U.S. Women’s Prisons a Disaster, Detroit News, Mar. 30,
1995, at B1 (reporting on the violations found by the U.S. Justice Department
after a 10-month investigation of Michigan’s women prisons).
[39]. See Human Rights Watch, supra
note 29, at 235. See also
Michigan Women’s Commission, Unheard Voices: A Report on Women in
Michigan County Jails (1993).
[40]. The
other states were Georgia, California, Illinois, and New York.
[41]. See Human Rights Watch,
supra note 29.
[42]. Human Rights Watch, supra note
29, at 1–2. A former corrections
officer reported that she tried to help an abused inmate and was stabbed by
other officers, who were shielded by a powerful union that allows them to act
with impunity. One inmate tried to commit suicide and was placed naked in
five-point restraints without a blanket for nine hours, subjected to 24-hour
surveillance for 29 days. See id. at 36.
[43]. In a report to the Governor regarding
Michigan’s female prisons, Deval Patrick, Chief U.S. Assistant Attorney
General, Civil Rights Division, found:
There is sexual abuse by both male and female guards. Pregnancies have resulted from these activities and the authorities have punished women by revoking their parole. Nearly every inmate interviewed by the Justice Department reported various sexually aggressive acts by officers who corner inmates in cells and during work. Corrections officers are also said to expose their genitalia and make suggestive comments. Sexually suggestive comments and verbal abuse are so rife that they are treated as commonplace; inappropriate pat-searches are conducted by corrections officers. During routine pat-searches the officers touch all parts of the women’s bodies, fondling and squeezing breasts, buttocks and genital areas in a manner not justified by legitimate security needs. In addition, many searches are conducted when the women are in their nightgowns in the evening; there is improper visual surveillance by the corrections officers. Many officers stand outside cells and watch prisoners undress and use the showers and toilets. Maintenance workers, in addition to corrections officers, are allowed to view women in various degrees of undress. The degree and kind of surveillance employed exceed legitimate security needs.
Human Rights Watch, supra note 29, at 236–37.
[44]. Human Rights
Watch, Nowhere to Hide: Retaliation Against Women in Michigan State Prisons
(visited Mar. 5, 2000) <http://www.hrw.org/hrw/reports98/women/Mich.htm>.
The full text of this report is available in 10 Human Rights Watch Reports
2(G), 5 (1998). Michigan was the only state for which a follow-up report on
retaliation was issued.
[45]. See
id.
[46]. See Human Rights
Watch, supra note 29, at
13–15.
[47]. See Amnesty
International, United States of America: Rights for All (1998).
[48]. See id. at 56–65, 70.
[49]. See id. at 150.
[50]. Violence Against Women,
supra note 30, at 4, para. 9.
See also Human Rights Watch, supra note
29, at 236–37. A prisoner who
attempted suicide was placed in solitary for 20 days in four-point restraints,
usually naked and allowed to shower only once a week, when she pleaded for her
light to be turned off so she could sleep until a corrections guard finally
tear-gassed her. See id.
[51]. In
Nunn v. Michigan Department of Corrections, 1997 U.S. Dist. LEXIS 22970
(Feb. 4, 1997), the plaintiffs asserted claims under the First, Fourth, Eighth,
Ninth, and Fourteenth Amendments to the U.S. Constitution, 42 U.S.C. §
1983, and the Violence Against Women Act, 42 U.S.C. § 13981 (1995).
[52]. 42 U.S.C. § 1997 (1994).
[53]. In the wake of the publicity and
litigation described, the Michigan legislature is rushing a debate on bills
which would define “person” under state civil rights statutes to
exclude prisoners from asserting civil rights claims. See Rights
Stripped: Lansing Rushes to Keep Prisoners in Their Place, Detroit Free
Press, Dec. 8, 1999, at A12; Pete Waldmeier, Proposed New Rules for Cons
Strip Away Last Shred of Dignity, Detroit News, Dec. 9, 1999, at 10.
[54]. “At the invitation of the
Government of the United States of America . . . I visited Washington, D.C. and
the states of New York, Connecticut, New Jersey, Georgia, California, Michigan
and Minnesota to study the issue of violence against women in the state and
federal prisons.” Violence Against Women, supra note
30, at 3.
[55]. See Sue Kline, A Profile of
Female Offenders in State and Federal Prisons, in Female Offenders:
Meeting the Needs of a Neglected Population (American Correctional Association
ed., 1993). The rate of growth for men during same period was 147%. See
id. at 1.
[56]. See U.S.
Dep’t of Justice, Bureau of Justice Statistics Sourcebook of Criminal
Justice Statistics 518 (Kathleen Maguire & Ann L. Pastore eds., 1996)
[hereinafter Sourcebook of Criminal Justice Statistics]. From 1980 to 1989, the
number of women in state and federal institutions more than tripled. From 1990
to 1995, the number of women in state and federal institutions increased by
over 50%. This compares to earlier years: from 1925 to 1980, the number of
women in state and federal institutions roughly doubled every 27 years. Since
1980, it has roughly doubled every six years. Comparatively, from 1980 to 1989,
the male population in state prisons increased 112%, while the female
population increased 202%. See Kline, supra note
55, at 1.
[57]. Violence Against Women,
supra note 30, at 44, para. 190. 10% of INS detainees
are women. See id.
[58].
Id.
[59]. These problems are often
further aggravated in private facilities. See Warren L. Ratliff, Due
Process Failures of America’s Prison Privatization Statutes, 21 Seton
Hall Legis. J. 371 (1997). For example, at a private detention facility in New
Jersey, Esmor’s mismanagement and corruption sparked a costly riot that
forced INS to resume control. See id. at 378. Esmor’s ill-paid and
poorly trained staff physically abused detainees, stole their property, and
served inedible food in dilapidated, unsanitary facilities. Following the
INS’s revocation of Esmor’s contract, two officers were indicted for
bribery and conspiracy to smuggle illegal immigrants into the United States.
See id. at 378–79.
[60]. The
cost of confining inmates in the United States doubled in the last five years,
reaching $50 billion annually, or $33,334 per inmate per year. See id.
at 376–77 n.8. Estimates show that one 700-bed jail and one 1600-bed
prison need to be opened every week. See id.
[61]. See id. The U.S. prison
population is approximately 1.6 million; China is next with 1.2
million. The U.S.’ annual population growth
rate is 1% per year, but 15% within its prisons. Another 1 million people are
in the parole system. See id. at 372. See generally Martin E.
Gold, The Privatization of Prisons, 28 Urb. Law. 359 (1996).
[62]. See Nicole Hahn Rafter, Partial
Justice: Women, Prisons and Social Control 182 (2d ed. 1990). The crowding
crisis became acute in the 1980s. The initial solution was to build at the
existing sites where women were held. Id. However, Alabama, Florida, and
North Carolina are beginning to abandon the idea of gathering all women
prisoners under one roof. See id. at 183–84.
[63]. Observers claim the increase relates to
“the war on drugs and related changes in legislation, law enforcement
practices, and judicial decision-making. In fact, drug-related offenses
accounted for 55% of the increase of the female population between 1986 and
1991.” Human Rights Watch, supra note
29, at 17 n.6, citing Russ Immarigeon
& Meda Chesney-Lind, Women’s Prisons: Overcrowded and Overused 3
(National Council on Crime and Delinquency ed., 1992) and Tracy L. Snell &
Danielle C. Morton, Women in Prison: Survey of State Prison Inmates 1991
(Bureau of Justice Statistics ed., 1994). Ninety-six percent of women
interviewed for drug smuggling, charged with A-1 drug felonies and sentenced to
life imprisonment under N.Y.’s Rockefeller Drug laws had no prior criminal
record. See Violence Against Women, supra note
30, at 7, para. 18. See also
Barry R. McCaffrey, Speech delivered at the New York State Conference on
Substance Abuse and the Criminal Justice System (June 30, 1999) (“The
number of people jailed for drug offenses has grown from approximately 50,000
in 1980 tooperty offenses (6.3%) and extortion, bribery or
fraud offenses (6.2%). By comparison, in 1981, only 26% of women inmates were
incarcerated for drug related offenses. See id.
[65]. See generally Sourcebook of
Criminal Justice Statistics, supra note 56. However, there are some female death
row residents. As of 1995, 1.6% of the 3054 prisoners under sentence of death
in federal prisons were female. See id. at 556. See also
Nicole Hahn Rafter, Equality or Difference?, in Female Offenders:
Meeting the Needs of a Neglected Population (American Correctional Association
ed., 1993).
[66]. In state prisons, 73% of
women are under 35 and 15% of arrests in the United States were females under
age 18. See Amnesty International, Betraying the Young: Children in the
U.S. Justice System 53 (1998).
[67]. African American women constitute 14.5%
of the U.S.’ female population, but 52.2% of its prison’s female
population, and have been hardest hit by the increase. Between 1986 and 1991,
the number of black non-Hispanic women in state prisons for drug offenses
nationwide increased more than eight times, from 667 to 6193, double that for
Black/non-Hispanic males and more than triple that for white non-Hispanic
females. See Human Rights Watch, supra note
29, at 16–18 n.10; Kline,
supra note 55, at 99. See
generally Beth E. Richie, Compelled To crime—The Gender Entrapment of
Battered Black Women (1996).
[68]. See
Ellen Barry, Women Prisoners and Health Care, Locked Up and Locked Out in
Man Made Medicine (Karry L. Moss ed., 1996). See generally T.A. Ryan
& James B. Grassano, Pregnant Offenders: Profiles and Special
Problems, in Female Offenders: Meeting the Needs of a Neglected
Population (American Correctional Association ed., 1993).
[69]. Some facilities, for example, Bedford
Hills in New York, have recognized this issue and instituted programs
consisting of activities designed to prevent family disintegration, enhance
parenting skills, and prepare inmates and their families for reunification.
See Violence Against Women, supra note
30, at 42, para. 180.
[70]. See generally Pargo v. Elliott,
894 F. Supp. 1243 (S.D. Iowa 1995). Notably, the court recognized the frequency
of female inmates as custodial parents in endorsing the necessity for a family
preservation program and found that “based on the factors of population
size, security level, types of crimes, lengths of sentences, and special
characteristics of inmates, the court concludes that [these] inmates are not
similarly situated to the various categories of male inmates.”
Id. at 1261 (emphasis added).
[71].
Women and children make up 80% of the U.S. poor. See Rafter,
supra note 62, at 178.
[72]. See id.
[73]. See id.
[74]. See id. at 178–79.
[75]. See generally W. Travis Lawson
Jr., M.D. & Lt. Lena Sue Fawkes, HIV, AIDS and the Female Offender,
in Female Offenders: Meeting the needs of a Neglected Population
(American Correctional Association ed., 1987).
[76]. See generally Scarlett V. Carp & Linda S.
Schade, Tailoring Facility Programming to Suit Female Offenders, in
Female Offenders: Meeting the Needs of a Neglected Population (American
Correctional Association ed., 1987).
[77].
See id.
[78]. See id. See
also Study Backs Views of Prisons as the New Mental Hospitals,
Baltimore Sun, July 12, 1998 at 3A (reporting on Justice Department study
that reveals that 283,800 inmates (16%) in state and federal facilities suffer
from severe mental illness).
[79].
See Jordan v. Gardner, 986 F.2d 1521, 1539 (9th Cir. 1993). See
also Violence Against Women, supra note
30, at 9, para. 29.
[80]. See Violence Against Women,
supra note 30, at 9, para. 29.
See also Rafter, supra note 62, at 178–79; Richie, supra
note 67, at
69–100.
[81]. See Human Rights
Watch, supra note 29, at
19–20. A 1988 study found that 88% of incarcerated women sampled had
experienced childhood physical or sexual abuse, adult rape, or battering.
See id.
[82]. See infra
Parts III–IV and Annex Tables.
[83]. See Table A.1 in Annex. For an excellent
overview of the different parental experiences between male and female inmates
in the United States, see William W. Patton, Mommy’s Gone, Daddy’s
in Prison, Now What About Me?: Family Reunification for Children of Single
Custodial Fathers in Prison—Will the Sins of Incarcerated Fathers Be
Inherited by Their Children?, 75 N.D. L. Rev. 179 (1999). See also
Rafter, supra note 62, at
28–31.
[84]. See Rafter,
supra note 62, at xxvi–xxix, 3–4.
[85]. See id. at 13–16.
[86]. See Blake McKelvey, American
Prisons: A Study in American Social History Prior to 1915, at 77 (1968).
Fortunes of women convicts in different states varied considerably. While
Connecticut and Missouri were erecting new cell houses with separate yards for
women, Illinois crowded women into the fourth story of the warden’s house,
using its women’s building for male population overflow. Agitation for the
better care of women in prison prompted the appointment of matrons in an
increasing number of prisons. New York continued to maintain its prison at Sing
Sing as the only separate prison for women in the country. Two more decades
would pass before New York provided for the care of some of its women felons in
special reformatories. See id. at 78.
