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EXTERNAL
AI Index: AMR 51/25/95
Amnesty International
International Secretariat
1 Easton Street
London WC1X 8DJ
United Kingdom
Tel: (44) (71) 413 5500
Fax: (44) (71) 956 1157
UNITED STATES OF AMERICA
Human rights violations: a
summary of concerns
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
THE DEATH PENALTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TORTURE AND ILL-TREATMENT IN POLICE CUSTODY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Deaths in police custody from use of restraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Police Shootings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Allegations of excessive force by federal law enforcement
officials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ILL-TREATMENT IN PRISONS AND JAILS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Ill-treatment in Texas prisons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Pelican Bay State Prison, California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Other examples of ill-treatment in jails and prisons. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conditions in super-maximum security units. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
REMEDIES FOR TORTURE AND ILL-TREATMENT UNDER US LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
OTHER CONCERNS IN THE USA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Prisoners of conscience and fair trials in political cases. . . . . . . . . . . . . . . . . . . . . . . . . 36
Laws discriminating against homosexual practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Treatment of Haitian and Cuban asylum seekers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Appendix: Selected International Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
==================
UNITED STATES OF AMERICA
Human rights violations: a
summary of Amnesty International's concerns
INTRODUCTION
This document summarizes Amnesty International's main current concerns in
the USA. The issues covered include the death penalty, where the resumption
and increase in executions in recent years is incompatible with human
rights standards; police brutality and use of excessive force, including
deaths in custody and unjustified shootings; and torture and ill-treatment
in prisons. Racial minorities have often been disproportionately the
victims of abuses. In all these areas, Amnesty International has found
violations of international standards, including those contained under
Articles 6, 7, 10 and 26 of the International Covenant on Civil and
Political Rights (ICCPR). The report also summarizes Amnesty
International's concerns regarding the fairness of trials in political
cases, discriminatory sodomy laws, and the treatment of Haitian and Cuban
asylum seekers.
Although US law prohibits torture and ill-treatment and provides a
range of domestic remedies for victims of abuses, Amnesty International
believes that more could be done to prevent abuses by, for example, better
monitoring and investigation of complaints of ill-treatment and stronger
disciplinary actions against those who perpetrate abuses. It also believes
that the federal government should take a more active role in monitoring
complaints of excessive force by state law enforcement agents and bringing
those responsible to justice, in accordance with US obligations under
international law. Amnesty International has also urged the federal
authorities to take stronger steps to ensure that conditions in state and
federal prisons conform to minimum international standards for the humane
treatment of prisoners. It is particularly concerned that conditions in
some new, super-maximum security prison units in the USA fall short of such
standards.
The USA ratified the ICCPR in June 1992 and the United Nations (UN)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment in October 1994. However, the US Government entered a large
number of reservations, declarations and understandings when it ratified
the ICCPR, including reservations to the following non-derogable Articles:
Article 6 on the right to life, where the US Government reserved the right
of US states to execute juvenile offenders; Article 7, prohibiting torture
and other cruel, inhuman or degrading treatment, where the US considered
itself bound only to the extent that cruel, inhuman or degrading treatment
met the definition of "cruel and unusual punishment" prohibited under the
US Constitution; and Article 15(1), prohibiting retroactive penal
legislation. The US Government also made a reservation to the Convention
Against Torture similar to its reservation under Article 7 of the ICCPR.
Amnesty International considers that the above restrictions seriously
undermine the rights guaranteed by these treaties. If every government were
to ratify treaties only after making reservations to ensure there is no
change in existing state practice, the whole concept of international human
rights protection, and the authority of such treaties, would become
meaningless. Amnesty International has urged the US Government to withdraw
the conditions limiting acceptance of its obligations under the ICCPR and
the Torture Convention.
THE DEATH PENALTY
In 1972 the US Supreme Court struck down most US death penalty laws on the
ground that the arbitrary and discriminatory way in which the death penalty
was then applied violated the Constitution. However, a further Supreme
Court ruling in 1976 permitted states to reinstate the death penalty for
murder according to certain constitutional guidelines, and there has been a
steady increase in the use of the death penalty since then.*1 In March 1995
New York (which carried out its last execution more than 30 years ago)
became the thirty-eighth US state to reinstate the death penalty. More than
2,870 prisoners are currently under sentence of death across the USA. 266
prisoners were executed between 1977 (when the first execution took place
under the new laws) and the end of February 1995. Last year three states -
Idaho, Maryland and Nebraska - carried out their first executions in more
than 30 years.
Until last year, the only federal death penalty statute in force
under civilian law was the Anti-Drug Abuse Act, introduced in 1988, which
provides the death penalty for certain drug related murders. However, in
September 1994 President Clinton signed legislation which extended the
federal death penalty to more than 50 additional crimes, ranging from the
murder of federal officials to several non-homicidal offences, including
attempted assassination of the President and major drug trafficking. These
provisions were included in the Violent Crime Control and Law Enforcement
Act, 1994. The last execution under federal law was in 1963. However, at
least six people convicted under the Anti Drugs Abuse Act were under
sentence of death in February 1995 as were eight former members of the
armed services, sentenced to death for murder under federal military law.
(The last execution under military law was in 1961.)
Amnesty International believes that the increase in executions and in
the number of offences carrying the death penalty is inconsistent with
international standards which encourage governments to restrict their use
of capital punishment. The expansion of the death penalty under federal law
is directly contrary to the American Convention on Human Rights (ACHR),
signed by the USA in 1977, which states inter alia under Article 4(2) that
the death penalty "shall not be extended to crimes to which it does not
currently apply". It is also inconsistent with US obligations under the
ICCPR. The Human Rights Committee,*2 in its General Comment on Article 6 of
the ICCPR, states that States Parties are obliged to limit the use of the
death penalty and recommends that governments "consider reviewing their
criminal laws in that light". The Committee has also stated that "...all
measures of abolition should be considered as progress in the enjoyment of
the right to life."
