 |
 |
Human Rights and Wrongs in Our Own
Backyard: |
|
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. |
|
—Eleanor Roosevelt[1] |
|
The degree of civilization in a society can be judged by entering its prisons. |
|
—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]
*** Top of Page 82 ***
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 abuse by corrections officers.[51] The United States Department of Justice joined the suit, which brought claims under the Civil Rights of Institutionalized Persons Act.[52]
This is not genocide in Bosnia or Rwanda, or the tragic “extinction” of small indigenous groups in the Amazon. This is not the consequence of an impoverished country run by an inept or terrorizing regime, nor the result of a rigid, undeveloped or historically 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]
*** Top of Page 95 ***
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]
*** Top of Page 98 ***
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]
*** Top of Page 99 ***
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 the mail. Justice O’Connor found that a prisoner’s constitutional rights are not completely extinguished when she passes through the prison gates. However, she fashioned a new, significantly lower level of scrutiny for inmates’ constitutional claims, replacing the “strict scrutiny” test with the “rational basis” test regardless of the rights at issue.[169] 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,
*** Top of Page 107 ***
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;
*** Top of Page 108 ***
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]
*** Top of Page 111 ***
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]
*** Top of Page 112 ***
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 this Part is the 100-year-old maxim that “international law is part of our law.”[275] The historical roots of our Constitution strongly support the conclusion that “the law of nations has always been part of our federal common law.”[276] Moreover, the “modern position” on international customary law incorporation as articulated 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]
*** Top of Page 124 ***
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]
*** Top of Page 125 ***
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 ado