[87]. See id. at 65–66. In the 1870s, a secondary
prison in Detroit became the first women’s “reformatory” in
America developed by reformer Zebulon Brockway. See id. Reformatory
penology overlooked women in the last part of the 19th century, as their small
population readily fit into the household economy of both jails and prisons. In
New York, however, Josephine Shaw Lowell finally roused the state to establish
the Hudson House of Refuge for women convicted of misdemeanors, chiefly those
involving sex morality. These were the first women inmates to receive literary
and trade instruction, separate cottages, and “wholesome” farm
labor—the complete reformatory treatment. It heralded a new day for female
prisoners. See id. at 116, 140–41. Ironically, Michigan’s
Detroit House of Corrections was the facility involved in the first major
federal civil rights equal protection lawsuit of behalf of women prisoners in
1979. See Glover v. Johnson, 478 F. Supp. 1075 (E.D. Mich. 1979).
[88]. See Mckelvey, supra note
86, at 185–86; Matthew J. Mancini, One
Dies, Get Another: Convict Leasing in the American South, 1866–1928
(1996). The slave traditions of the lease system recognized no distinctions
until the practice of dividing the convicts into “full-hands,”
half-hands,” and “dead hands” revealed the advantage of separate
treatment for women and juveniles. Texas, North Carolina, Alabama, and Virginia
were the first state prisons to establish asylum farms. By the close of the
century, only Tennessee and Louisiana had failed to remove women and children
from the general prison population. See id. at 212.
[89]. Dr. Katherine B. Davis took charge of
New York’s reformatory for women at Bedford Hills in 1900 shortly after it
was opened to major offenders and made it the most active penal experiment in
America. The cottage system was developed to supplement the first building
equipment and provide a more homelike environment, the trade department was
designed to train the women for occupations open to them after discharge, and
special attention was given to the medical treatment of sex offenders.
See Mancini, supra note 88, at 214; Rafter, supra note
62, at
33–35.
[90]. See Rafter,
supra note 62, at 82.
Early founders of women’s reformatories had little interest in dealing
with serious felons, preferring to rehabilitate misdemeanants frequently guilty
of offenses against chastity. See id.
[91]. See id. at 181–84. By 1992, the Federal
Bureau of Prisons held 5103 women—7.4% of the 68,779 inmates it then
housed. All 5103 were housed in 13 facilities, 6 of which were all-female. The
largest all-female facility is the Federal Medical Center in Lexington,
Kentucky, which holds more than 1800 women, or 36% of all female inmates in the
Federal system. See Kline, supra note
55, at 1.
[92]. See Sourcebook of Criminal
Justice Statistics, supra note 56, at 3.
[93]. See generally Kenneth L. Avio, On Private
Prisons: An Economic Analysis of the Model Contract and Model Statute for
Private Incarceration, 17 New Eng. J. of Crim. & Civ.
Confinement 265 (1991); Martin P. Sellers, The History and Politics of Private
Prisons: A Comparative Analysis (1997). Historically, the economics of prison
management have often been subject to a sure profit analysis. In a 1831 letter,
Judge Wells, Director of the State Prison of Connecticut, provided the
following figures to justify the building of a new penal facility:
“cost of 500 convict prison $40,000 ($80 per prisoner); cost of food
clothing and bedding per year $19,100 ($22 per prisoner). Total annual earnings
of estimated 450 prisoners who can work 300 days a year at 25 cents per day
totaled $33,750. Deducting $19,100 in expenses, net gain is $14,650.” G.
De Beaumont & A. De Toqueville, On the Penitentiary System in the United
States and Its Application in France 178–80 (Herman R. Lantz ed. &
Francis Lieber trans., Carey, Lea & Blanchard 1964) (1833).
[94]. See David Shichor, Punishment for
Profit: Private Prisons/Public Concerns 142 (1995).
[95]. The federal prison system is operating
at 165% over capacity. California is at 181% of their rated capacity. Barry
McCaffrey, Director of the Office of National Drug Policy, Speech at the New
York State Conference on Substance Abuse and the Criminal Justice System (June
30, 1999).
[96]. Since the 1980s, the
government has turned to private companies to operate correctional facilities.
From 1991 to 1995, total beds under contract increased at an average of 35% per
year. See Martin Gold, The Privatization of Prisons, 28 Urb. Law.
359, 371–72 (1996).
[97]. It is
unclear if rehabilitation and other public goals have been furthered.
See Paul Howard Morris, Note: The Impact of Constitutional Liability
on the Privatization Movement After Richardson v. McKnight, 52 Vand. L.
Rev. 489 (1999). There are indications that privatization compromises public
good and only benefits corporations. It is also criticized for
unconstitutionally delegating government functions that cannot be ethically
delegated to the private sector. It sacrifices quality of service, privacy, and
individual liberty for profit. Privatization eliminates secure, well-paying
government jobs in favor of less-secure jobs. The profit motive prevents
private corporations from working for the public good. See id. at
491–99. An example of the growth potential of corporations running private
prisons is Corrections Corporation of America (CCA). CCA was started in 1983 by
founders and investors who had earlier started Kentucky Fried Chicken. CCA
reported its first profit in fourth quarter 1989 with 12 facilities.
Privatizing Correctional Institutions 27 (Gary W. Bowman et al. eds., 1993)
[hereinafter Privatizing Correctional Institutions]. In 1999, CCA, now called
Prison Realty Trust, Inc., is a publicly traded stock corporation with 51
prisons in 18 states and Britain. See Prison Realty Shares Tumble, Payout is
Cut, CEO is Leaving, Baltimore Sun, Dec. 28, 1999, at 3C. It is
questionable, however, whether public funds have been saved through
privatization. See Privatizing Correctional Institutions, supra,
at 375. Nonetheless, “[o]ver the last 20 years, privatization has
experienced an unprecedented level of global support.” Morris at
490–91.
[98]. See Henkin,
supra note 18, at 342 (emphasis added).
[99]. See Amnesty International,
supra note 66, at 3–6; Human Rights Watch,
supra note 29.
[100]. See, e.g., Harmelin v. Michigan, 501
U.S. 957 (1991); Turner v. Safely, 482 U.S. 78 (1987).
[101]. See Prison Litigation Reform
Act of 1995, Title VIII of the Omnibus Budget Reconciliation Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996) [hereinafter PLRA].
[102]. See ICCPR, supra note
16.
[103]. See Torture Convention,
supra note 17.
[104]. Universal Declaration of Human
Rights, adopted Dec. 10, 1948, G.A. Res. 217A (III), UN Doc. A/810, at
71 (1948) [hereinafter Universal Declaration].
[105]. See Torture Convention,
supra note 17.
[106]. Another related right includes
privacy. “No one shall be subjected to arbitrary or unlawful interference
with his privacy . . . .” ICCPR, supra note
16, art. 17. See also U.S. Const.
amend. IV; Bell v. Wolfish, 441 U.S. 520, 559 (1979) (stating cavity
searches after contact visits were reasonable because of security concerns);
Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).
[107]. See discussion of
Harmelin, 501 U.S. 957 (1991) and 482 U.S. 78 (1987) infra text
accompanying notes 129–144. See also Fisher v. Goord, 981
F. Supp. 140, 175–76 (W.D.N.Y. 1997) (finding that verbal harassment,
unsolicited stroking, and kissing of a female inmate does not rise to the level
of an Eighth Amendment violation. The behavior of a guard who showed a female
inmate naked pictures of himself, called her names, exposed himself, kicked
her, and twisted her breasts, was “inappropriate,” but it was
“questionable” whether it constituted an Eighth Amendment
violation.); Peddle v. Sawyer, 64 F. Supp. 2d 12, 16 (D. Conn. 1999) (finding
that isolated allegations of sexual harassment, including threats in demand for
sex and regular groping of breast and groin areas during searches, may not
violate Eighth Amendment standards); Adkins v. Rodriguez, 59 F. 3d 1034, 1036
(10th Cir. 1995) (holding that absent physical contact, there is no clear
established right to be free of sexual harassment in prison); Zehner v. Trigg,
133 F.3d 459, 461 (7th Cir. 1997) (finding that the PLRA applies to the Eighth
Amendment claims and “does not permit recovery for custodial or emotional
damages ‘without showing a physical injury’”); Baez v. Gosline,
No. 96-CV-1889 (N.D.N.Y. Mar. 5, 1999) (requiring plaintiff to meet the Eighth
Amendment standards of de minimis injury, that is “significant,
serious, or more than minor.”) Evidence showed he was improperly frisked
on thirty occasions in which [he] felt pain when his testicles were squeezed.
“Viewed cumulatively, the physical injuries in the circumstances here
remain de minimis given the momentary duration of the pain on each
occasion and the absence of any permanency or even temporary impairment.”
Id.; U.S. v. Sanchez, 1999 WL 305090, at *4 (A.F.Ct.Crim. App., Apr. 12,
1999) (finding failure of plaintiff to “prove, as an objective
matter” that the verbal abuse and sexual harassment caused her
“pain” in violation of the Eighth Amendment); Moya v. City of
Alburquerque, No. 96-1257 (D. N.M. Nov. 17 1997) (dismissing female
prisoners’ claim that they were strip searched by male guards, with a
resulting suicide attempt; a “few hours of lassitude and nausea and the
discomfort of having her stomach pumped is not more than de minimis
physical injury”).
[108]. A
thorough discussion of all preclusionary rules and their application to
international human rights claims is beyond the scope of this Article. However,
a variety of judicial doctrines restrict the ability of female prisoners to
pursue sexual abuse claims for federal constitutional violations. See,
e.g., Flechsing v. United States, 991 F.2d 300 (6th Cir. 1992) (finding no
state or federal statutory claim for the rape of a female inmate by a
corrections officer, as the act was outside the scope of the employee’s
employment); Scott v. Moore, 114 F. 3d 51 (5th Cir. 1997) (holding that male
staffing in a female housing unit where plaintiff was repeatedly raped over an
eight hour shift by a male guard did not constitute a constitutionally
impermissible risk creating municipal liability); Hovater v. Robinson, 1F.3d
1063 (10th Cir. 1993) (finding that qualified immunity precludes liability for
county sheriff when he had no actual knowledge that guard who raped female
prisoner might be a risk); Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998);
Giron v. Corrections Corp. of America, 191 F.3d 1281 (10th Cir. 1999). For an
extensive review of the practical problems related to burden of proof,
liability limitations, including various immunities, see Amy Landerberg, Note,
The ‘Dirty Little Secret’: Why Class Actions Have Emerged as the
Only Viable Option for Women Inmates Attempting to Satisfy the Subjective Prong
of the Eighth Amendment in Suits for Constitutional Sexual Abuse, 40 Wm.
& Mary L. Rev. 323 (1998). These doctrines include Eleventh Amendment
immunity, “qualified” and “absolute” immunities for
individuals and entities, “state of mind” laity standards, judicial
and legislative immunities, limitations of statutory application such as the
definition of a “person” under 42 U.S.C. § 1983, and the
exhaustion of remedies doctrine. For an excellent overview of these doctrines
under domestic law, see Martin Schwarts & John E. Kirklin, Section 1983
Litigation: Claims and Defenses (1997); Constitutional Torts (Sheldon H. Nahmod
et al. eds., 1995). See also Stephens & Ratner, supra note
19.
[109]. This summary reflects the consensus in discussion
among advocates at the 9th Annual Roundtable on Women in Prison, Jun. 30, 1999,
University of Michigan. International human rights litigation was
characterized, in part, as a form of mobilizing shame to protect victims. The
proceedings of this roundtable have been compiled in Breaking Down the
Walls: Communities in the New Millenium (Jean M. Borger ed., 1999). See
generally Stephens & Ratner, supra note
19.
[110]. While purely anecdotal, this author has lectured to
law school students on human rights issues in a wide range of countries.
Remarkably, whether in India or Brazil or elsewhere, the students invariably
question U.S. practices, asking how the United States justifies violating
international law when it executes minors and how the United States can
credibly criticize other nations for violations of human rights when it refuses
to follow the international standards on punishment of minors.
[111]. See generally D. Bishop et
al., The Transfer of Juveniles to Criminal Court: Does it Make a
Difference?, 42 Crime & Delinq. 171 (1996); Amnesty International,
supra note 66. Many scholars and
policy makers also argue that the growing tendency in the United States to
punish and prosecute children as adults is inconsistent with treaties and
standards set by the international community. See id. at 36.
[112]. The human rights standard prohibiting
the execution of minors is specified in numerous international treaties signed
and/or ratified by the United States, including the International Covenant on
Civil and Political Rights (ICCPR) (ratified), the American Convention on Human
Rights (ratified), the Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment and Punishment, and the Convention on the Rights of the
Child. These conventions are evidence of customary international law. See
Chisholm v. Georgia, 2 U.S. 419 (1793); Filartiga v. Pena-Irala, 630 F.2d
876, 877 (2d Cir. 1980). See also International Law, Cases and Materials
164 (Louis Henkin et al. eds., 3d ed. 1993). The ICCPR provides: “the
death penalty must not be imposed for crimes committed by people when they
[are] under 18.” ICCPR, supra note
16, art. 6(5). The United States
ratified the ICCPR in 1993, but reserved the right not to implement section
6(5). See Louis Henkin, Introduction to The International Bill of
Rights (Louis Henkin ed., 1981), reprinted in International Human Rights
176 (Richard B. Lillich ed., 1991). This reservation has been the subject of
criticism which questions its validity. See Ved P. Nanda, The United
States Reservation to the Ban on the Death Penalty for Juvenile Offenders: An
Appraisal Under the International Covenant on Civil and Political Rights,
42 DePaul L. Rev. 1311, 1331–32 (1983); William A. Schabas, Invalid
Treaty Reservations to the International Covenant on Civil and Political
Rights: Is the United States Still a Party?, 21 Brook. J. Int’l
L. 277 (1995); Domingues v. State, 961 P.2d 1279, 1281 (Nev. 1998).
[113]. See Ronald J. Mann, The
Individualized-Consideration Principle and the Death Penalty as Cruel and
Unusual Punishment, 29 Hous. L. Rev. 493; Convention on the Rights of the
Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc.