Dalton Prejean, a juvenile offender, was executed by electrocution in
Louisiana in May 1990. He was convicted of the murder of a white police
officer in 1978 when he was aged 17. He was tried and sentenced to death
by an all-white jury after the prosecutor had excluded all black people
from the jury panel. The governor of Louisiana denied clemency, despite a
recommendation by the Louisiana Board of Pardons and Paroles that Dalton
Prejean's death sentence should be commuted to life-without-parole. Their
recommendation was based on his abused and neglected childhood, his history
of mental problems and borderline mental retardation, and on his remorse
and model behaviour during 12 years on death row.
Unfairness of the death penalty in practice
Special procedures have been introduced in capital cases following US
Supreme Court rulings in the 1970s which were intended to eliminate the
arbitrariness and discrimination existing under past statutes. State laws
now authorize the death penalty only for aggravated murder, after a
separate sentencing hearing at which mitigating and aggravating
circumstances must be weighed before the judge or jury chooses between a
life or death sentence. Death sentences are automatically reviewed by the
state supreme court and prisoners then have the same rights as all
defendants to pursue further appeals, including appeals on constitutional
issues through both state and federal courts (known as habeas corpus
review).
Research by Amnesty International and other bodies has shown that,
despite these judicial safeguards, the death penalty remains both unfair
and discriminatory in practice. It is sought by prosecutors in only a small
proportion of homicide cases and there is wide variation in the treatment
of similar offenders. The evidence suggests that factors such as class,
race, politics and location of crime can play a far more decisive role in
who receives the death penalty than the crime itself; that it is imposed
disproportionately on the poor, minorities, the mentally ill or retarded
and those without adequate legal counsel.
Some US death penalty laws also directly contravene international
standards, for example laws permitting the execution of juvenile offenders
(offenders aged under 18 at the time of the crime). Many executions carried
out in the last few years have also contravened a series of safeguards
guaranteeing the protection of the rights of those facing the death penalty
adopted by the UN Economic and Social Council (ECOSOC). Although the US
Government has described the ECOSOC safeguards as "non-binding", they are
an important measure of a state's compliance with minimum international
standards.
Amnesty International's concerns have been documented in numerous
individual case histories and publications issued by the organization over
the years. They include the following:
- Execution of juvenile offenders: The USA continues to sentence minors to
death in violation of Article 6 of the ICCPR and other international human
rights treaties.*3 At the end of 1994 approximately 37 juveniles were under
sentence of death in 12 states. Since 1990 only four countries worldwide
are reported to have executed juvenile offenders: one was executed in Saudi
Arabia and one in Pakistan in 1992; one in Yemen in 1993, and six in the
USA. A total of nine juvenile offenders have been executed in the USA since
1985.
Although the USA has entered a reservation to Article 6 on the basis
of state laws permitting this practice, Amnesty International believes that
such a reservation to a non-derogable right*4 should be considered null and
void. No other government has entered a similar reservation to Article 6 of
the ICCPR. Indeed, the Human Rights Committee in its General Comment 24 has
stated that the prohibition under Article 6 of the arbitrary deprivation of
life cannot be reserved and that, in particular "a State may not reserve
the right ... to execute ... children".
A 1991 Amnesty International study of juvenile offenders under
sentence of death in the USA, found that most came from acutely deprived
backgrounds; many had suffered gross physical or sexual abuse as children;
most were of below-average intelligence and many suffered from mental
illness or brain damage. Many had been inadequately represented at their
trials and in a disturbing number of cases the defendant's youth itself was
not considered as a significant mitigating factor at sentencing.*5
- adequacy of legal representation: Amnesty International has documented
numerous cases in which capital defendants have received shockingly
inadequate legal presentation. Many of the prisoners executed in recent
years were represented at trial by inexperienced lawyers who failed to
investigate their clients' backgrounds or to raise relevant mitigating
evidence at the sentencing hearing. In some states indigent offenders are
assigned court-appointed lawyers who are paid extremely low fees, are
untrained in capital punishment law and may not even be experienced in
criminal law. The lack of competent counsel can seriously undermine other
fair trial safeguards existing in US law. Mistakes at trial may often not
be remedied on appeal as defendants may be procedurally barred from raising
issues at a later stage.
In some states, also, no state funding is provided for appeals beyond
the direct appeal to the state court and prisoners have to rely on
"volunteer" lawyers working without a fee for important appeals on
constitutional issues. However, there is a serious shortage of lawyers
prepared to take on such cases. The problem is particularly acute in Texas
which in December 1994 had more than 390 prisoners on death row, many of
whom were without legal representation.*6
Amnesty International believes that the lack of adequate legal
representation in many cases violates ECOSOC safeguard 5 which states that
capital punishment may only be carried out after a legal process which
gives all possible safeguards to ensure a fair trial, at least equal to
those contained in article 14 of the ICCPR, including the right of
defendants to adequate legal assistance at all stages of the proceedings.
- racial discrimination: 84% of prisoners executed since 1977 were
convicted of murdering white victims, despite the fact that blacks and
whites are the victims of homicide in roughly equal numbers (and in some
states the majority of victims are black). Numerous US studies have shown
that murders involving white victims are far more likely to result in death
sentences than those involving black victims after other legally relevant
factors have been taken into account. There is also evidence that black
offenders are disproportionately sentenced to death in some judicial
districts, especially those with a history of racial discrimination.*7
Also, many black prisoners on death row were sentenced to death by all-
white juries after prosecutors had deliberately excluded black people from
the jury pool. Although this practice was ruled unconstitutional in 1985,
the law does not apply retroactively to prisoners whose sentences had
already been confirmed on direct appeal.
Amnesty International believes that the racial disparities in the
application of the US death penalty violate the anti-discrimination
provisions of Articles 2 and 26 of the ICCPR.
Article 2(2) of the ICCPR requires each State Party to undertake steps to
adopt such legislative or other measures as may be necessary to effect the
rights under the Covenant. However, an amendment to the US crime bill
(extending the death penalty under federal law) which would have allowed
defendants to challenge their death sentences on grounds of racial
discrimination was dropped from the final version of the bill.*8
- mentally impaired: Amnesty International has documented the cases of more
than 50 prisoners suffering from mental illness or mental retardation who
have been executed in the USA in the past decade, in violation of ECOSOC
safeguards contained in resolution 1989/64, adopted in May 1989, which
recommends "eliminating the death penalty from persons suffering from
mental retardation or extremely limited mental competence". Only eight US
states prohibit the execution of the mentally retarded.
