by Corey Weinstein, MD

It was a little more than sixty years ago that the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights (UDHR). For the first time in history, governments from around the world declared that “All human beings are born free and equal in dignity and rights,” and that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

A number of treaties and conventions have been promulgated based on the UDHR, stating the principle that all people in any kind of detention or prison must “be treated in a humane manner and with respect for the inherent dignity of the human person.”1 The declaration of the inherent dignity of all people is the foundation of human rights doctrine and stands in stark contradiction to societies’ historical treatment of law breakers and the imprisoned.

In ancient Greece, “infamous” criminals were not allowed to appear in court, make public speeches or serve in the army. Criminals in Rome could be denied voting rights or the ability to hold public office.2 In medieval Europe, infamous criminals suffered “civil death” which resulted in the deprivation of all rights, confiscation of property and exposure to injury. Those deemed “outlaws” could be killed with impunity by anyone. In England, felons lost their property and even right of inheritance. Their property went to the state.3 These views and rules were brought to America by the colonists and except for inheritance rights were largely retained by the states after the American Revolution.

Looking more closely at California, the Penal Code of 1886, sections 673-674, stated that “A sentence of imprisonment in a state prison for any term less than for life suspends all the civil rights of the persons so sentenced, and forfeits all public offices and all private trusts, authority, and power during such imprisonment. A person sentenced to imprisonment in the state prison for life is thereafter deemed civilly dead.” The imprisoned had no legal identity. Authorship and copyright were impossible. Even after release, former prisoners could not vote, hold office, make contracts, own property or compose a will. In 1919 the Penal Code was amended to restore certain rights but only at the discretion of the parole board.4

It wasn’t until 1968 that the “Convict Bill of Rights” was installed as California Penal Code section 2600. The statute expanded the reading, writing and correspondence privileges of prisoners, including receiving all printed matter that did not incite violence or was not grossly obscene. Prisoners could inherit property and write to lawyers and public officials confidentially, and could own written material.

In the last forty years there has been some erosion in California law concerning prisoners’ rights, but the core aspects have been preserved. Notably, however, individual prisoners no longer have the right to correspond confidentially or have confidential individualized scheduled interviews with members of the media.

Current voting disenfranchisement laws in the United States are an important vestige of colonial civil death laws. Forty-eight of the 50 states have disenfranchisement laws that deprive convicted offenders of the right to vote while in prison. In most states offenders on parole or probation cannot vote. And in 14 states ex-offenders are effectively barred from regaining their voting rights despite having paid their debt to society. In 10 states, one in four black men is permanently disenfranchised. The fact that most of the states with permanent disenfranchisement statutes are in the southeastern U.S. speaks to the continued racist character of laws in the old Confederacy.5

The application of human rights principles to incarcerated people is an important step in the development of humane societies. The positive obligations required by human rights include a great deal more than the protections guaranteed by the Eighth Amendment of the U.S. Constitution. The Eighth Amendment prohibits cruel and unusual punishment, defining what is too egregious to be done to prisoners. A human rights framework goes far beyond that and is well expressed in a variety of international treaties and rules. One of the oldest international instruments concerning the treatment of people in custody is the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMRTP).6

The SMRTP is a detailed document which provides principles and rules for minimally-adequate penal systems. Many of the provisions are routine in industrialized nations today. The separation of convicted and pre-trial detainees, and men and women; standards for adequate space, light, ventilation and heat; and decent clothing, bedding and food are all fairly well maintained in modern prisons.

But other provisions of the 55-year-old SMRTP are often left wanting. Rule 27 requires that discipline and order be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life. Excessive disciplinary practices are not uncommon, particularly in poorly-managed private prisons, and there are thousands of U.S. prisoners serving long terms in solitary confinement or subjected to devices like restraint chairs, chemical sprays or non-lethal weapons that border on or are frankly torture.

SMRTP Rules 22-26 require well-managed and adequate medical services. In the last 30 years almost all of the states were judged at one time or other to be in violation of the U.S. Constitution over their deliberately indifferent medical care. Some are still under court supervision. California’s prison medical services have been under court-ordered receivership since 2006. Continued deficiencies of care forced prisoners to sue the state, arguing in federal court that overcrowding must be reduced in order for adequate medical care to be established. California is appealing a court order to immediately decrease the state’s prison population by up to 40,000. The U.S. Supreme Court heard oral argument in the case in November 2010, and a decision is pending.7 [See, e.g.: PLN, Aug. 2010, p.1; July 2010, p.14].

SMRTP Rule 53 requires that women be guarded by female officers who are the only staff that hold authority over women prisoners or hold the keys to the areas where women prisoners are held. Further, no male staff member can enter a women’s facility unless accompanied by a female officer. Yet it is still common in U.S. prisons for men to guard women prisoners even in the most sensitive units like Administrative Segregation, where women are in their cells up to 23.5 hours a day and are subject to intrusive observation when using the toilet or showering. In California, male guards have access to women’s housing areas, walk the tiers of high-security units and escort shackled women prisoners, having direct physical contact.