A/44/49 (1989) (entered into force Sept. 20, 1990) [hereinafter Children’s
Convention]. See also Status of the Convention on the Rights of the
Child, U.N. ESCOR Comm’n on Hum. Rts., 54th Sess., Agenda Item 20, at
2, U.N. Doc. E/CN.4/1998/99 (1997); Connie de la Vega, Can a United States
Treaty Reservation Provide a Sanctuary for the Juvenile Death Penalty?, 32
U.S.F. L. Rev. 735, 753 (1998).
[114].
See Children’s Convention, supra note
113. Somalia is the only other U.N.
member state that has failed to ratify this Convention. The American Convention
on Human Rights specifically prohibits the death penalty for children. During
the drafting phase, the United States did not object to the prohibition of the
execution of juvenile offenders and signed, but never ratified the Convention.
See O.A.S.T.S. N.36, OS OFF.Rec.OEA/SERL/V/IL. 23 Doc.21 REV.6 (1979).
The U.S.’ status as a signatory, however, may obligate it to not act
inconsistently with the object and purpose of the treaty. See Vienna
Convention, supra note 18, art.
18.
[115]. In Thompson v.
Oklahoma, 487 U.S. 815, 830–31 (1988) the U.S. Supreme Court
recognized the world’s opposition:
[t]he conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by leading members of the Western European community. Thus the American Bar Association and the American Law Institute have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.
487 U.S. 815, 830–31 (1988) (citations omitted).
[116]. Amnesty
International, Juveniles and The Death Penalty 3 (1988). Only eight countries
have allowed such executions in the past 15 years, indicating almost universal
recognition of the prohibition. Human Rights Watch, Human Rights Watch Report
1996, at 342 (1995) [hereinafter Human Rights Watch World Report].
[117]. Twenty-four U.S. states permit the
use of the death penalty (minimum age in brackets): Alabama (16), Arizona (16),
Arkansas (16), Delaware (16), Florida (16), Georgia (17), Idaho (16), Indiana
(16), Kentucky (16), Louisiana (16), Mississippi (16), Missouri (16), Montana
(16), Nevada (16), New Hampshire (17), North Carolina (17), Oklahoma (16),
Pennsylvania (16), South Carolina (16), South Dakota (16), Texas (17), Utah
(16), Virginia (16), Wyoming (16). See Human Rights Watch World Report,
supra note 116, at n.159. The
U.S. federal government, however, has set 18 as the minimum age for the death
penalty. However, under international law, the United States has a
responsibility to ensure that federal and state governments comply with
international obligations. Recently, by Executive Order, the United States has
recognized that it must “fully respect and implement its obligations under
the international human rights treaties to which it is a party, including the
International Covenant on Civil and Political Rights, the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the
Convention on the Elimination of All Forms of Racial Discrimination,” and
other relevant treaties concerned with the protection and promotion of human
rights to which the United States is a party. See Exec. Order No.
13,107, 63 FR 68991, 1998 WL 865822 (Pres.) (Dec. 10, 1998). However, state
practices continue unchanged.
[118].
“[A] norm accepted and recognized by the international community of States
as a whole from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same
character.” Vienna Convention, supra note
18, art. 53. Sean Sellers was executed
on Feb. 4, 1999 in Oklahoma, the first person since 1959, for a crime committed
at age 16. V. Dion Haynes, Deeds of Youth and Death Row, Chi. Trib.,
Feb. 4, 1999, at 3. See generally Susan Raeker-Jordan, A Pro-Death,
Self-Fulfilling Constitutional Construct: The Supreme Court’s Evolving
Standard of Decency for the Death Penalty, 23 Hastings Const. L.Q. 455
(1996).
[119]. 487 U.S. 815 (1988).
the Protection of Civilian Persons in Time of
War, only in determining congressional intent regarding recent domestic
legislation).
[123]. Id. at 869
n.4. Justice Scalia’s dissent, joined by Chief Justice Rehnquist and
Justice White (Justice Kennedy did not participate) went on to say,
[t]hat 40% of our States do not rule out capital punishment for 15-year-old felons is determinative of the question before us here, even if that position contradicts the uniform view of the rest of the world. We must never forget that it is a Constitution for the United States of America that we are expounding. The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so ‘implicit in the concept of ordered liberty’ that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. See Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (Cardozo, J.). But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution. In the present case, therefore, the fact that a majority of foreign nations would not impose capital punishment upon persons under 16 at the time of the crime is of no more relevance than the fact that a majority of them would not impose capital punishment at all, or have standards of due process quite different from our own.
Id.
[124]. 492 U.S.
361 (1989).
[125]. Id.
[126]. Id. at 370 n.1. The dissent of
Justice Brennan (joined by Justices Marshall, Blackmun and Stevens), referred
to international practices and law:
Our cases recognize that objective indicators of contemporary standards of decency in the form of legislation in other countries is also of relevance to Eighth Amendment analysis. Many Countries, of course—over 50, including nearly all in Western Europe—have formally abolished the death penalty, or have limited its use to exceptional crimes such as treason . . . . Twenty-seven others do not in practice impose the penalty . . . . Of the nations that retain capital punishment, a majority—65—prohibit the execution of juveniles . . . . Since 1979, Amnesty International has recorded only eight executions of offenders under 18 throughout the world, three of these in the United States. The other five executions were carried out in Pakistan, Bangladesh, Rwanda, and Barbados. In addition to national laws, three leading human rights treaties ratified or signed by the United States explicitly prohibit juvenile death penalties. Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved.
Id. at 389–90 (footnotes omitted).
[127]. Since
Stanford, three of the dissenters, Justices Brennan, Marshall and
Blackmun, as well as Justice White, who concurred in the opinion of the Court,
have left the bench. A change in the Stanford position would require the
votes of all four of the new Justices (Souter, Thomas, Ginsburg and Breyer) and
Justice Stevens.
[128]. Compare
Ingraham v. Wright, 430 U.S. 651 (1977) (corporal punishment is “not
punishment within the meaning of the Eighth Amendment”) with the
ICCPR, supra note 16, art. 7.
[129]. See Harmelin v. Michigan, 501
U.S. 957 (1991); Turner v. Safely, 482 U.S. 78 (1987).
[130]. See Harmelin, 501 U.S.
957.
[131]. U.S. Const. amend. VIII.
[132]. See Harmelin, 501 U.S. at
961.
[133]. § 333 Mich. Comp. Law.
Ann., 7403(2)(a)(i) (1999).
[134].
See Harmelin, 501 U.S. at 995 n.117. (Justice Scalia, joined by Chief
Justice Rehnquist and Justices O’Connor and Souter, rejected the
proportionality test of Solem v. Helm, 463 U.S. 277 (1983)).
[135]. See id. at 965 n.117.
[136]. See generally David Sosa,
The Unintentional Fallacy, 86 Cal. L. Rev. 919 (1998) (reviewing Antonin
Scalia, A Matter of Interpretation (Amy Gutman ed., 1997)) (discussing Justice
Scalia’s theories of statutory and constitutional interpretation).
[137]. “The problem with this reading
of the clause is that it assumes that the Eighth Amendment prohibits only
punishments that are both cruel and unusual. The text readily could bear a
reading, consistent with the Court’s tradition, that bars both cruel and
unusual punishments.” Mann, supra note
113, at 541 n.8 (citing Reed Dickerson,
The Fundamentals of Legal Drafting § 6.2, at 109–10 (2d ed.
1986) (discussing the ambiguity in the use of “and” to join modifiers
that are not mutually exclusive) and Maurice B. Kirk, Legal Drafting: The
Ambiguity of “And” and “Or,” 2 Tex. Tech L. Rev. 235,
240 (1971) (noting that “and” is particularly ambiguous when used to
join two adjectives that modify a plural noun)).
[138]. See Thomas v. Maryland, 634
A.2d 1 (Md. 1993).
[139]. Id. at
5.
[140]. See Illinois v. Belton,
682 N.E.2d 287 (Ill. 1993).
[141].
Id. at 293.
[142]. States whose
consitutions use the phrase “cruel or unusual” include: Ala.
Const. art. I, § 15; Ark. Const. art. II, § 9; Cal. Const. art. I,
§ 17; Haw. Const. art. I, § 12; Kan. Bill of Rights § 9; Md.
Declaration of Rights art. XXV; Mass. Const. art. XXVI; Mich. Const. art. I,
§ 16; Minn. Const. art. 1 § 27; N.D. Const. art. I, § 11; Okla.
Const. art. II, § 9; Tex. Const. art. I, § 13; Wyo. Const. Tit.
97-1-014.
[143]. See, e.g.,
Michigan v. Bullock, 485 N.W.2d 866, 872–73 (Mich. 1992); California v.
Castillo, 284 Cal.Rptr. 382, 399 (Cal. 1991).
[144]. See Michigan, 485
N.W.2d at 872–73.
[145]. Universal
Declaration, supra note 104, art.
5 (emphasis added).
[146]. Torture
Convention, supra note 17, art.
16(1) (emphasis added).
[147]. American
Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, art. 26,
International Conference of American States, 9th Conference, OAS Doc. OEA/Ser.
L/V/I. 4 Rev. XX (1948), reprinted in Organization of American States,
Basic Documents Pertaining to Human Rights in the Inter-American System, at 17,
OAS Doc. OEA/Ser.L. V/II. 71, doc.6 rev.1 (1988) [hereinafter American
Declaration].
[148]. American
Convention, supra note 17, art 5.
Under Article 27(2), there is no authorization to suspend Article 5.
[149]. African [Banjul] Charter on Human and
People’s Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3
rev.5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986, art. 5
[hereinafter Banjul Charter].
[150].
European Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 3, Nov. 5, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 221 (entered
into force Sept. 3, 1953) [hereinafter European Convention]. Under Article
15(2), there can be no derogation of Article 3.
[151]. ICCPR, supra note
16, art. 7.
[152]. Body of Principles for the Protection
of All Persons Under Any Form of Detention or Imprisonment G.A. Res. 43/173,
U.N. GAOR 43rd Sess., Supp. No. 49, Annex, at 298, Principle 6, U.N. Doc.
A/43/49 (1988) [hereinafter Body of Principles]. Principle 6 also provides:
“No circumstance whatever may be invoked as a justification for
torture or other cruel, inhuman or degrading treatment or punishment.”
Id.
[153]. Declaration on the
Elimination of Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess.,
Annex, Supp. No. 49, at 217, art. 3, U.N. Doc. A/48/49 (1993).
[154]. Children’s Convention,
supra note 113, art. 37(a).
[155]. There is only one reported case of
the Inter-American Court of Human Rights regarding the rights of a female
prisoner. Under the American Convention of Human Rights, the prisoner was
alleged to have been killed by a guard in Costa Rica. The Court dismissed the
petition after two years for failure to exhaust domestic remedies, not reaching
the Article V cruel treatment issue. See In the Matter of Vivian
Gallardo et al. No.G 101/81, 8 Sept. 1983, with dissent of Judge Rodolfo
E. Piza. Notably, Costa Rica waived the exhaustion requirement. Though the
United States is a member of the Organization of American States, it has not
acceded to the jurisdiction of the Inter-American Court of Human Rights.
[156]. See European Convention,
supra note 150, art. 3.
[157]. Ireland v. United Kingdom, 2
Eur.Ct.H.R (ser. A) at 25 (1978).
[158]. Id. at para. 96. The court described these
techniques in detail:
(a) wall-standing: forcing the detainees to remain for periods of some hours in a ‘stress position,’ described by those who underwent it as being ‘spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers’; (b) hooding: putting a black or navy colored bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the center and pending interrogations.
Id. at para. 96.
[159]. European
Convention, supra note 150, art.
3.
[160]. Id. at para. 246.
[161]. The Canadian Constitution’s
pertinent language is similar to the U.S. Constitution and defines its
“cruel and unusual punishment” provision test as “whether the
treatment is so excessive as to outrage standards of decency.” Carlson v.
Her Majesty The Queen [1998] F.C.R. T-1982-96, para. 30 (Can.). The South
African and Brazilian Constitutions use “or” in analogous provisions.
See S. Afr. Const. ch.2, § 12(1)(e); Strydom v. Minister of
Correctional Services and Others, 1999 (3) BCLR 342 (W), Braz.
Constituição Federal [C.F.] tit. II, ch. I. India, the
world’s largest democracy, does not have an analogous constitutional
provision contained in its “Fundamental Rights” provisions.
The domestic courts in the U.K. have adopted Article 3 of the European
Convention. See McKernan v. Governor of H.M. Prison Belfast, 1983 N1 83
(Q.B. 1982).
[162]. Julie Lantrip,
Torture and Cruel, Inhumane and Degrading Treatment in the Jurisprudence of
the Inter-American Court of Human Rights, 5 ILSA J. Int’l.
& Comp. L. 551 (1999).
[163].
Amnesty International, Torture in the Eighties: An Amnesty International Report
(1991).
[164]. Clovis C. Morrisson,
Dynamics of Development in the European Human Rights Convention System 72
(1981).
[165]. Some scholars have argued that this standard renders
the Eighth Amendment purposeless. See Mann, supra note
113. Justice Scalia has also argued that
the courts are not proper forums to resolve the harshness of criminal
sanctions, holding that the issue should be left to the legislatures. This
position would result in no punishment authorized by statutes being subject to
review. See generally Peter Mahis Spett, Note, Confounding the
Graduation of Iniquity: An Analysis of Eighth Amendment Jurisprudence
Set Forth in Harmelin v. Michigan, 24 Colum. Hum. Rts. L. Rev. 203
(1992–1993).