- risk of executing the innocent: Current legal safeguards to prevent and
remedy errors in capital cases are inadequate to ensure that innocent
people will not be sentenced to death or executed. In October 1993 a
Congressional report by the House Subcommittee on Civil and Constitutional
Rights listed 48 condemned men who had been freed from death row since
1972. The report blamed inadequate legal safeguards to prevent wrongful
executions and listed numerous inherent flaws in the criminal justice
system, including racial prejudice, official misconduct, shoddy legal
representation, inadequate post-trial review of innocence claims and the
politicization of the clemency process. The report concluded: "Judging by
past experience, a substantial number of death row inmates are indeed
innocent, and there is a high risk that some of them will be executed."
Several prisoners have been executed, despite doubts about the
evidence on which they were convicted. They include Edward Earl Johnson,
executed in Mississippi in May 1987 for the murder of a white police
officer. Johnson, aged 18 at the time of his arrest, had been rounded up
with other black men in the area, and signed a confession after being held
in custody without a lawyer and allegedly threatened with shooting by
police. The only eye-witness to the killing gave a description of the
killer that did not match Johnson's. She initially said that Johnson was
not the killer, only changing her testimony after learning that he had made
a confession (which he recanted when brought before the courts). A lawyer
who took over his case in the last days before his execution found many
legal errors in the case which were too late to bring before the courts and
Johnson went to the gas chamber proclaiming his innocence.*9
- executive clemency: There is a lack of proper clemency review in some
states, particularly in Texas. Although Texas has executed more prisoners
than any other state (more than 80 between 1982 and February 1995), the
Board of Pardons and Paroles has convened clemency hearings only very
rarely and has not recommended clemency in any case since 1982, despite the
presence of strong mitigating circumstances in some cases. Recent research
suggests that executive clemency was granted much more frequently in the
USA before 1972, including in cases of the mentally ill. The lack of
effective provision for clemency in some states is contrary to Article 6(4)
of the ICCPR.
In an Open Letter to President Clinton in January 1994, Amnesty
International called on the US Government to recognize its constitutional
responsibility for ensuring equal protection of the law to all US citizens
by establishing a Presidential Commission on the death penalty, with a
moratorium on all executions until the Commission reported its findings.
Eleven areas of particular concern were cited in the 10,000 word letter,
including the points
referred to above. Amnesty International has received no substantive
response to this letter. The organization continues to campaign for a
commission of inquiry, as well as for the commutation of all death
sentences.*10
TORTURE AND ILL-TREATMENT IN POLICE CUSTODY
Over the past few years Amnesty International has received and investigated
numerous complaints of ill-treatment of suspects by police in the USA. Many
complaints concern excessive force by patrol officers during the course of
arrests, traffic stops, searches or at the end of police pursuits. There
have also been allegations of torture or ill-treatment of suspects held in
police stations or jails. The majority of complaints involve physical
brutality such as beatings, sometimes while suspects are already
restrained, and sometimes accompanied by additional force through the use
of tasers, stun guns, mace or pepper spray. There have also been disturbing
cases where suspects have died while being held in restraints or positions
which have restricted breathing, as well as reports of unjustified
shootings. In many areas African Americans or members of other racial
minorities appear to be disproportionately the victims of abuse.
The treatment in many cases appears to have violated international
standards, including Article 7 of the ICCPR which states that "No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment". Police actions appear also to have violated standards set out
in the UN Code of Conduct for Law Enforcement Officials and the Basic
Principles on the Use of Force and Firearms. These require that law
enforcement officers should use force and firearms with restraint and only
as a last resort when non-violent measures have failed or would clearly be
inappropriate, and that the amount of force must be proportionate to the
threat encountered.
While it is difficult to gauge the extent of police brutality in the
USA, the evidence suggests that it is widespread and persistent in some
areas and that not enough is being done to prevent it.*11 Each year US city
and county authorities pay out millions of dollars in damages to the
victims of alleged police abuse. However, although there are penalties
under both state and federal law for officials who use excessive force or
otherwise violate civil rights, police officers have rarely been criminally
prosecuted for such offences. Many US police departments have internal
guidelines governing the use of force which are similar to those contained
under international standards. However, in some departments the
investigation, monitoring and disciplining of officers accused of ill-
treatment or excessive force has been shown to be inadequate. Some examples
are given below.
- Los Angeles: In June 1992 Amnesty International published a report USA:
Torture, ill-treatment and excessive force by police in Los Angeles,
California. The report described abuses by the Los Angeles Police
Department (LAPD) - which was already under scrutiny following the March
1991 video-taped beating by officers of black motorist Rodney King - and
the Los Angeles Sheriff's Department (LASD), which is the second largest
police force in Los Angeles County. The report suggested that members of
the LAPD and LASD regularly resorted to excessive force, particularly in
black or latino neighbourhoods, and that this had gone unchecked for many
years. It described more than 30 cases of police brutality, unjustified
shootings and the use of police dogs to inflict unwarranted injuries on
suspects. Victims included an unarmed man wanted for a traffic violation
who was blinded in one eye after a beating by three police officers; a
mentally disturbed, handcuffed man who died after being "subdued" by some
20 officers who beat him and jolted him repeatedly with a taser gun;*12 and
an unarmed man shot dead in his car after a car chase. In many cases
officers appeared to have acted with impunity or received only minor
disciplinary sanctions.
Amnesty International's recommendations included incorporating
international standards into police codes of practice and an effective
independent oversight of complaints against the police. Both departments
have since made changes to their complaints procedures and introduced some
other reforms following the recommendations of independent local
inquiries.*13 However, Amnesty International has continued to receive some
complaints of ill-treatment and unjustified shootings (see, for example,
the case of Michael Bryant and the section on police shootings, below).