SMRTP Rules 71-76 prescribe that prisoners be required to work at safe jobs in useful trades that prepare them for earning an honest living after release. Work should closely resemble that of similar jobs outside prison, and be equitably compensated. In the often-overcrowded U.S. prison system only 5% of prisoners work in prison industries.8 Most who do have jobs in prison perform make-work tasks such as pushing brooms or cleaning toilets that others have cleaned recently.

It is in the International Covenant on Civil and Political Rights that one of the clearest statements is made that frames the human rights approach to incarceration. Article 10 affirms that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The ICCPR goes on to assert in Article 10(3) that “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” 9

The SMRTP is very specific in Rules 65-66, stating, “The treatment of persons sentenced to imprisonment ... shall have as its purpose ... to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so.... To these ends all appropriate means shall be used, including religious care ... education, vocational guidance and training, social casework, employment counseling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner....” 10

This stands in stark contrast to the purpose of prisons in the U.S. today. The principles guiding U.S. prison management during almost all of the past 200 years have been retribution, deterrence and incapacitation. Incapacitation refers to incarcerated persons being unable to commit crimes outside of prison walls.11 Simply put, retribution and deterrence are punishment strategies designed to drive out the desire to commit crime, while incapacitation is merely a warehousing of prisoners to keep them off the streets.
These are failed tactics that result in high recidivism rates and contribute to the economic disaster of severe poverty among the poorest communities. In 2008, 1 out of 99 adults was behind bars in the U.S. and more than 50% of prisoners were back in custody within three years of their release.12

Long sentences in warehouse-like prisons incapacitate in more ways than just keeping people off the streets. Idleness, overcrowding and despair deprive the individual of the capacity to act independently, to have adequate self esteem and to feel they are part of mainstream society. All of which contributes to the deepening and widening of the permanent criminal underclass in the U.S.13

A human rights approach can be adopted to overall prison management. The International Center for Prison Studies (ICPS) uses such an approach in all of its prison management projects. It does so due to the importance of managing prisons within an ethical context which respects the humanity of everyone involved in prison: prisoners, prison staff and visitors. Also, an ethical human rights approach is the most effective and safe way to manage prisons. The management of prisons is about the management of human beings. This means that there are issues which go beyond the usual benchmarks of effectiveness and efficiency to deep matters of respect for others, dignity of the individual and setting a norm of proper behavior.14 The ICSP has worked primarily with pan-European nations in concert with the World Health Organization’s Health in Prison Project since 1995.

A good example of the effect of humane prison management was carried out twenty years ago at the 23.5-hour-per-day lockdown supermax unit at the Washington Correctional Center (WCC) in Shelton, Washington. The supermax unit at WCC was a horror of abuse and strife. Prisoners acted out by burning mattresses, yelling and screaming at all hours, threatening and striking staff, and gassing (throwing human waste on) staff and other prisoners. Staff acted in kind with brutality and disrespect. A new management team was brought in to run the facility.

The superintendent developed a single-minded strategy to bring the unit under control. He focused on staff behavior. A 28-point set of rules was promulgated and all staff were expected to follow the directives. Key provisions included:

• the principle that men are sent to prison as punishment and not for punishment

• a belief in a man’s capacity to change his behavior

• a normalization of prison routines including programs, amenities and services

• respectful treatment, cultural sensitivity and lack of racial bias

• timely and dependable responses to prisoner requests, and never lying

• staff modeling of the behavior expected of prisoners

• consistent and fair discipline and swift punishment of acts that threaten security

• using only the force necessary to maintain order, security and safety

When it was discovered that line staff were not adhering to the rules they were disciplined or fired, and any supervisor not enforcing the rules was fired. The result of this management strategy was a complete reversal of the chaos and violence in the unit. Prisoners spoke with nearly one voice, saying that they were able to do their time productively in order to achieve transfer back to mainline prisons. What the prisoners appreciated most was simply being treated like a human being.15

It is in the European Union (EU) that the realization of human rights principles in penal practices has been most formally developed. Human rights conventions and covenants are incorporated into law with mechanisms for ensuring compliance. An important such mechanism is the Optional Protocol to the International Covenant on Civil and Political Rights. The Protocol furthers the purposes of the ICCPR by setting up a way for individuals to complain to the Human Rights Committee and be officially heard. The Human Rights Committee has the power to investigate any state party that is a signatory to the Protocol.16

Using the ICCPR as a basis, the nations of the EU conduct regular investigations into each other’s penal practices and hear from individuals who have not had their grievances properly adjudicated. Needless to say, the United States has not signed the Protocol nor implemented a domestic program of oversight that would serve the same purpose. The U.S. continues to assert that the U.S. Constitution is a sufficient document to insure human rights standards for the incarcerated.