[166]. “It has
recently been policy to refuse to ratify any international treaty that is
inconsistent with domestic standards, even where they fall below international
standards.” Henkin, supra note 18, at 342.
[167]. See Harmelin v. Michigan, 501
U.S. 957 (1991); Turner v. Safely, 482 U.S. 78 (1987). See also Human
Rights Watch, supra note 29, at
47; Sosa, supra note 136; Spett,
supra note 165.
[168]. 482 U.S. 78 (1987).
[169]. Id. at 87. The stated policy
behind this change was the Court’s recognition of the deference due by
courts to prison administrators.
[170].
Four factors are suggested in this analysis: (1) there must be a rational
connection between the regulation and the legitimate government interest it
promotes; (2) whether other alternative means of exercising the right are
available to the prisoner; (3) the impact upon other inmates and prison
resources of accommodating the constitutional rights; and (4) the absence of
alternative means for accommodating the prisoner’s rights. See id.
at 89–90.
[171]. See
discussion of claims raised in Nunn v. Michigan, supra note
51.
[172]. 429 U.S. 97, 104 (1976); see
also Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir. 1993) (declining to
apply Turner to Eighth Amendment claim, dictum); Austin v. Hopper, 15 F.
Supp. 2d 1210 (D. Ala. 1998) (rejecting Turner’s reasonableness
standard and adopting both the “deliberate indifference” test for
non-emergencies and a heightened standard of “obduracy and wantonness in
emergencies”); Show v. Patterson, 955 F. Supp. 182, 192 (S.D.N.Y. 1997)
(applying a two-part analysis of the seriousness of the injury and
defendant’s state of mind, rather than the Turner analysis).
[173]. For an overview of post-Turner
cases, see generally Jones-Bey v. Wright, 944 F. Supp. 723 (N.D. Ind. 1996)
(applying a two-prong objective/subjective test to determine if prisoner’s
placement on “medical separation status” for refusal to submit to a
tuberculosis test violated the Eighth Amendment); Buckley v. Gomez, 36
F.Supp.2d 1216 (S.D.Cal. 1997) (applying Estelle test to prisoner’s
Eighth Amendment claim arising from lack of medical care); McCormick v.
Stalder, 105 F.3d 1059 (5th Cir. 1997) (applying “deliberate
indifference” test in analyzing whether the medical treatment of
tuberculosis without informing inmate of risk violates prisoner’s Eighth
Amendment rights); Jolly v. Coughlin, 894 F. Supp. 734 (S.D.N.Y. 1995);
Hasenmeier-McCarthy v. Rose, 986 F. Supp. 464 (S.D. Ohio 1998); Harris v.
Thigpen, 941 F.2d 1495 (11th Cir. 1991).
[174]. See McPherson v. Coombe, 29 F. Supp. 2d 141
(W.D.N.Y. 1998) (failing to apply Turner analysis to Eighth Amendment
violation claim); Johnson v. William, 768 F. Supp. 1161 (E.D. Va. 1991)
(stating that cold meals, denial of orthopedic shoes, and restrictions on
exercise and recreation do not offend contemporary notions of decency and
remarking that even if the regulations infringed on a prisoner’s
constitutional rights, under Turner, regulations are valid if reasonably
related to a legitimate penological interest).
[175]. See generally Mendoza v.
Blodgett, No. C-89-770-JMH, 1990 WL 263527 (E.D. Wash. 1990) (using a
Turner evaluation first, then performing a three-part Eighth Amendment
analysis in case where prisoner was placed in a dry cell to be watched to
ascertain whether he ingested narcotics in a balloon. The court considered
three factors: (1) wanton and unnecessary infliction of pain; (2) punishment
which is disproportionate to the crime; (3) conditions which alone or combined
deprive an inmate of minimal civilized measure of life’s necessities);
Navin v. Iowa Dept. of Corrections, 843 F. Supp. 500 (N.D. Iowa 1994);
Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1987) (applying the
Turner and Eighth Amendment analyses in considering a claim involving
guards’ use of taser guns during routine strip search was cruel and
unusual); Monmouth County Correctional Institutional Inmates v. Lanzaro, 834
F.2d 326 (3d Cir. 1987) (applying first the Turner analysis and the
“deliberate indifference test” in analyzing claim that prison
policies unconstitutionally infringed upon women inmates’ rights to elect
to terminate their pregnancies); Terrovona v. Brown, 783 F. Supp. 1281 (W.D.
Wash. 1991) (applying Turner to validate rectal probe policy in prison
to prevent concealment of contraband but noted that “reasonableness”
of policy could still be violative of the Eighth Amendment if wanton infliction
of pain was present).
[176]. See
generally Talib v. Gilley, 138 F.3d 211 (1998) (applying Eighth Amendment
analysis to food deprivation claim then applying Turner analysis;
finding no Eighth Amendment violation for Turner analysis to counter);
Hershberger v. Scaletta, 861 F. Supp. 1470 (N.D. Iowa 1993) (applying
Turner analysis, after mentioning the standard of “obduracy and
wantonness,” to challenge of exercise regulations requiring inmates to
keep moving forward during exercise time or risk losing exercise privileges);
Johnson v. William, 768 F. Supp. 1161 (E.D. Va. 1991) (stating that cold meals,
denial of request for orthopedic shoes, and restrictions on exercise and
recreation do not offend contemporary notions of decency (citing Rhodes v.
Chapman, 452 U.S 337 (1981) and remarking that even if the regulations did
infringe on a prisoner’s constitutional rights under the Turner
analysis, regulations are valid if reasonably related to a legitimate
penological interest).
[177]. See
generally Jennifer A. Puplava, Note, Peanut Butter and Politics: An
Evaluation of the Separation-of-Powers: Issues in Section 802 of the Prison
Litigation Reform Act, 73 Ind. L.J. 329 (1997); Deborah Decker, Comment, Consent Decrees and the Prison Litigation
Reform Act of 1995: Usurping Judicial Power or Quelling Judicial
Micro-Management?, 1997 Wis. L. Rev. 1275 (1997).
[178]. See Prison Litigation Reform
Act of 1995, Title VIII of the Omnibus Budget Reconciliation Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996). See also Decker, supra note
177, at 1276–81.
[179]. See Prison Litigation Reform
Act of 1995, § 803, Title VIII of the Omnibus Budget Reconciliation Act,
Pub. L. No. 104-134, 110 Stat. 1321 (1996); 42 U.S.C. § 1988 (1994).
See also Martin v. Hadix, 119 S. Ct. 1998, 2001 (1999) (upholding the
fee limitation provision and giving it retroactive effect to pending
cases).
[180]. See Prison
Litigation Reform Act of 1995, § 802, Title VIII of the Omnibus Budget
Reconciliation Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996). See also
Decker, supra note 177, at
1276–81.
[181]. See
Decker, supra note 177, at
1276–81. A consent decree is used in prison condition cases, in which
a prisoner agrees to discontinue pending litigation in exchange for
defendant’s agreeing to correct allegedly unconstitutional conditions, but
without any admission of wrongdoing by prison officials. See id. at
1276.
[182]. See Human Rights
Watch, supra note 29, at 37.
[183]. For a more in-depth discussion on the
PLRA’s effect on consent decrees see Puplava, supra note
177 and Decker, supra note
177. Under the PLRA, all remedial court
orders enjoining unlawful prison practices or conditions are arbitrarily
terminated after two years regardless of the degree of compliance. This
automatic termination severely limits the likelihood for meaningful change in
prison practices and conditions that violate constitutional standards, as two
years is rarely enough time to implement significant institutional problems.
See, e.g., Glover v. Johnson, 934 F.2d 703, 715 (6th Cir. 1991)
(noting the recalcitrance of the defendant State of Michigan).
[184]. Prison Litigation Reform Act of 1995,
§ 803(d), Title VIII of the Omnibus Budget Reconciliation Act, Pub. L. No.
104-134, 110 Stat. 1321 (1996). For an excellent analysis of this provision,
see Stacey Heather O’Bryan, Note, Closing the Courthouse Door: The
Impact of the Prison Litigation Reform Act’s Physical Injury Requirement
on the Constitutional Rights of Prisoners, 83 Va. L. Rev. 1189
(1997).
[185]. Many constitutional
rights claims by prisoners involve injuries that are not physical in nature.
See, e.g., Turner v. Safely, 482 U.S. 78 (1987) (concerning the
First Amendment rights to marry and receive mail); Block v. Rutherford, 468
U.S. 576 9(1984) (challenging denial of all contact visits and searches of
cells as violations of Fourteenth Amendment); Hudson v. Palmer, 468 U.S. 517
(1984) (involving Fourteenth Amendment claims of intentional, unauthorized
deprivation of property).
[186].
Disturbing reports of sexual abuse of female prisoners by male prison officials confirmed the need for judicial oversight to prevent physical abuse of prisoners. In fact, one speaker stressed the need for Congress to exercise particular caution when removing protections for juvenile and female prisoners, reminding Congress that only recently . . . ‘correctional officers and other prison employees repeatedly coerced female prisoners in the Georgia Women’s Correctional Institution and other facilities to have sexual relations . . . . [A] religious leader employed by the Department of Corrections to provide religious services engaged in sexual activities with at least three women prisoners over a three-month period. A night shift supervisor had sexual relations with at least seven prisoners over a five-year period. An officer who supervised a first-time prisoner regularly demanded that she perform sexual acts. Women prisoners filed more than 230 affidavits detailing sexual relations with prison employees. The prison employees told the women that they would not be believed—or that they would suffer harm—if they reported the abuse. When the women pursued the matter, many were not believed, others suffered intimidation by prison employees they implicated . . . . Many allegations that were reported were simply never investigated.’
O’Bryan, supra note 184, at 1195–96 (quoting Prison Litigation Reform Act: Hearings Before the Senate Judiciary Comm. (1996) (statement of Mark I. Soler, President, Youth Law Center)).
[187]. See
Davis v. District of Columbia, 158 F.3d. 1342 (D.D.C. 1998) (finding that
PLRA’s preclusion of a constitutional privacy claim alleging only
psychological injury does not deny inmates access to court or equal
protection).
[188]. See,
e.g., Ireland v. United Kingdom, 2 Eur.Ct.H.R (ser. A) at 25 (1978)
(encompassing “mental effects” such as severe humiliation); United
Nations Human Rights Commission, The Greek Case, Report of Nov. 5, 1969 (1969)
12 Yearbook 186–510 (finding mental or physical mistreatment
“degrading if it grossly humiliates [someone] before others”); see
also Francis G. Jacobs & Robin White, European Convention on Human
Rights 49–68 (2d ed. 1996); Lantrip, supra note
162, at 555
(analyzing the proof requirements of Article 5 protections under the American
Convention and stating that violations include treatment that “is cruel,
inhuman or degrading to the physical, mental or moral integrity of the
person.”) (emphasis added); Velaquez Rodriguez v. Honduras, Judgment of
July 29, 1988, Inter-Am. Ct. H.R. (Ser. C) No.4 paras. 156, 187 (1988) (finding
that isolation alone violates this protection). See also Report of
Special Rapporteur, Mr. Nigel S. Rodley: Question of the Human Rights of All
Persons Subjected to Any Form of Detention or Imprisonment, in Particular:
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
U.N. ESCOR Comm’n on Hum. Rts., 52nd Sess., Item 8(a) of the
Provisional Agenda, U.N. Doc. E/CN.4/1996/35 (1996).
[189]. The U.N. Human Rights Commission has
consistently found mental suffering alone to violate Article VII of the ICCPR.
See Annual Report of the Committee to the General Assembly,
(1981–1982) II Y.B. Hum. Rts. Comm., 383, U.N. Doc. CCPR/3/Add.1 (1989);
Williams, Treatment of Detainees: Examination of Issues Relevant to Detention
by the United Nations Human Rights Committee 28–29, 35 (1990); Dominic
McGoldrick, The Human Rights Committee: Its Role in the Development of the
International Covenant on Civil and Political Rights 369, 389 n.99 (1991);
Nigel S. Rodley, The Treatment of Prisoners Under International Law, Annexes
1–8e (1987). See also, Soering v. United Kingdom, 161 Eur. Ct. H.R.
(ser. A) (1988) reprinted in 11 Eur. H.R. Rep. 439 (1989) (finding that
Article 3 prohibition against “cruel, inhuman or degrading treatment”
would be violated by an extradition to the United States in which the prisoner
would be exposed to the psychological suffering known as the “death row
phenomenon”); Richard B. Lillich, The Soering Case, 85 Am.
J. Int’l L. 128 (1991).
[190].
In conclusion, the international community, in the spirit of a changing, more sophisticated understanding of the importance of mental well-being to human dignity, has recently extended the protection against “cruel, inhuman or degrading treatment or punishment” to include, not only physical conditions, but also the mental effects of certain prison practices. Because of this application, the use of solitary confinement as used in the United States would clearly violate the evolving international standards. Unfortunately though, even with clear clinical documentation of the severely detrimental psychological syndrome caused by solitary confinement, the United States has failed to find a general violation of the Eighth Amendment to which its analysis of prisoners’ complaints is limited.
Nan B. Miller, Comment, International Protection of the Rights of Prisoners: Is Solitary Confinement in the United States a Violation of International Standards?, 26 Cal. W. Int’l L.J. 139, 170 (1995) (emphasis added).
[191]. Rochin v.
California, 342 U.S. 165 (1952).
[192].
877 F.Supp. 634 (D.D.C. 19would no longer occur. In sharp
contrast, the safety of women prisoners is entrusted to prison officials, some
of whom harass women prisoners and many of whom tolerate harassment.