- Chicago: In 1990 Amnesty International published a report describing
allegations that officers attached to the Area 2 police station in Chicago,
Illinois, had systematically tortured or otherwise ill-treated criminal
suspects in the 1970s and 1980s. Most of the alleged victims were black.
The allegations had come to light during a civil lawsuit brought in 1989 by
Andrew Wilson, one of the victims who alleged that, during police
interrogation, he was kicked and beaten, burned against a radiator, had a
plastic bag placed over his head and was subjected to electric shocks.*14 A
doctor who examined him in Cook County Jail a day after the alleged ill-
treatment testified to seeing burn marks on his chest, thigh and face and
numerous other injuries consistent with his allegations. The Chicago Police
Department's Office of Professional Standards (OPS), which had dismissed
his complaint when it was initially filed, subsequently reinvestigated the
case and recommended dismissal of three officers. A further OPS inquiry
also found more than 50 other cases in which suspects had made similar
allegations while being held at the Area 2 police station, some of whom had
subsequently been awarded damages in civil actions. In 1992, the division's
commander was dismissed, but two other officers were reinstated.
Further allegations of ill-treatment surfaced in 1991 at the Area 3
station in Chicago when a 13-year-old African American boy, Marcus Wiggins,
alleged that he was threatened, beaten and subjected to electric shocks*15
while being held for questioning following a gang-related shooting. He
signed a confession which was later thrown out by a juvenile court on the
grounds that it was coerced. The state has appealed that decision and the
case is still before the courts. According to his lawyer, Marcus Wiggins
still suffers from post-traumatic stress disorder as a result of the
treatment he received in police custody. The case is currently under
investigation by the OPS and a civil action is also pending.
- New York: In July 1994 a commission of inquiry reporting on corruption in
the New York City Police Department (NYPD), the Mollen Commission, found
serious corruption among officers in several high-crime precincts, whose
activities included protecting or assisting drug dealers as well as direct
involvement in drug trafficking and robberies. The commission found a
direct link between corruption and brutality, stating in its report that
"Police brutality seemed to occur ... wherever we uncovered corruption".
The commission found that the department had failed to monitor or
discipline officers accused of brutality and that a "code of silence" among
officers had also hampered the investigation of abuses.
There had been concern about brutality within the NYPD for years
before the Mollen Commission's inquiry. In 1983 a black teenager arrested
for spraying graffiti in a subway died as a result of what prosecutors
described as a brutal beating by police; six officers charged in connection
with the death were later acquitted by a jury after they denied that
excessive force was used. In another incident in February 1991 Frederico
Pereira, an unarmed latino youth, died during a struggle with five police
officers who pulled him from a stolen car in which he was sleeping and
placed him face-down with his wrists and ankles bound behind him in a
"hogtied" position. A grand jury charged all five officers with murder but
charges against four of them were later dropped; the fifth officer was
later acquitted of a reduced charge of manslaughter in a non-jury trial.
Steps have been taken during the past two years to improve the
investigation and monitoring of complaints against the NYPD.*16 However,
reports of excessive force have continued, and at least three other
suspects have died in police custody under disputed circumstances since May
1993. They include Ernest Sayon, of Liberian origin, who died in April 1994
during his arrest by three NYPD police officers investigating drugs
offences. The city Medical Examiner found the cause of death to be
"asphyxia by compression of chest and neck while [he was] rear-handcuffed
and prone on the ground immediately following a struggle in which he
sustained blunt impacts to his head and trunk". A grand jury subsequently
voted not to file any criminal charges against the officers involved. In
December 1994 Anthony Baez died from asphyxia during an altercation with
six NYPD officers after his football had accidentally hit two parked patrol
cars. One of the officers involved had eleven previous unsubstantiated
complaints of excessive force filed against him. At the time of writing
Anthony Baez' death was still under investigation by the Bronx District
Attorney (DA). Amnesty International has urged the authorities to make it
clear that torture and cruel, inhuman or degrading treatment by NYPD
officers will not be tolerated and to bring those responsible for abuses to
justice.
There have been serious incidents of police ill-treatment and
excessive force, often toward racial minorities, in other major US cities
also, including Miami, Florida, where there have been three outbreaks of
civil unrest in the past 15 years following police beatings or shootings of
black suspects, and Detroit, Michigan, where two white police officers were
convicted of murder for the fatal beating of a black motorist in November
1992.
In December 1994 nine police officers from New Orleans, Louisiana,
were indicted by a federal grand jury on drugs and weapons charges after an
FBI investigation into widespread corruption in the police department. One
of the officers was also charged with having ordered the contract killing
of a woman who had filed a complaint of brutality against him; she was
found murdered in the street a few days after filing the complaint in
October 1994. Although efforts are reportedly being made to reform the New
Orleans Police Department, it has long been notorious for complaints of
brutality, with several disputed deaths in custody.
Deaths in police custody from use of restraints
There have also been numerous deaths in police custody in the USA resulting
from the practice of placing suspects face-down in restraints, usually when
hogtied, as illustrated by several cases in New York. Medical experts have
indicated that such practices can severely restrict respiratory movement
and are inherently dangerous, especially where a person is under the
influence of drugs or in a highly agitated state. The procedure can lead to
death from what is known as "positional asphyxia".*17 A study of in-custody
deaths conducted by the San Diego Police Department in 1992 recorded more
than 90 deaths from hogtying across the USA since 1982, but the survey was
not comprehensive and the true figure could be higher. According to
reports, some police departments have now banned the procedure but it is
still used by a number of law enforcement agencies. Amnesty International
believes that the use of restraints in this manner can amount to cruel,
inhuman or degrading treatment.
At least two people died as a result of being hogtied by police in
Los Angeles in 1993. One was Michael Bryant, an unarmed black barber who
was arrested following a car chase in March 1993 and who died after being
shot twice with a taser gun, hit with batons, hogtied and placed face-down
on his stomach in a police car. Although departmental procedures apparently
stipulated that suspects who were hogtied should be placed on their side
(not prone as in Bryant's case), the LAPD informed Amnesty International
that no fault had been found in the officers' actions. At the time of
Michael Bryant's death there had been at least seven other deaths in police
custody in five years in Los Angeles County in which hogtying was found to
be either the cause of death or a contributory factor. The LAPD has since
introduced a device which allows a restrained suspect to be placed in an
upright position.