The U.S. is routinely very late in making its obligatory reports to the UN Committee on Torture under the Convention Against Torture (CAT). In May 2006 the UN Committee responded to the United States’ second periodic report under CAT, noting that the report was 3.5 years late. The Committee was critical, found the U.S. was out of compliance with CAT requirements, and expressed concern regarding the following: 17

• absence of a law specifically prohibiting torture, with appropriate penalties

• psychological torture being ruled limited to “prolonged mental harm”

• U.S. law excluding times of armed conflict and secret detention facilities from limitations on torture

• law enforcement personnel not being adequately trained re: torture and CAT

• the use of waterboarding, short shackling, induction of fear with dogs, sexual humiliation, stress positions and other cruel, inhumane or degrading treatment or punishments, and the lack of investigations to bring perpetrators to justice

• limitations on federal civil actions brought by prisoners for mental or emotional injury that cannot also show physical injury (under the Prison Litigation Reform Act)

• the need to review execution methods to prevent severe pain and suffering

• the lack of measures to prevent all sexual violence in detention centers and insure effective investigation and prosecution of all perpetrators

• persistent gender-based humiliation and shackling of women during childbirth
• the practices of keeping children and adults in the same prison, and children receiving life sentences

• the need to review the use of electroshock devices that have proven lethal during restraint procedures

• the common use of prolonged solitary confinement in supermax prisons

• the many allegations of brutality and excessive force against vulnerable populations, particularly racial minorities, migrants and LGBT detainees

This long list of concerns and admonishments demonstrates how far the United States is from being a nation that respects and implements human rights for people who are incarcerated.

When prisons serve a positive social function and become a place of renewal and rehabilitation, communities are safer. Not only do prisoners benefit from living in humane circumstances, but society reaps the gain as well. Despair and hopelessness are replaced by a realistic, more positive sense of the future for both individuals and society. Turning from the negative approach of stopping cruel punishments under the U.S. Constitution to the positive requirements of the human rights standards is a good step toward making prisons work for the good of all.

Having prisons in which the essential aim is rehabilitation and social reintegration is a necessary step in beginning to heal the growing divide between rich and poor and stop the dramatic growth of severe poverty in the U.S. As the world’s leading jailer the U.S. must not only reverse the size of its prison population, but also alter the purpose of incarceration. Human rights doctrine and standards provide a well-practiced and successful way forward for our criminal prosecution and detention systems, and a way to assist in bringing the U.S. Constitution 200 years forward into the modern era.

Dr. Corey Weinstein, a physician in San Francisco, California, is a long-term human rights advocate for prisoners. He works with the American Public Health Association, California Prison Focus and the WHO Health in Prison Project, and wrote this article exclusively for PLN

ENDNOTES

1 Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment; adopted by the United Nations General Assembly, Resolution 43/173 of 12/9/88

2 Ewald, Alec; “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, Wisconsin Law Review, p.1045, 2002

3 Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, The Sentencing Project, 1998

4 Eric Cummins, The Rise and Fall of California’s Radical Prison Movement, Stanford U. Press, 1994, p.25

5 Op. cit., Losing the Vote

6 Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663C (XXIV) of 31 July 1957 and resolution 2076 (LXII) of 13 May 1997

7 Ritchey, Warren, The Christian Science Monitor, July 14, 2010

8 Cole and Smith, The American System of Criminal Justice, Thomas Learning, Inc., 2007, p.507

9 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966. Entered into force 23 March 1976 in accordance with Article 49

10 Op. cit. Standard Minimum Rules

11 http://law.jrank.org/pages/1358/Incapacitation.html; Incapacitation – The Scholarly Literature on Incapacitation and the Measurement of Incapacitative Effects, Estimates of Incapacitation, Offending Trajectories and Incapacitation Policy

12 One in 100: Behind Bars in America 2008, Pew Center on the States, 2009

13 The Warehouse Prison, John Irwin, Roxbury Publishing Company, Los Angeles, CA, 2005

14 Coyle, Andrew, A Human Rights Approach to Prison Management, International Centre for Prison Studies, London, UK, 2002

15 Author’s interviews with staff and prisoners at the Maximum Control Complex at the Washington Correctional Center in Shelton, Washington

16 Optional Protocol to the International Covenant on Civil and Political Rights, G.A. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59. U.N. Doc 63/16 (1966), 999 U.N.T.S. 302, entered into force 3/23/1976

17 Consideration of Reports Submitted by State Parties Under Article 19 of the Convention, United States of America, Committee Against Torture 36th Session, 1-19 May 2006, United Nations, CAT/US/CO/2, 25 July 2006

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