Furthermore, women are tightly confined, making escape from harassment as
unlikely as escape from jail itself.
O’Bryan, supra note 184, at 1211–12.
[194]. One court
has questioned whether systematic sexual harassment of female prisoners is a
“condition of confinement” within the meaning of the PLRA. See
Peddle v. Sawyer, 64 F.Supp. 2d 12 (D.Conn. 1999).
[195]. See decisions, supra
notes 107–108, including Fisher v. Goord, 981
F.Supp. 140 (W.D.N.Y. 1997); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir.
1995) (holding that absent physical contact, there is no clearly established
right to be free of sexual harassment in a prison setting); Zehner v. Trigg,
133 F.3d 459, 461 (7th Cir. 1997) (finding that PLRA applies to the Eighth
Amendment and “does not permit recovery for custodial or emotional damages
‘without a showing of physical injury.’”); Baez v. Gosline, No.
96-CV-1889 (N.D.N.Y.Mar. 5,1999).
[196].
David Weissbrodt, An Introduction to the Sources of International Human
Rights Law, C339 ALI-ABA 1 (1989).
[197]. The Paquete Habana, 175 U.S. 677, 700 (1900) (Gray,
J.). This was not a new concept in U.S. law even then. See The Nereide,
13 U.S. (9 Cranch) 388, 423 (1815), in which Chief Justice Marshall referred to
the “law of nations;” see also U.S. Const. art.1, §8, cl.
10. The Alien Tort Claims Act, 28 U.S.C. § 1350 (1994), is the most
commonly used basis for statutory international human rights claims for torts
committed in other countries (derived from the Judiciary Act of 1789, ch. 20,
§ 9(b), 1 Stat. 73, 77). See generally Louis Henkin,
International Law as Law in the United States, 82 Mich. L. Rev. 1555
(1984).
[198]. This topic is beyond the
scope of this Article. For an excellent debate on these issues, see
Symposium: Century: U.N. Human Rights Standards and U.S. Law, 66 Fordham L.
Rev. 1 (1997).
[199]. See
Restatement (Third) of the Foreign Relations Law of the United States (1987);
see also Theodor Meron, Human Rights and Humanitarian Norms As
Customary Law (1989).
[200]. Restatement
(Third) of the Foreign Relations Law of the United States §
702.
[201]. Id. § 702 cmt. a
(“Human rights not listed in this section may have achieved the status of
customary law, and some rights may achieve that status in the future.”).
[202]. United States v. Smith, 18 U.S.
(5 Wheat,) 153, 160–61 (1820); see also The Paquete
Habana, 175 U.S. at 700. See generally Restatement (Third) of
the Foreign Relations Law of the United States § 102 (2), 103 (2).
International customary law “results from a general and consistent
practice of states followed by them from a sense of legal obligation.”
Statute of the International Court of Justice, art. 38(1)(d).
[203]. See Filartiga v. Pena-Irala,
630 F.2d 876, 885–86 (2d Cir. 1980) (noting 1 Blackstone, Commentaries
263–64).
[204]. See
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793).
[205]. See id. at 474. See
also Ware v. Hylton, U.S. (3 Dall.) 199, 281 (1796) (“when the United
States declared their independence they were bound to receive the law of
nations.”); Filartiga, 530 F.2d at 877 (“upon ratification of
the Constitution, the thirteen former colonies were fused into a single nation,
one which, in its relations with foreign states, is bound both to observe and
construe the accepted norms of international law.”).
[206]. See Filartiga at
877–78.
[207]. International Law,
EC Cases and Materials 164 (Louis Henkin et al. eds., 3d ed. 1993). See also
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964).
[208]. See First National City Bank
v. Banco Para de Comercio de Cuba, 462 U.S. 611, 623 (1983) (comenting that
federal common law is necessarily informed by international customary law);
see also Ill. v. City of Milwaukee, Wis., 406 U.S. 91, 99–100
(1972) (“A case properly ‘arises under the ‘Laws of the United
States’’ for Article III purposes if grounded upon statutes enacted
by Congress or upon the common law of the United States.”); Ivy Broad.
Co., Inc. v. AT&T Co., 391 F.2d 486, 492 (2d Cir. 1968).
[209]. See, e.g., Thompson v.
Oklahoma, 487 U.S. 815 (1988); Stanford v. Kentucky, 492 U.S. 361 (1989).
[210]. See ICCPR, supra note
16. See also Restatement (Third)
of the Foreign Relations Law of the United states § 111(3) (1987); Human
Rights Watch, supra note 29, at
47 n.121. The Senate attached three reservations, five understandings and two
declarations to the Torture Convention, and five reservations, five
understandings, and four declarations to the ICCPR. See Torture
Convention, supra note 17, art.
22; Optional Protocol to the International Covenant on Civil and Political
Rights, Dec. 16, 1966, 99 U.N.T.S. 302.
[211]. The United States, as other states, has a
responsibility under international law to implement their treaty obligations
domestically. See Koh, supra note
25; Louis Henkin, How Nations Behave (2d
ed. 1979).
[212]. See 136 Cong.
Rec. S17486 (daily ed. Oct. 27, 1990) (Senate Reservation I(2) to the U.S.
ratification of the Torture Convention); 138 Cong. Rec. S4781-01 (daily ed.
Apr. 2, 1992) (U.S. Reservation I(3) to the ICCPR states, “[t]hat the
United States considers itself bound by Article 7 to the extent that
‘cruel, inhuman or degrading treatment or punishment’ means the cruel
and unusual treatment or punishment prohibited by the Fifth, Eighth and/or
Fourteenth Amendments to the Constitution of the United States.”).
[213]. See General Comment (No. 24)
on issues relating to reservations made upon ratification or accession to the
[ICCPR] or the Optional Protocols thereto, or in relation to declarations under
Article 41 of the Covenant, U.N. GAOR Hum. Rts. Comm., 52d Sess., 1382d mtg.,
para. 19, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994) (“States should not enter
so many reservations that they are in effect accepting a limited number of
human rights obligations, and not the Covenant as such.”).
[214]. See generally Dinah Shelton,
Issues Raised by the United States Reservations, Understandings, and
Declarations, in U.S. Ratification of the International Covenants on
Human Rights 269 (Hurst Hannum & Dana D. Fischer eds., 1993);
Henkin, supra note 197; Lori
Fisler Damrosch, The Role of the United States Senate Concerning “Self-
Executing” and “Non-Self-Executing” Treaties, 67 Chi.-Kent
L. Rev. 515 (1991); John Quigley, The International Covenant on Civil and
Political Rights and the Supremacy Clause, 42 DePaul L. Rev. 1287
(1993); Michael J. Glennon, The Constitutional Power of the United States
Senate to Condition Its Consent to Treaties, 67 Chi.-Kent L. Rev.
533 (1991); Yuji Iwasawa, The Doctrine of Self-Executing Treaties in
the United States: A Critical Analysis, 26 Va. J. Int’l L. 627
(1986); Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Int’l
L. 760 (1988); Jordan J. Paust, International Law as Law of the United States
51–79 (1997); Stefan A. Riesenfeld & Frederick M. Abbott, The Scope
of U.S. Senate Control Over the Conclusion and Operation of Treaties, 67
Chi.-Kent L. Rev. 571 (1991); Carlos Manuel Vazquez, The Four Doctrines of
Self-Executing Treaties, 89 Am. J. Int’l L. 695 (1995).
[215]. See Alien Tort Claims Act, 28
U.S.C. § 1350 (1994). Courts will also look to declarations of
international bodies such as the United Nations and the Organization of
American States (OAS) to determine international customary law. See
generally Harold Koh, Why Do Nations Obey International Law?, 106
Yale L.J. 2599 (1997); Richard B. Lillich, International Human Rights Law in
U.S. Courts, 2 J. Transnat’l L. & Pol’y 1 (1993); Nadine
Strossen, Recent U.S. and International Judicial Protection of Individual
Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41
Hastings L.J. 805 (1990); Bruno Simma & Philip Alston, The Sources of
Human Rights Law: Custom, Jus Cogens, and General Principles, 12 Australian
Int’l Y.B. 82 (1992).
[216]. U.S.
Const. art. VI, § 2 (“All Treaties made, or which shall be made under
the authority of the United States, shall be the Supreme Law of the Land; and
the judges in every state shall be bound thereby, any Thing in the Constitution
or Laws of any state to the Contrary notwithstanding.”)
[217]. See The Paquete Habana, 175
U.S. 677, 700 (1900). The doctrine first appeared in Foster v. Neilson, 27 U.S.
(2 Pet.) 253, 254 (1829).
[218]. See
The Paquete Habana, 175 U.S. at 700.
[219]. In the over 160 years since the creation of the
doctrine, few U.S. courts have found a human rights treaty to be
“self-executing.” See generally Bert Lockwood, The United
Nations Charter and United States Civil Rights Litigation, 69 Iowa L. Rev.
901 (1984); Richard Lillich, International Human Rights Instruments (1983).
[220]. A constitutional amendment was
proposed by U.S. Senator Bricker in the early 1950s to make all treaties
“non-self-executing.” The amendment was considered a response to the
growing domestic Civil Rights movement to end racial discrimination and a fear
that international treaties might create a legal basis to support such efforts.
See Henkin, supra note 18, at 348 (quoting Senator Bricker’s
declaration: “My purpose in offering this resolution is to bury the
so-called Covenant on Human Rights so deep that no one holding office will ever
dare to attempt its resurrection.”). Even though his constitutional
amendment failed, the International Covenant on Civil and Political Rights was
not ratified by the Senate for over forty years and, ironically, with a
“declaration” that the convention was “non-self-executing.”
Id.
[221]. See
international law 35–68 (Louis Henkin et al. eds., 2d ed. 1987);
Restatement (third) of the Foreign Relations Law of the United States (1987)
§§ 102–103 (1987).
[222].
Louis Henkin, International Law: Politics, Values and Functions: General
Course in Public International Law, 216 Recueil des cours 61–62
(1989-IV).
[223]. See,
e.g., Nicole Hahn Rafter, Even in Prison, Women are Second Class
Citizens: Through a Series of Lawsuits, Women Inmates are Forcing U.S. to
Confront Basic Inequalities in the American Justice System, 14 SPG
Human Rights 28 at 30; Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).
Recommendations to remedy the abuse described in Michigan prisons have
included:
I. Protecting Privacy: The Need for a Policy
A. MDOC should institute a policy to protect the privacy of women prisoners consistent with several federal court decisions recognizing that prisoners have a constitutionally protected right to privacy. Corrections employees should be fully trained in this policy, and it should be enforced strictly. Such a policy should include, among other things:
B. A requirement that male officers announce their presence before entering a women’s housing unit, toilet, or shower area;
C. Permission for prisoners to cover their cell windows for limited intervals while undressing or using the toilets in their cells; and
D. A rule that only female officers should be present during gynecological examinations.
E. MDOC should cease “unclothed body searches” of women prisoners either by or in the presence of male employees, or under circumstances where a male employee may be in a position to observe the prisoner while she is undressed. Strip searches should be administered in a location that limits access by other prisoners or employees.
F. MDOC should use female officers to pat-search female prisoners whenever possible. All officers should be trained in the appropriate conduct of pat-frisks and in the disciplinary sanctions associated with improperly performed searches. Women prisoners who either pull away during offensive pat-searches or request that the search be conducted by a female officer should not be subjected automatically to disciplinary action.
Human Rights Watch, supra note 29, at 273–74.
[224]. United
Nations Standard Minimum Rules for Treatment of Prisoners, adopted Aug.
30, 1955, U.N. Doc A/CONF/6/1, annex I, A (1956) [hereinafter Standard Minimum
Rules].
[225]. See Daniel L.
Skoler, World Implementation of the United Nations Standard Minimum Rules
for Treatment of Prisoners, 10 J. Int’l L. & Econ. 453, 458
(1975).
[226]. See generally
Anthony D’Amato, The Concept of Human Rights in International
Law, 82 Colum. L. Rev. 1110 (1982); Louis Sohn, Generally
Accepted International Rules, 61 Wash. L. Rev. 1073 (1986); Oscar
Schachter, The Twilight Existence of Nonbinding International
Agreements, 71 Am. J. Int’l L. 296 (1977).
[227]. See Skoler, supra note
225, at 467.
[228]. See Fifth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, Working
Paper Prepared by the Secretariat, Annex I, Agenda Item 4, at 120–21, U.N.
Doc. A/CONF.56/6 (1975).
[229].
See Human Rights Sourcebook 115 (Albert P. Blaustein et al. eds., 1987);
Committee on Crime Prevention and Control, Procedures for the Effective
Implementation of the Standard Minimum Rules for the Treatment of Prisoners,
E.S.C. Res. 1984/47, U.N. ESCOR, 76th Sess., Supp. No. 1, at 29, U.N. Doc.
E/1984/84 (1984). See generally Suzanne M. Bernard, An Eye for An
Eye: The Current Status of International Law on the Humane Treatment of
Prisoners, 25 Rutgers L.J. 759 (1994).
[230]. In 1990, the U.N. issued a declaration of ten
principles referencing and adopting various human rights conventions but
omitted any reference to the U.N. Minimum Rules. See United Nations High
Commissioner for Human Rights, Basic Principles for the Treatment of Prisoners,
. G.A. Res. 111, U.N. GAOR, 45th Sess., 68th mtg., Supp. No. 49A, at 199, U.N.
Doc. A/RES/45/49 (1990). There is no principle analogous to Rule 53.