Amnesty International has raised concern about other cases, including
that of Cristino Hernandez, an immigrant from El Salvador with a history of
mental illness, who died after his arrest by police in Worcester,
Massachusetts in July 1993. An inquest judge found that he had died from
lack of oxygen after police applied pressure to his body and forced his
arms, which were handcuffed behind him, up over the back of his head for
several minutes "in an extremely unnatural position" while he lay face down
on the ground.
There have also been deaths involving other techniques used to subdue
suspects or mentally disturbed individuals. A number of people have died
after being sprayed with pepper
spray (oleoresin capsicum), a cayenne pepper based substance which has been
introduced by many police departments in recent years as a safer
alternative to chemical mace. Although other factors have nearly always
been found to be involved in such deaths, there is concern that pepper
spray can be a contributing factor in some circumstances.
Cristino Hernandez, whose case is cited above, was twice sprayed with
pepper spray before police placed him face-down in restraints, a practice
that has since been criticized as potentially dangerous. Johnny L.
Williams, a severely disturbed prisoner at a jail in New York State, died
in July 1994 during a struggle with sheriff's deputies who held him down
and wrapped a belt round his face after he had several times jumped head-
first off a sink. Although the cause of death was found to be suffocation
through use of restraints, the deputies also sprayed him in the face with
three canisters of pepper spray, which relatives were concerned could have
contributed to his inability to breathe. A Justice Department inquiry into
conditions at the jail (the Public Safety Building in Onondaga County, New
York) found the use of pepper spray in this and other cases to be
excessive. The American Civil Liberties Union (ACLU) of Southern California
is reported to have documented a number of cases of pepper-spray linked
deaths in the state since its use was introduced in 1992. The use of
pepper-spray is being monitored by a number of police departments. Amnesty
International believes that its use should be carefully monitored across
the USA.
Although many police departments have banned use of the chokehold
(the application of pressure to a suspect's neck which cuts off the blood
supply to the brain), Amnesty International has received reports of deaths
from the application of a police chokehold in a number of jurisdictions,
including two cases in Cleveland, Ohio in 1992.
Police Shootings
Article 6(i) of the ICCPR states that the right to life shall be protected
by law and that "No one shall be arbitrarily deprived of his life". The
Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials provide that firearms may be used only in self defence or the
defence of others against the "imminent threat of death or serious injury"
and "only when less extreme means are insufficient to achieve these
objectives". US state and federal law and the US Constitution also provide
that no one shall be deprived of life without due process of law. Most US
police departments also have guidelines which conform broadly to
international standards by limiting deadly force to situations in which
there is an imminent threat of death or serious injury.
Despite this, there have been disturbing cases in which US police
officers have shot and killed or injured suspects in circumstances which
appeared to violate international standards. Officers have rarely been
prosecuted in such cases. Although it can be difficult to obtain
information on the outcome of police internal investigations, it appears
that in some departments officers who have violated police guidelines have
received only minor disciplinary sanctions.
In its 1992 report on police ill-treatment in Los Angeles, Amnesty
International described a number of cases in LAPD and LASD officers shot
suspects who apparently offered no immediate threat of deadly resistance.
They included some cases where officers continued to fire after the suspect
was apparently disabled. The victims included an unarmed 21-year-old Korean
man who was shot dead in his car after a car chase; he received nine
gunshots to the back and back of the neck after four sheriff's deputies
opened fire on him simultaneously after he had driven into a cul-de-sac.
None of the officers involved was disciplined for their actions, although
the county later paid the family $1,000,000 in an out-of-court settlement
of a civil lawsuit. In another case an officer fired all rounds from his
gun at an unarmed man who had been involved in a domestic dispute; he then
reloaded the gun and fired four more times, killing him. The report also
cited studies of police shootings, including a 1990 study by the Los
Angeles Daily News which found there were 56 questionable shootings by LASD
between January 1985 and August 1990, involving mainly unarmed suspects,
none of which had resulted in any prosecutions.
Since its report was published, Amnesty International has received
further reports of questionable shootings by police in Los Angeles,
including the LAPD which continues to have one of the highest ratios of
officer-involved shootings of any police force in the USA. Amnesty
International called for an inquiry into the fatal shooting by an LAPD
officer of an unarmed black truck driver, John Daniels, on 1 July 1992. The
officer involved in the shooting was later charged with murder - the first
law enforcement officer in Los Angeles County in more than ten years to be
charged with murder for an on-duty shooting. All charges were eventually
dropped after two trials in which the jury failed to agree on a verdict.
Amnesty International also asked for information about the outcome of
investigations into several other cases, including the case of Sonji Danese
Taylor, a 27-year-old black woman who died after being shot nine times,
including seven times in the back, by two white LAPD officers in December
1993. The shooting took place on the roof of a hospital where, according to
police accounts, she had been threatening her three-year-old son with a
butcher knife and shouting "For the love of Jesus!". According to press
reports, officers used pepper spray to subdue Sonji Taylor, who then
released her son. Police said they fired after she lunged at officers with
the knife. However, questions have been raised about how Sonji Taylor came
to be shot seven times in the back.
Amnesty International also sought information on the case of Efrian
Lopez, an mentally disturbed 18-year-old who was shot dead by an LAPD
officer in November 1992, as he ran towards two officers swinging a
broomstick; Efrian Lopez' mother had flagged down a police car saying that
her son was acting "crazy"; as the boy ran toward the officers one of them
fired his gun reportedly discharging all rounds into Lopez' body.
Chief Williams of the LAPD declined to provide Amnesty International
with any information on police internal inquiries in the above cases, on
the ground that "personnel issues are confidential by law and cannot be
released to the public". Amnesty International continues to seek
information on whether any officers were disciplined.
There has been concern about police shootings in other police
departments as well.
More than a dozen black youths, most of them teenagers, were shot dead or
injured by (mainly white) police officers in disputed circumstances in New
Jersey between 1990 and 1992. They include Phillip Pannell, an unarmed 16-
year-old fatally shot in the back while running away from police officers
from Teaneck, New Jersey, in April 1990. The officer was acquitted on a
state charge of reckless manslaughter by an all-white jury in 1992. The US
Justice Department reviewed the case and in 1994 decided not to file
federal civil rights charges against the officer involved. In another case
in Hillside, New Jersey, two people (including a 16-year-old pregnant girl)
were shot dead and several others wounded when police fired 43 shots into a
stolen van driven by teenage joy-riders after a high-speed car chase. No
officers were charged in that case.
There have been a number of questionable shootings by NYPD police.
They include at least two cases in which black plain clothes officers have
been shot by white police officers, apparently mistaking them for
criminals. In March 1995 an officer was charged with first-degree assault
for "recklessly shooting" and wounding black undercover police officer
Desmond Robinson on a subway platform in August 1994; Robinson was
reportedly shot twice while he was standing and at least twice more after
he had fallen to the platform and lost control of his own gun.
In February 1995 Amnesty International wrote to the NYPD to express
concern about the fatal shooting of an apparently unarmed man in Brooklyn,
in January 1995. Police statements after the shooting said that the man was
shot in the chest after turning to face the officer in a "gun stance";
however, the city Medical Examiner subsequently reported that he was shot
in the back. Amnesty International also asked for information about the
fatal shooting of two suspects after a car chase in December 1994; both men
were reportedly shot through the head by an NYPD officer after the car had
come to a halt. Both incidents were still under investigation by the city
authorities at the time of writing.
Allegations of excessive force by federal law enforcement officials
Although most firearms incidents involve state police (who are responsible
for most law enforcement in the various states), there have been incidents
in which federal officials have been accused of using excessive force.
An internal Justice Department study made public in December 1994 was
highly critical of the actions of federal agents who in August 1992 laid
siege to the house of an alleged white separatist, Randy Weaver, who was
wanted for federal firearms violations. During the siege, agents shot dead
Weaver's 14--year-old son and his wife who was standing in a doorway
holding their 10-month-old baby. The Justice Department study prepared by
the Office of Special Responsibility (the US Justice Department's internal
disciplinary unit) found that senior officials had violated the
Constitution and federal policies which stipulated that officials may not
shoot unless their lives or the lives of others were in direct jeopardy.
The study also found that federal officials had misjudged the threat posed
by Weaver and had adopted an aggressive assault plan without negotiations.
However, the Justice Department declined to prosecute any officers involved
for civil rights violations, and the agent with overall responsibility for
the operation was reportedly promoted in December 1994. After the report
became public, the FBI said that the possibility of disciplinary action
against officers was still under review.*18
Concern has also been expressed about the tactics used by federal
agents during the handling of a 51-day stand-off in 1993 between federal
agents and members of the Branch Davidians, a religious community in Waco,
Texas, who were believed to have stockpiled weapons. The standoff followed
an initial assault on the compound in which six Branch Davidians and four
federal agents were killed. In a final assault on the compound, federal
agents rammed the compound's walls with tanks and pumped CS gas and liquid
gas into the compound for three and a half hours. The siege finally ended
in fires (allegedly started by some cult members during the CS gas attacks)
in which 75 Branch Davidians died, 24 of them children and infants.
Inquiries by the Treasury and Justice Department were critical of the
initial raid on the compound but cleared the FBI of any blame for events
during the siege and the final assault. However, Amnesty International
wrote to the Justice Department expressing concern about the use of CS gas,
which it said could be lethal if used in such massive quantities in
occupied areas, particularly where there were elderly people or young
children. Amnesty International called for official inquiries to examine
whether the action taken by law enforcement officials was in line with
international standards, including the Code of Conduct for Law Enforcement
Officials and the UN Basic Principles on the Use of Force and Firearms. The
Government did not reply to the concerns raised.
ILL-TREATMENT IN PRISONS AND JAILS
Amnesty International has raised concerns about allegations of torture and
ill-treatment in prisons and jails in many US states and the federal
system. These concerns have included allegations of direct physical abuse
such as beatings; the punitive use of restraints; the sexual abuse of
prisoners in at least one prison; and denial of adequate medical or
psychiatric care.
Conditions in a number of state prisons improved during the 1970s as
a result of litigation in the federal courts and court orders which
required states to reduce overcrowding and set certain minimum standards
for treatment of prisoners. However, the massive increase in the US prison
population in the last few years appears to have reversed this trend and
led to an increase in the incidence of ill-treatment in some states. Due to
the imposition of mandatory minimum prison sentences, increased
incarceration for drugs offences and other measures, the prison population
has more than trebled in the past twenty years (doubling in some states
during the 1990s) and the total US prison and jail population currently
exceeds 1,400,000.*19
Prison litigation remains the most common remedy for challenging
prison conditions and seeking relief for ill-treatment of inmates by
guards. Rulings in court cases over the past decade have documented
numerous incidents of abuse in institutions across the USA, many involving
serious staff assaults on inmates. Some judgments have found that prison
authorities have failed to take adequate measures to protect inmates from
attacks by other prisoners.*20
Some recent examples of ill-treatment in prisons are given below.
Ill-treatment in Texas prisons
In December 1994, it was reported that the Texas prison authorities were
investigating allegations that some 30 prison guards had systematically
ill-treated inmates in four Texas prisons. An internal prison memorandum,
the contents of which were revealed in the Houston Chronicle and the Dallas
Morning News on 20 and 21 December 1994, reportedly stated that cases of
excessive force had quadrupled in the past year, and that this was partly
due to the doubling of the state's prison population in two years from
50,000 to 100,000 prisoners, and the recruitment of young, inexperienced
guards. The allegations, based on press reports and other sources, include
the following:
- In McConnell Unit, an organized gang of guards allegedly targeted inmates
for abuse. Two guards were charged in December 1994 with aggravated assault
and tampering with witnesses, for allegedly kicking and punching an
prisoner in the head in November 1994, and then getting other guards to
falsify reports about the incident.