[231]. For example, in India, the
world’s largest democracy of nearly one billion people, female prisoners
are supervised in housing units solely by female corrections officers. There
are, however, no formal laws requiring these policies, but the practice results
from cultural norms. Interview with Prof. K.D. Gaur, Lucknow University School
of Law, (Lucknow, India) in Baltimore, Maryland (Oct. 12, 1999). See
generally K.D. Gaur, Human Rights Detainees and Prisoners: Suggestions
for Prison Reform, Cochin Univ. L. Rev. 393 (1985).
[232]. Federal standards had provided:
It is widely recognized, first, that even convicted prisoners retain claims to personal dignity, and also that under the conditions of arrest and imprisonment the relation between the sexes poses particularly sensitive issues. These assumptions underlie most contemporary statements of the relevant standards for penal institutions. Thus the Federal Standards for Corrections published by the Department of Justice postulate that “(e)ach facility develops and implements policies and procedures governing searches and seizures to ensure that undue and unnecessary force, embarrassment or indignity to the individual is avoided.” Specifically, when body searches are required, staff personnel avoid unnecessary force and strive to preserve the dignity and integrity of the inmate. Issues of embarrassment and indignity arising from sexual differences traditionally have been stated with a view of the rights of female prisoners. Standards for jails published by the Department’s Bureau of Prisons stress, in connection with searches of newly admitted prisoners, that “(n)aturally, admission for women should be completely separate from that for men and should be conducted by female staff members.” They continue with the advice that “(t)he following conditions must be met if difficulties are to be avoided in jails housing both male and female prisoners.
1. Women prisoners must be completely separated from male prisoners, with no possibility of communication by sight or sound.
2. All supervision of female prisoners must be by female employees. In the larger jail a full-time matron should provide constant supervision. Smaller jails may have a part-time matron who retains the key to the women’s section and is on call as needed.
3. Male employees must be forbidden to enter the women’s section unless they are accompanied by a matron.
Sterling v. Cupp, 625 P.2d 123, 130 (1981) (citing United States Bureau of Prisons, The Jail: Its Operation and Management 19, 71–72).
[233]. See
Sterling, 625 P.2d at 128–30; Lareau v. Manson, 507 F. Supp.
1177, 1189 (D. Conn. 1980) (noting Connecticut’s adoption of the U.N.
Standard Minimum Rules for Treatment of Prisoners).
[234]. 433 U.S. 321 (1977) (Alabama’s
height and weight policies which discriminated against women corrections
officers are bona fide occupational qualifications for placement in prisons
with a high percentage of male sex offenders).
[235]. See generally, Karoline
Jackson, The Legitimacy of Cross-Gender Searches and Surveillance in
Prisons: Defining an Appropriate and Uniform Review, 73 Ind. L.J. 959
(1998); Lisa Krim, Reasonable Woman’s Version of Cruel and Unusual
Punishment: Cross-Gender, Clothed-Body Searches of Women Prisoners, 6 UCLA
Women’s L.J. 85 (1999).
[236].
See Griffin v. Michigan Dept. of Corrections, 654 F. Supp. 690 (E.D.
Mich. 1982). The court referred to a growing practice in federal and state
corrections systems permitting female guards in male prisoner housing units.
The State of Michigan did not appeal this decision.
[237]. See id.
[238]. See, e.g., Women
Prisoners of the District of Columbia Department of Corrections v. District of
Columbia, 877 F. Supp. 634 (D.D.C. 1994).
[239]. See, e.g., Forts v. Ward, 471 F. Supp. 1095
(S.D.N.Y. 1979); Torres v. Wisconsin Dept. of Health & Soc. Services, 857
F.2d 1523 (7th Cir. 1988).
[240]. See
generally Women Prisoners of the District of Columbia Department of
Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994) (limiting
remedies to better training and administrative remedies for complaints even
though abuse was found). See also U.S. General Accounting Office, Women
in Prison: Sexual Misconduct by Correctional Staff (1999) (describing the
federal system and Texas, California and the District of Columbia and
recommending better training, complaint providing and monitoring and
reporting).
[241]. See Human
Rights Watch, supra note 29, pp.
127–63.
[242]. See Cross
Gender Monitoring Project, Correctional Services of Canada, Second
Annual Report 1999, available at the Correctional Service of Canada
Web site (visited Feb. 22, 2000) <http://www.csc-scc.gc.ca/text/prgrm/fsw/gender2/cg_e-01.shtml>.
[243]. See id. (reporting
on King v. Canada Correctional Service, an unreported decision of the
Canadian Public Service Commission Appeal Board (July 5, 1989)).
[244]. See Weatherall v. Canada
(Attorney General) [1993] 2 S.C.R. 872 (Can.).
[245]. See generally O’Bryan,
supra note 184, at 1204–11
(discussing the potential loss of any privacy based claims under the new PLRA);
Mary Ann Farkas and Kathyrn R. L. Rand, Female Correctional Officers and
Prisoner Privacy, 80 Marq. L. Rev. 995, 1029 (1997) (concluding that
“Court decisions regarding prisoner privacy and cross-gender searches are
all over the board, making it difficult for prison management to accurately
take into account any potential liability and act accordingly.”); see
also Gary H. Loeb, Protecting the Right to Informational Privacy for
HIV-Positive Prisoners, 27 Colum. J.L. & Soc. Probs. 269,
272–73 (1994) (discussing the impact of Turner on the disclosure of
HIV status in prisons.); Michenfelder v. Sumner, 860 F.2d, 328, 331 (9th Cir.
1988) (finding that male prisoners had no privacy right to not be strip
searched by female guards under the rational relationship test put forth in
Turner); Somers v. Thurman, 109 F.3d 614, 617 (9th Cir. 1997); Griffin
v. Michigan Dep’t of Corrections, 654 F. Supp. 690, 701 (E.D. Mich. 1982)
(refusing to assume that it is more intrusive to be viewed naked by the
opposite sex than by one’s own gender). But see Sterling v. Cupp,
625 P.2d 123, 130 (finding that women prisoners have a qualified right to
privacy that protects them from opposite-sex “pat down” searches by
guards).
[246]. Universal Declaration,
supra note 104, art. 12.
[247]. American Declaration, supra
note 147, art. 5.
[248]. American Convention, supra
note 17, art. 11.
[249]. European Convention, supra
note 150, art. 8(1).
[250]. ICCPR, supra note
16, art. 17; see also
Children’s Convention, supra note
113, art. 16.
[251]. See, e.g., American
Convention, supra note 17, art. 27;
European Convention, supra note 150, art. 15.
[252]. See Universal Declaration,
supra note 104.
[253]. See Vienna Declaration and
Programme of Action, adopted June 25, 1993, 32 I.L.M. 1661 (1993)
U.N. Doc. A/CONF.157/24.
[254].
See Geneva Convention for the Amelioration of the Conditions of the
Wounded and Sick in Armed Forces in the Field, opened for signature Aug.
12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85;
Geneva Convention Relative to the Treatment of Prisoners of War, opened for
signature Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 135.
[255]. See Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, opened for signature
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
[256]. See Torture Convention,
supra note 17.
[257]. See American Declaration,
supra note 147.
[258]. See American Convention,
supra note 17.
[259]. See Banjul Charter,
supra note 149.
[260]. See European Convention,
supra note 150.
[261]. See ICCPR, supra note
16.
[262]. See Body of Principles, supra note
152.
[263]. See Standard Minimum Rules, supra note
224. amended May 13, 1977, E.S.C.
Res. 2076, 62 U.N. ESCOR Supp. No. 1, at 35, U.N. Doc. E/5988 (1977) (adding
Article 95).
[264]. See Protocol
Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), opened
for signature Dec. 12, 1977, U.N. Doc. A/32/144, Annex I, 16 I.L.M. 1391
(1977).
[265]. See Protocol
Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol II), opened
for signature Dec. 12, 1977, U.N. Doc. A/32/144, Annex II, 16 I.L.M. 1442
(1977).
[266]. See Convention on
the Elimination of All Forms of Discrimination Against Women, G.A. Res. 180,
U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/180 (1980) (entered
into force Sept. 3, 1981).
[267]. See
Declaration on the Elimination of Violence Against Women, supra note
153.
[268]. See Children’s Convention, supra
note 113.
[269]. See Appendix.
[270]. For a general discussion of domestic
law and remedies related to this problem, see Ashley Day, Comment, Cruel and
Unusual Punishment of Female Inmates: The Need for Redress Under 42 U.S.C. Sec.
1983, 38 Santa Clara L. Rev. 555 (1998).
[271]. See generally Theodor
Meron, Rape As a Crime Under International Humanitarian Law, 87 Am. J.
Int’l L. 424 (1992); Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1996); Women
Prisoners of the District of Columbia Dept. of Corrections v. District of
Columbia, 877 F. Supp. 634 (D.D.C. 1994); U.N. ESCOR Comm’n on Hum. Rts.
48th Sess., para. 35, U.N. Doc. E/CN.4/1992/SR.21 para. 35 (finding rape a form
of torture and a “particularly ignominious violation of the inherent
dignity and the right to physical integrity of the human being”); Doe v.
Islamic Salvation Front, 993 F. Supp. 3 (D.D.C. 1998); Jama v. INS,
22 F. 2d 353 (D. N. J. 1998); Mining Community of Caracoles v.
Bolivia, Case 7481, Inter-Am. C.H.R. 36, OEA/ser.L/V/II.57, doc. 6,rev.1
(1982); Ita Ford, et al., v. El Salvador, Case 7575, Inter-Am. C.H.R.
53, OEA/ser.L/V/II.61, doc.22, rev.1 (1983) (finding rape a violation of the
Torture Convention); Report on the Situation of Human Rights in Haiti,
OEA/Ser.L/V/II.88, Doc.10 rev.9 (1995) (classifying rape as a violation of
Article 5(2) of the American Convention); Fernando Mejia Egocheaga See, e.g., Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).
[273]. Male prisoners have also litigated
the issue of their privacy rights with respect to female guards. See
Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987); Calhoun v. Detella,
1997 WL 75658 (N.D. Ill. 1997); Gunther v. Iowa State Men’s Reformatory,
612 F.2d 1079 (8th Cir. 1980).
[274].
See Beth Stephens, The Civil Lawsuit As a Remedy for International
Human Rights Violations Against Women, 5 Hastings Women’s L.J. 143,
157 (1993).
[275]. The Paquete Habana,
175 U.S. 677, 700 (1900); see also First National City Bank v. Banco
Para de Comercio de Cuba, 462 U.S. 611, 623 (1983) (noting the “frequently
reiterated” principle that federal common law is necessarily informed by
international customary law).
[276].
See Filartiga v. Pena-Irala ,630 F.2d 876, 885–86 (2d Cir. 1980)
(adding that “[d]uring the Eighteenth Century, it was taken for granted on
both sides of the Atlantic that the ‘law of nations’ forms part of
the common law” and quoting 1 Blackstone, Commentaries 263–64 (1st
ed. 1765–69)).
[277]. For an
excellent comparative review of the theories of incorporation of international
human rights law into the national jurisprudence of Italy, United Kingdom,
Germany, France, Chile, Argentina, Austria, Israel, Japan, Canada, and China,
see Enforcing International Human Rights in Domestic Courts (Benedetto Conforti
& Francesco Francioni eds., 1997).
South Africa’s new constitution
includes provisions which see to avoid the muddied waters of U.S.
jurisprudence. See, e.g., S. Afr. Const. ch. 14 § 231 (4)
(“Any international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-executing provision of an
agreement that has been approved by Parliament is law in the Republic unless it
is inconsistent with the Constitution or an Act of Parliament.”); S. Afr.
Const. ch. 14 § 232 (“Customary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act of
Parliament.”) S. Afr. Const. ch. 14 § 233 (“When interpreting
any legislation, every court must prefer any reasonable interpretation of the
legislation that is consistent with international law over any alternative
interpretation that is inconsistent with international law.”) For
critiques of judicial review of human rights claims under South Africa’s
interim constitution, see Penuell Maduna, Judicial Review and the
Protection of Human Rights Under a New Constitutional Order in South
Africa, 21 Colum. Hum. Rts. L. Rev. 73 (1989); Adrien Wing, The New
South African Constitution: An Example for Palestinian Consideration, 7
Pal. Y.B. Int’l L. 105 (1992–94); Ziyad Motala, Independence of
the Judiciary, Prospects and Limitations of Judicial Review in Terms of the
United States Model in a South African Order: Towards an Alternative Judicial
Structure, 55 Albany L. Rev. 367 (1991). After the end of apartheid, South
Africa was permitted to join the Organization of African Unity as its
fifty-third member in June, 1994, adopting the African [Banjul] Charter on
Human and People’s Rights.
See also Braz. Const. ch. I para. 2
(“The rights and guarantees expressed in this Constitution do not exclude
others deriving from the regime and from the principles adopted by it, or from
the international treaties in which the Federative Republic of Brazil is a
party.”). The author’s experience, in joint training projects
involving the U.S. and Brazilian judiciary, reflected a resistance by the
Brazilian federal judiciary to implement international human rights law
similarly seen with U.S. judges, despite this constitutional provision.
[278]. See Thompson v. Oklahoma, 487
U.S. 815, 869 n.4 (1988) (Scalia, J. dissenting) (“Where there is not
first a settled consensus among our own people, the views of other nations,
however enlightened the Justices of this Court may think them to be, cannot be
imposed upon Americans . . . .”)
[279]. For example, the Torture Victim Protection Act of
1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. §
1350 (1994)), permits citizens to sue only for acts of torture suffered in
another country by officials acting under “color of law” of a foreign
sovereign. Congress has not implemented the Torture Convention.