- Michael McCoy, a prisoner in Terrell Unit, was reportedly beaten to
death by guards on 7 November 1994. Amnesty International has received a
letter from prisoners alleging that two guards entered McCoy's cell and
kicked him to death in retaliation for his having spat at a female guard
earlier in the day; no-one intervened and his body was reportedly not found
until the next shift of guards came on duty. Two guards were subsequently
charged with his murder and their trial was still pending at the time of
writing. Four other guards were charged with assaulting another prisoner in
the same unit on the same date.
According to reports in the Texas press, three other prisoners in
the same wing of Terrell Unit were murdered by other inmates between July
and October 1994 and prison guards took no action to prevent the attacks.
One of the prisoners, Randy Payne, died on 12 August 1994 allegedly after
repeated attacks on him by two inmate gangs after he had refused to pay
protection money; according to some reports, he was fighting for his life
all day while guards stood by and did nothing. No officers were charged as
a result of these incidents although the prisoner deaths are now being
investigated. Terrell Unit is a modern unit which opened in late 1993 and
cells and other areas are equipped with electronic listening devices
operated by guards; however, according to reports, these devices were often
not switched on.
The other incidents referred to in the Texas prison memorandum, some
of which were also under investigation by the US Justice Department, took
place in Michael Unit and Robertson Unit. The Texas authorities reported
that the cases of ill-treatment in Texas prisons were "isolated" and that
strong measures were being taken in response. However, Amnesty
International has received allegations of ill-treatment from prisoners in
Texas over a number of years, suggesting that this is not a recent, or
isolated, problem. In the late 1980s the organization wrote to the Texas
authorities about allegations of guard assaults on prisoners during
separate incidents in Michael Unit, one of the prisons cited above; in the
cases raised guards were alleged to have beaten prisoners who were
handcuffed and in leg-irons. In their reply, the prison authorities had
denied that ill-treatment had taken place but provided no information on
the incidents in question.
Amnesty International is currently investigating allegations that
prisoners in another Texas prison, Ramsey 1 Unit, have died through lack of
medical care and that ill and disabled prisoners are made to do hard labour
in dangerous conditions.
Pelican Bay State Prison, California
In January 1995 a federal judge issued a 345-page opinion condemning what
he described as a pattern of brutality and neglect at Pelican Bay State
Prison, California, a high security prison complex which opened in 1989.
The ruling called upon the state to discontinue practices which included
repeated assaults on prisoners; a pattern of punitive violence toward
prisoners during "cell extractions" (the forcible removal of prisoners from
cells); the punitive shackling of inmates to toilets or other cell
fixtures; and grossly inadequate medical and mental health care. The ruling
also found that guards resorted to firearms too quickly and in
circumstances that did not warrant the use of lethal force.*21 The ruling
referred to a number of individual cases including the case of Vaughn
Dortch, a mentally disturbed prisoner who suffered third-degree burns over
one third of his body after guards forced him, handcuffed behind his back,
into a bath of scalding water.*22 Another prisoner, Arturo Castillo, who
refused to hand over his food tray, had a gas gun*23 fired into his cell,
was knocked unconscious and beaten so severely that a piece of his scalp
became detached. The judge also found that guards were rarely disciplined
for excessive force and that their accounts of incidents were routinely
accepted at face value, ignoring any other evidence.
The judge also ordered the state to cease holding mentally ill
prisoners in the prison's Security Housing Unit (SHU), a super-maximum
security unit in Pelican Bay, on the ground that the conditions could
exacerbated their condition (more details about this unit are given below).
The Pelican Bay lawsuit was brought by private attorneys for the
prisoners under a federal civil rights statute which allows prisoners to
sue state officials directly in the federal courts for alleged
constitutional violations. The judge said in his ruling that, while the
authorities had made some changes during the 3-year litigation, he was not
satisfied that they were committed to ensuring that abuses would not
continue. He therefore appointed a special monitor to oversee
implementation of the court order.
Amnesty International had written to the California Department of
Corrections in 1992 (shortly after the litigation was started), urging a
review of conditions in Pelican Bay and expressing concern about the ill-
treatment of Vaughn Dortch and reports of the beatings and punitive
shackling of prisoners, as well as about conditions in SHU. The Warden of
Pelican Bay replied in November 1992, stating that AI's information was
"incorrect and grossly exaggerated".
Other examples of ill-treatment in jails and prisons
- In February 1995 Amnesty International called on the Florida authorities
to hold a full and impartial inquiry into alleged ill-treatment of three
prisoners at the Dade County Jail, Miami, Florida. Jose Mesidor died from
pneumonia in the psychiatric wing of the jail in June 1993 after being left
naked in a bare cell and allegedly physically assaulted by correctional
staff. Eladio Vega spent 16 days in hospital in May 1993 after an alleged
beating by guards. Frank Dennis was reportedly beaten by correctional staff
in August 1994; four guards who witnessed the incident made statements
complaining about the ill-treatment.
- In July 1994 a series of articles in the Knoxville News-Sentinel, a
Tennessee newspaper, reported that inmates of the Knox County Jail,
Tennessee, had been left handcuffed spread-eagled to bars for periods of an
hour or more, with their feet barely touching the ground. The paper
published two photographs of prisoners held in such positions in 1993. The
newspaper also claimed that other inmates were punished by being placed in
a special restraining chair in the jail and forced to wear a helmet with
the visor blacked out, which was then struck by prison guards using fists,
flashlights and other objects. Amnesty International wrote to the
authorities stating that it was concerned that such treatment, if
confirmed, constituted cruel, inhuman or degrading treatment, very possibly
amounting to torture. Amnesty International also pointed out that such
treatment was also in violation of the UN Standard Minimum Rules for the
Treatment of Prisons (UNSMR) which state under Article 33 that:
"Instruments of restraint ... shall never be applied as punishment".
Inquiries into the incidents were reportedly being conducted by the Knox
County Sheriff's Department and the FBI at the end of 1994.