[280]. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163 (1803); Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388, 392 (1971).
[281]. See Monroe v. Pape, 365 U.S.
167 (1961) (emphasis added), the seminal modern case discussing § 1983.
Its jurisdictional counterpart is 28 U.S.C. § 1343(a)(3).
[282]. See Golden State Transit Corp.
v. City of Los Angeles, 493 U.S. 103, 106 (1989); Smith v. Robinson, 468 U.S.
992, 1005 n.5 (1984); Dennis v. Higgins, 498 U.S. 439 (1991); Felder v. Casey,
487 U.S. 1, 4 (1988). Where the right is not sufficiently protected by domestic
law, the need for recognition of international law is particularly compelling,
as there are insufficient non-judicial enforcement mechanisms created by
Congress or the within international community. See John P. Humphrey,
The International Bill of Rights: Scope and Implementation, 17 Wm. &
Mary L. Rev. 527, 540 (1976); see also Note, Judicial Enforcement of
International Law Against Federal and State Governments, 104 Harv. L. Rev.
1269, 1283 (1991).
[283]. See
Monell v. N.Y. City Dept. of Social Services, 436 U.S. 658, 700–01
(1978); Golden State, 493 U.S. at 106 (1989).
[284]. See Wright v. Roanoke
Redevelopment & Hous. Auth., 479 U.S. 418, 423–24 (1987); Smith
v. Robinson, 468 U.S. 992, 1012 (1984).
[285]. U.S. Const. art. VI § 2. See also
Restatement (Third) of the Foreign Relations Law of the United States (1987)
§ 111 (1), (3) & cmts. c, d.
[286]. See Foster v Neilson, 27 U.S. (2 Pet.) 253
(1829).
[287]. In conflicts between a
treaty and statute, the “last in time” trumps. See Whitney v.
Roberstson, 124 U.S. 190, 193–95 (1888). For a review of the
history and a critique of this doctrine, see Jules Lobel, The Limits
of Constitutional Power: Conflicts Between Foreign Policy and International
Law, 71 Va. L. Rev. 1071 (1985). Suffice to say, many seminal U.S. civil
rights statutes were passed in the nineteenth century and thus precede
international human rights treaties. See, e.g., Civil Rights Act
of 1866, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1981 (1994));
Civil Rights Act of 1871 (codified as amended at 42 U.S.C. § 1983 (1994))
and the 1874 Revision to the Civil Rights Act of 1871, Revised Stat. 1979,
which divided § 1 into a remedial section (codified as amended at 42
U.S.C. § 1983) and a jurisdictional section (codified as amended at 28
U.S.C. § 1343 (3)). Even if the date of the passage of the Civil Rights
Act of 1964, which recodified the Civil Rights Act of 1866 and 1871, was
considered to be the operative date, it would have little impact, as the
majority of the international human rights treaties were ratified after 1964.
See, e.g., Torture Convention, supra note
17; ICCPR, supra note
16.
[288]. Chapman v. Houston Welfare Rights Org., 441 U.S. 600,
611 (1979).
[289]. See id. at
611–12.
[290]. See, e.g.,
Lynch v. Household Finance Corp., 405 U.S. 538 (1972); United States
v. Price, 383 U.S. 787, 800–06 (1966).
[291]. See Maine v. Thiboutot, 448 U.S. 1, 4,
6–8 (1980). The words “and laws” were added in the 1874
revision. The legislative history of the early version of the statute is scant
and ambiguous, though the Court has also noted that “there is weight to
the claim that Congress, from 1874 onward, intended to create a broad right of
action in federal court for deprivations by a State of any federally secured
right.” Chapman, 441 U.S. at 611.
[292]. See Dennis v. Higgins,
498 U.S. 439, 444. Notably, the original version states that it is,
“[a]n Act to Enforce the Provisions of the Fourteenth Amendment to the
Constitution of the United States, and For Other Purposes.” Civil
Rights Act of 1866, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1981
(1994)) (emphasis added).
[293]. Though
the Alien Tort Claims Act has been the primary statutory basis for asserting
the international customary law of human rights in U.S. courts, the statute
includes a provision for claims based upon violations of “a treaty”
in addition to the often used “law of nations.” 28 U.S.C. §
1350. The treaty section has not been the source of review in any reported
cases.
[294]. See Chapman, 441
U.S. at 612–13 (emphasis added). The few lower courts addressing
this issue have not yet definitely found that an international treaty may be
the basis for rights asserted under § 1983. However, regarding
“self-executing” treaties asserted under § 1983, one court has
stated, “This suggests that, to the extent state officials deny justice to
an alien in violation of a self-executing treaty, federal courts could and
should permit suit under § 1983.” Air Transp. Ass’n of Am. v.
City of Los Angeles, 844 F. Supp. 550, 558 (C.D. Cal. 1994) (finding no implied
right of action under the Conventions on International Civil Aviation and
numerous Bilateral Air Service Agreements). See also Republic of
Paraguay v. Allen, 134 F.3d 662 (4th Cir. 1998); Jewish War Veterans of the
United States v. Am. Nazi Party, 260 F. Supp. 452, 453–54 (N.D. Ill.
1966); Faulder v. Johnson, 178 F.3d 741 (5th Cir. 1999). See also Ronan
Doherty, Foreign Affairs v. Federalism: How State Control of Criminal Law
Implicates Federal Responsibility Under International Law, 82 Va. L. Rev.
1281 (1996).
[295]. See Middlesex
County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 19
(1981); Dennis, 498 U.S. at 448.
[296]. Pennhurst State School and Hospital
v. Halderman, 451 U.S. 1, 19 (1981).
[297]. Wright v. Roanoke Redevelopment & Hous.
Auth., 479 U.S. 418, 431–32 (1987) “We have also asked the
question whether the provision was intended to benefit the putative
plaintiff.” Id. at 430.
[298]. Smith v. Robinson, 468 U.S. 992, at 1005 n.9, 1012
(1984).
[299]. See Torture
Convention, supra note 17.
[300]. See id. art. 16.
[301]. See Torture Convention,
Reservation I (1), supra note 212.
[302]. See id., Reservation II (5).
[303]. See id., Reservation III (1)
(“The United States declares that the Provisions of Articles 1 through 16
of the Convention are not self-executing.”). Again, the propriety of this
declaration has been openly criticized by scholars.
[304]. 448 U.S. 1, 9 (1980).
[305]. See id. A small retreat from
this position is seen in two cases in which the Court specified two situations
in which federal statutory rights are not enforceable under § 1983.
See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1
(1981) (holding that spending authorization constituted a congressional
declaration of policy providing no substantive rights enforceable under §
1983); Middlesex County Sewage Auth. V. Nat’l Sea Clammers Ass’n, 453
U.S. 1 (1981) (holding that no rights are enforceable under § 1983 where a
comprehensive set of specific remedies under the statute at issue indicated a
congressional intent that they were exclusive).
[306]. See Romero v. Kitsap County,
931 F.2d 624, 626 (9th Cir. 1991). But see Hoopa Tribe v. Nevins, 881
F.2d 657, 662–63 (9th Cir. 1989) (discussing treaty rights between the
U.S. government and Indian tribes and supporting treaty based claims under
§ 1983). See also Carlos Manuel Vazquez, Treaty-Based Rights and
Remedies of Individuals, 92 Colum. L. Rev. 1082, 1144–1153 (1992).
These cases are cited by Professor Vasquez as support for the proposition that
the courts have found “treaties” to be “laws” within the
meaning of § 1983. It should be noted, however, that treaties with foreign
sovereigns and domestic indigenous tribes are subject to different
constitutional and statutory authority than with domestic indigenous tribes.
See id. at 1148, 1163 n.273. While several courts have held U.S.
government-Indian treaties to be within the scope of § 1983, no court has
similarly made a conclusory finding that a § 1983 international treaty has
a right of action under the civil rights statute. See Roman-Nose v. New
Mexico Dept. of Human Services, 967 F.2d 435 (10th Cir. 1992). With reference
to the allegation by plaintiff that § 1983 provided a right of action for
a violation of the International Covenant on Civil and Political Rights, the
Tenth Circuit found, “nor do we know of any manner by which Plaintiff can
obtain relief from state actions which violate international treaties.”
Id. at 436–37. See generally Cree v. Waterbury, 78 F.3d
1400, 1403 (9th Cir.1996); Mille Lacs Band of Chippewa Indians v. Minnesota,
124 F.3d 904 (8th Cir. 1997); Shoshone-Bannock Tribes v. Fiah & Game
Commission, 42 F.3d 1278 (10th Cir. 1994).
Professor Vazquez also notes
that the term “law” in a closely related provision of the Civil
Rights Act of 1870, the predecessor to the current version of § 1983,
included “a treaty between this Government and a foreign nation.”
Vazquez at 1146 n.271. See also Baldwin v. Franks, 120 U.S. 678 (1887);
Jordan Paust, Breard and Treaty-Based Rights Under the Consular
Convention, 92 Am. J. Int’L L. 691, 693 (1998) (discussing, in part,
§ 1983 and the rights of consular officers under the Vienna Convention,
which Prof. Paust describes as a “self-executing treaty”).
[307]. See Henkin, supra note
18, at 342–43.
[308]. Vienna Convention, supra note
18.
[309]. General Comment 24, supra note
213, para. 4.
[310]. See id. paras. 6, 10. See
also Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, 1951 I.C.J. 15 (May 28) (adopting similar standard). The
United States has not ratified the Vienna Convention, but (through the State
Department) it has indicated that it believes that much of the Convention
reflects customary international law.
[311]. See William A. Schabas, supra note
112, at 317–18 (1995); Curtis A.
Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the
International Role of International Law, 86 Geo. L. J. 479, 537
n.243 (“These [reservations, declarations, and understandings] include
retention of certain substantive rights that are in conflict with provisions of
the Covenant, such as the right to execute juveniles.”). See also
Nanda, supra note 112, at
1331–32 (1983).
[312]. See
Bradley, supra note 311, at 537
n.1250. See also Schabas, supra note
311, at 317–18; but cf.
Certain Norwegian Loans (Fr. V. Nor.), 1957 I.C.J. 9, 66.
[313]. 15 F. Supp. 2d 1210 (M.D. Ala.
1998).
[314]. See Austin v.
Hopper, 15 F. Supp. 2d 1210, 1259 (D. Ala. 1998). The Austin court also
referred to the Senate Committee on Foreign Relations Report on the
International Covenant on Civil and Political Rights, S. Exec. Rep. No. 23,
102d Cong., 2d Sess. (1992). See id. at 1259 n.222. See
also Power Auth. of New York v. Federal Power Comm’n, 247 F.2d 538
(D.C. 1957). In reviewing a purported improper reservation to a 1950 treaty
between the United States and Canada, the court found no change in the
relationship between the United States and Canada under the treaty and that the
reservation had nothing at all to do with the rights or obligations of either
party. The court further stated that “to the extent here relevant, the
treaty was wholly executed on its effective date.” Id. The U.S.
Supreme Court granted certiorari and vacated the decision as moot without
explanation. American Public Power Ass’n v. Power Auth. of New York, 355
U.S. 64 (1957).
[315].
Following a brief hearing, the district court summarily concluded that the death sentence was facially valid in spite of an international treaty signed by the United States which prohibits the execution of individuals who were under eighteen years of age when the crime was committed. I believe this complicated issue deserved a full hearing, evidentiary if necessary, on the effect of our nation’s ratification of the ICCPR and the reservation by the United States Senate to that treaty’s provision prohibiting the execution of anyone who committed a capital crime while under eighteen years of age.
The penultimate issue that the district court should have considered is whether the Senate’s reservation was valid. Article 4(2) of the treaty states that there shall be no derogation from Article 6 which includes the prohibition on the execution of juvenile offenders. ICCPR, 999 U.N.T.S. at 174. Furthermore, there is authority to support the proposition that the Senate’s reservation was invalid.
If the reservation was not valid, then the district court should determine whether the United States is still a party to the treaty. If the reservation was a “sine qua non” of the acceptance of the whole treaty by the United States, then the United States’ ratification of the treaty could be considered a nullity. But, if the United States has shown an intent to accept the treaty as a whole, the result could be that the United States is bound by all of the provisions of the treaty, notwithstanding the reservation.
These are not easy questions and testimony about the international conduct of the United States concerning the subjects contained in the treaty, in addition to expert testimony on the effect of the Senate’s reservation may be necessary. A federal court that deals with federal law on a daily basis might be better equipped to address these issues; however, the motion is before the state court and it should do its best to resolve the matter. Accordingly, I would reverse the district court’s denial of Domingues’ motion and remand the case for a full hearing on the effect of the ICCPR on Domingues’ sentence.
Domingues v. Nevada, 961 P.2d 1279, 1280 (1998) (Rose, J., dissenting). See generally, M. Cherif Bassiouni, Reflections on the Ratification of the International Covenant on Civil and Political Rights by the United States Senate, 42 DePaul C. Rev. 1169, 1190–93 (1993).
[316]. See
Murray v. The Schooner Charming Betsy, 6 U.S. 64, 118 (1804) (“It has also
been observed that an Act of Congress ought never be construed to violate the
law of nations if any other possible construction remains.”)
[317]. This test is significantly easier to
meet than the “special factors” requirements of Bivens when
determining if a direct right of action exists.
[318]. For example, an international human
rights claim based upon international customary law would be precluded under a
Bivens theory if the putative plaintiff arguably has a claim under state
or federal law.
[319]. See Maine
v. Thiboutot, 448 U.S. 1, 4, 6–8 (1980).
[320]. The “special factors counseling
hesitation” test, applicable to implied cause of action analysis, is used
to sidestep the conclusion a § 1983 review leads them to. See
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388, 396 (1971); see also White v. Paulsen, 997 F. Supp. 1380 (E.D.
Wash. 1998); Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244 (C.D. Cal. 1999),
discussed infra Part V.B.
[321].
See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980);
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Jota v. Texaco, 157 F.3d 153 (2d
Cir. 1998); In re Estate of Ferdinand E. Marcos, Human Rights
Litigation, 978 F.2d 493 (9th Cir. 1992).
[322]. Judiciary Act, ch. 20, § 9, 1 Stat. 73, 77
(1789), codified at 28 U.S.C. § 1350 (1982) (“The district court
shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United
States.”).
[323].
“Aliens” within the meaning of the ATCA would include those who
reside in the United States, see, e.g., Filartiga, 630
F.2d 876 and Marcos, 978 F.2d 493, as well as in its prisons,
see Jama v. INS, 22 F. Supp. 2d 353 (D. N.J. 1998). In 1996, there were
19,000 “noncitizens” (18%) inmates in federal prison. See U.S.
Sourcebook of Criminal Justice Statistics, supra note
56, at 534.
[324]. See, e.g., Kenneth C.
Randall, Federal Jurisdiction Over International Law Claims: Inquiries Into
the Alien Tort Statute, 18 N.Y.U. J. Int’l L. & Pol. 1, 2
(1985).
[325]. 28 U.S.C. §
1350.
[326]. 28 U.S.C. § 1331.
[327]. See 32A Am. Jur. 2d Federal
Courts Sec 1046, (Federal Common Law) (1995) (“The term ‘laws,’
within the meaning of 28 U.S.C.A. § 1331 embraces claims founded on
federal common law. The statutory grant of jurisdiction in 28 U.S.C.A. §
1331 will support claims founded upon federal common law as well as those of a
statutory origin; federal common law as articulated in rules that are fashioned
by court decisions are ‘laws’ as that term is used in §
1331.”); Illinois v. City of Milwaukee, Wis., 406 U.S. 91 (1972); see
also Airco Indus. Gases, Inc. v. Teamsters Health & Welfare Pension
Fund, 850 F.2d 1028 (3d Cir. 1988). See also 13b Charles Alan Wright et
al., Federal Practice and Procedure § 3563 60 (1984) (“The most
significant expansion of ‘laws’ in section 1331 has been with regard
to what is called ‘federal common law.”)
[328]. See Wright, supra note
327, at 62–63; Judge Friendly,
In Praise of Erie—And of the New Federal Common Law, 39 N.Y.U. L.
Rev. 383 (1964).
[329]. See Kadic
v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Jama v. INS, 22 F.Supp. 2d 353
(D. NJ. 1998); Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3
(D.D.C. 1998); In re Estate of Ferdinand E. Marcos, Human Rights
Litigation, 978 F.2d 493 (9th Cir. 1992); Forti v. Suarez-Mason, 672 F. Supp.
1531 (N.D. Cal. 1987).
[330]. See
The Paquete Habana, 175 U.S. 677 (1900).
[331]. See Marcos, 978 F.2d at 502–03.
See also U.S. Const. art. VI; U.S. Const. art. III, § 2.
[332]. See Montana-Dakota Util. Co.
v. Northwestern Pub. Serv. Co., 341 U.S. 246, 249 (1951) (“The
Judicial Code, in vesting jurisdiction in the District Courts, does not create
causes of action, but only confers jurisdiction to adjudicate those arising
from other sources which satisfy its limiting provisions.”)
[333]. There is current academic debate on
the impact of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) upon federal common
law’s inclusion of international law. Compare Beth Stephens, The
Law of Our Land: Customary International Law as Federal Law After Erie, 66
Fordham L. Rev. 393, with Curtis A. Bradley & Jack L. Goldsmith,
Federal Courts and the Incorporation of Federal Law, 111 Harv. L. Rev.
1824 (1998). The courts implicitly recognize, however, by relying upon The
Paquete Habana, that the federal common law of international customary law
survived Erie.
[334]. See
Kenneth Randall, Federal Questions and the Human Rights Paradigm, 73
Minn. L. Rev. 349, 354 (1988).
[335].
997 F. Supp. 1380 (E.D. Wash. 1998).
[336]. See White, 997 F. Supp. at 1383.
[337]. Id. at 1383, citing
Marcos, 25 F.3d at 1475.
[338]. See Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388 (1971). This raises the question,
beyond the scope of this Article, as to why the judiciary needs statutory
permission to enforce the constitution. See Susan Bandes, Reinventing
Bivens: The Self-Executing Constitution, 68 S. Cal. L. Rev. 289, 291 (1995)
(asking the purpose served by § 1983).
[339]. White, 997 F. Supp. at 1384,
noting Schweiker v. Chilicky, 487 U.S. 412 (1988).
[340]. See Bivens, 403 U.S.
388. Bivens, however, concerned an implied cause of action
directly under the Fourth Amendment, not an international law claim raised
under a federal common law theory. See id.
[341]. White, 997 F. Supp. at
1384, citing Bivens, 403 U.S. at 396.
[342]. See White, 997 F. Supp. at
1384.
[343]. Id.
[344]. See Torture Victim Protection
Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C.
§ 1350 (1994)).
[345]. See
White, 997 F. Supp. at 1384.
[346]. Id.
[347]. See id. There is nothing in the Torture Victim
Protection Act’s legislative history nor any doctrinal basis to support a
finding that because Congress may have had a chance to decide an issue that the
courts should read in an implicit determination when they choose not to.
[348]. See Torture Victim Protection
Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C.
§ 1350 (1994)); Statement By President George Bush Upon Signing H.R. 2092,
28 Weekly Comp. Pres. Doc. 465 (Mar. 16, 1992) reprinted in 1992
U.S.C.C.A.N. 91.
[349]. See
White, 997 F. Supp. at 1385 n.2.
[350]. Id. at 1385. “The
determination of what international obligations the United States chooses to
recognize or enforce is an area that long has been recognized as entrusted
principally to the Legislative and Executive branches of federal
government.” Id.
[351].
Id.
[352]. Id. at
1380.
[353]. See Chappell
v. Wallace, 462 U.S. 296 (1983); U.S. Const. art. I, § 8, cl. 14. In a
case involving claims of drug experimentation by govation alleged . . .
particularly when the international legal community specifically outlawed
involuntary medical experiments upon human prisoners in the standards set by
the Nuremb erg Tribunals.” Id. at 709–10; See also
United States v. Brandt (The Medical Case), 2 Trials of War Criminals
Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 181
(1949).
[354]. White also fails
to give equal weight to another maxim of Bivens: “where federally
protected rights have been invaded, it has been the rule from the beginning
that courts will alert to adjust their remedies so as to grant the necessary
relief.” Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388, 392 (1971), citing Bell v. Hood, 327 U.S. at
684. See also George D. Brown, Letting Statutory Tails Wag
Constitutional Dogs—Have the Bivens Dissenters Prevailed?, 64
Ind. L.J. 263 (1989). Prof. Brown notes,
Nine years after Bivens was decided, then-Justice Rehnquist urged the Court to overrule it, denouncing it as a ‘decision by a closely divided court, unsupported by the confirmation of time.’ As an initial matter, Justice Rehnquist’s attack seems surprising, even inaccurate . . . . Today, however, Justice Rehnquist’s 1980 critique has a ring of prophecy. Four times in the last six years the Court has held Bivens unavailable . . . . The Court may insist that Bivens is alive and well, but one has to wonder, and worry . . . . The basic question is availability of judicial relief for constitutional violations.
Id. at 264–65.
[355]. See
Turner v. Safely, 482 U.S. 78, 89 (1987) and discussion in Part
III.
[356]. While beyond the
scope of this Article, the White court’s conclusion that adequate
alternative bases exist under domestic law also fails to review the myriad of
immunity, standing and applicable state law affecting constitutional claims. In
the context of sexual abuse of female prisoners, see Landerberg,
supra note 108. See generally
Steven H. Steinglass, Wrongful Death Actions and Section 1983, 60 Ind.
L.J. 559 (1988); J.E. Kirklin & Martin Schwartz, § 1983 Litigation:
Claims, Defenses, and Fees (2d ed. 1991).
[357]. See Hawkins v. Comparet-Cassani, 33 F. Supp.
2d 1244 (C.D. Cal. 1999). Further muddying these unchartered waters, the court
stated that all cases “that found a cognizable right under jus
cogens norms of international law involved either acts committed on a
foreign citizen or acts committed by a foreign government or government
official. There is no reported case of a court in the United States recognizing
a cause of action under jus cogens norms of international law for acts
committed by United States government officials against a citizen of the United
States.” Id. at 1255. This analysis and conclusion are simply
incorrect. The cases referred to by the court involve “aliens”
because the claims are under the ATCA. At the time Hawkins was decided,
there were opinions finding violations of international customary law for acts
committed by U.S. officials. See, e.g., Jama v. INS, 22 F.
Supp.2d 353 (D. N.J. 1998). Further, the issue has been rarely addressed by the
courts simply out of their own reluctance. Interestingly, White
recognized that “federal courts have the authority to imply the
existence of a private right of action for violations of jus cogens
norms of international law.” White v. Paulsen, 997 F. Supp. 1380, 1383
(E.D. Wash. 1998).
[358]. In Martinez
v. City of Los Angeles, 141 F.3d 1373, 1382 (9th Cir. 1998), the Ninth
Circuit refused to find an implied cause of action under § 1331 for an
international customary law claim because the defendants were state, not
federal officers as in Bivens, a distinction without meaning.
[359]. See Kadic v. Karadzic, 70 F.3d
232 (2d Cir. 1995); Jama v. INS, 22 F. Supp. 353, where the plaintiffs also
alleged an implied cause of action for violation of international law. With
even less analysis of the issue, Jama concluded that “[b]ecause the
ATCA provides jurisdiction over Plaintiffs’ claims based upon
international law, it is unnecessary to decide if 28 U.S.C. § 1331
(federal question jurisdiction) provides an independent basis for
jurisdiction.” Id. at 363. See also Heinrich v. Sweet, 49 F.
Supp. 2d 27 (D. Mass. 1999).
[360].
These claims do not trigger the doctrine that a claim involving both statutory
and constitutional issues should normally be adjudicated on non-constitutional
grounds. The U.S. Supreme Court has never found that the federal common law of
international customary law is “constitutional” law. The newer
decisions, in fact, seem to suggest that the constitutional questions should be
decided instead of the federal common law claim. See White, 997 F. Supp.
at 1380; Hawkins, 33 F. Supp. 2d. at 1244 (finding no need to decide the
international customary law claim when the Eighth Amendment creates a possible
remedy).
[361]. See The Paquete
Habana, 175 U.S. 677, 700 (1900). The Court went on to say, “For
this purpose, where there is no treaty, and no controlling executive or
legislative act or judicial decision, resort must be had to the customs
and usages of civilized nations.” Id. (emphasis added).
[362]. See Hawkins, 33 F.
Supp. 2d at 1256 (citing Handel v. Artukovic, 601 F. Supp. 1421, 1428 (C.D. Cal
1985)); White, 997 F. Supp. at 1385; Randall, supra note
324, at 407
(“international issues occupy one of the post-Erie enclaves of federal
judge-made law,” citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
426 (1964)). See also Justice Harry Blackmun, The Supreme Court and
the Law of Nations, 104 Yale L.J. 39 (1994) (“Although commentators
continue to debate the extent of executive, legislative or judicial power to
trump international law, the import of The Paquete Habana is clear:
Customary international law informs the construction of domestic law, and, at
least in the absence of any superceding positive law, is
controlling.”).
[363]. See
The Paquete Habana, 175 U.S. at 700. See generally Louis Henkin,
International Law as Law in the United States, 82 Mich. L. Rev.
1555 (1984).
[364]. For a thoughtful
review of the success and failures of U.S. courts in furthering rights and
changing social policy such as segregation, see Gerald R.
Rosenberg, The Hollow Hope (1991). See also T. Yarbrough, Judge Frank
Johnson and Human Rights in Alabama (1981). Compare Derrick A. Bell,
Jr., Serving Two Masters: Integration Ideals and Clients Interests In School
Desegregation Litigation, 85 Yale L. J. 470 (1976) with Lucie E.
White, To Learn and Teach: Lessons from Driefontein on Lawyering and
Power, 1988 Wis. L. Rev. 699 (1988) on the conflicts in the lawyer’s
role when implementing social change. Frank Sikora, The Judge: The Life and
Cases of Alabama’s Frank M. Johnson, Jr. (1992).
[365]. See Ellen Ash Peters,
supra note 24, at 219.
[366]. Alison Anderson, Lawyering in the
Classroom: An Address to First Year Students, 10 Nova L. Rev. 271, 274
(1986).
[367]. For judicial perspectives
on international human rights law incorporation theory, see Blackmun,
supra note 362; Edward D. Re, The
Universal Declaration and the Domestic Courts, 31 Suffolk U. L. Rev. 585
(1998).
[368]. See generally Anne
Bayefsky & Joan Fitzpatrick, International Human Rights Law in United
States Courts: A Comparative Perspective, 15 Mich. J. Int’l L. 1
(1992); Jackson, supra note 22.
[369]. See the Alien Tort Claims Act, 28 U.S.C.
§ 1350 (1994) (“The district court shall have original jurisdiction
of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.”).
[370]. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163 (1803); Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388, 392 (1971).
HLSHRJ@law.harvard.edu
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