- In 1993 the US Justice Department opened an investigation into
allegations of widespread sexual abuse by guards of inmates at the Georgia
Women's Correctional Institution. The abuses, which had reportedly been
going on for some years until they were exposed in a lawsuit in 1992,
included coercion of inmates into having sex with guards and forcing
inmates into guard-run prostitution rings. At least 12 employees were also
charged with criminal offences under state law and others were dismissed or
transferred. Amnesty International wrote to the authorities drawing
attention to guidelines and standards designed to protect female inmates
from potential abuse, including Article 53 of the UNSMR which provides that
male employees shall not enter parts of an institution set aside for women
unless accompanied by a female staff member.*24
- In April 1993 a Boston based medical organization, Physicians for Human
Rights (PHR), published a report on the abusive shackling of inmates at the
Onondaga County Public Safety Building (county jail) in Syracuse, New York.
The PHR had investigated the jail and found that prisoners had been
restrained for hours with their ankles secured in steel shackles tied to
bed frames, with their wrists handcuffed to cell bars above their heads so
that their buttocks were barely touching the bed, with no drink, food or
use of the toilet. PHR found that the use of metal four-point restraints in
this manner had caused musculo-skeletal injuries, pain, numbness and nerve
damage and was a form of cruel, inhuman or degrading treatment which in
some cases might constitute torture. Changes in the use of restraints at
the jail were later implemented. However, a subsequent investigation by the
US Justice Department into conditions at the Onondaga jail found that some
restraints were still being used improperly, including the placing of
emergency restraint belts around a prisoner's head, nose and mouth.
The Department also found widespread guard brutality, a racially hostile
environment, "grossly inadequate" medical care and filthy conditions, as
well as the abusive use by guards of pepper spray to restrain inmates. The
Justice Department's report, published in October 1994, ordered further
changes to the running of the jail.
- In 1992 Amnesty International wrote to the authorities about conditions
in the Maximum Control Complex (MCC) in Westville, Indiana, a maximum
security prison facility which opened in April 1991 to house prisoners with
serious disciplinary problems. The 200 prisoners in the unit were held in
conditions of prolonged isolation and sensory deprivation, in single cells
painted stark white, with the lights kept on for 24 hours a day. Exercise
was taken alone for 50 minutes every 48 hours. Prisoners were not allowed
to wear watches or ask the time; were denied access to radio or television
for at least the first six months of confinement; and had only very limited
access to reading materials. Visits were also severely restricted, and
there were no educational, training or vocational programs. Amnesty
International was concerned that such conditions, which were apparently
imposed on a permanent basis, amounted to cruel, inhuman or degrading
treatment. Amnesty International was also concerned by reports that
prisoners were severely punished for even minor infractions by being placed
in waist-chains and leg shackles or spread-eagled to beds for hours at a
time. The punitive use of restraints and other conditions in MCC violated
the UNSMR.
In January 1994 the authorities agreed to implement some changes to
conditions in
MCC following a lawsuit filed by the prisoners.*25 However, prisoners
remain confined to their cells for all but six hours a week and Amnesty
International has continued to receive complaints about conditions in the
unit.
- An inquiry conducted by the National Institute of Corrections in
December 1991 found that prisoners in Montana State Penitentiary had been
ill-treated in the aftermath of a serious riot in the prison in September
1991. Prisoners were reportedly punched, kicked and hit with batons while
naked and handcuffed, and were made to lie face-down on the ground for five
to seven hours while naked with their hands cuffed behind their backs; six
inmates whom the prison authorities suspected of planning a further
disturbance were stripped naked and left hogtied on the floor of their
cells for 23-24 hours in October 1991. The inquiry team found that serious
injuries had resulted from the hogtying; and that the measures had been
imposed for punitive rather than security reasons. The Justice Department
subsequently investigated the incident but declined to prosecute any
officials for civil rights violations after concluding that "there were no
unjustified or malicious acts against the prisoners".*26 Amnesty
International wrote to the Justice Department saying that, while it was not
in a position to comment on the legal grounds for deciding against
prosecutions in the case, it was disturbed by what appeared the Justice
Department's general endorsement of the actions taken by guards.
Conditions in super-maximum security units
There has been a growing trend in the USA in recent years toward building
super-maximum security institutions, often special units within maximum
security prisons. While prisoners in normal maximum security prisons spend
around 13 hours a day outside their cells, prisoners in these super-maximum
units are typically confined for 23 hours a day in sealed, sometimes
windowless cells, with no work, training or other programs. The facilities
are designed to minimize contact between staff and inmates and prisoners
are subjected to regimes of extreme social and often sensory deprivation.
Such facilities are reportedly based on the federal prison in Marion,
Illinois, which since 1983 has operated a regime in which prisoners are
placed in permanent "lockdown" (confinement to cells, with no association
or prison programs). At least 36 states were reported to have constructed
super-maximum units by 1994, some of which imposed conditions more severe
than in Marion.
The prison authorities have defended such units as being necessary to
contain violent, disruptive prisoners. However, Amnesty International
believes that conditions in some units violate international standards for
the humane treatment of prisoners, and exceed what is necessary for
security purposes. It has expressed concern about conditions in several
super-maximum facilities in recent years, including MCC, Westville (cited
above); Marion federal penitentiary;*27 and H-Unit in Oklahoma, described
in more detail below.
H-Unit, Oklahoma
In May 1994 Amnesty International published a report on H-Unit in
Oklahoma, a super-maximum facility which opened in November 1991 as part of
Oklahoma State Penitentiary at McAlester. Amnesty International concluded
that conditions under which death row prisoners were confined in the unit
amounted to "cruel, inhuman or degrading treatment" in violation of
international standards, including Articles 7 and 10 of the ICCPR. The
report, USA: Conditions for death row prisoners in H-Unit, Oklahoma State
Penitentiary, was based on the findings of an Amnesty International
delegation which visited the prison in March 1994.
Prisoners in the unit (who include prisoners in administrative or
disciplinary segregation as well as the state's death row population) are
confined for 23 or 24 hours a day in windowless, sealed, concrete cells,
with virtually no natural light or fresh air. Up to four prisoners at a
time may exercise for one hour a day on weekdays in a bare concrete yard
with 18 foot high solid walls giving no view of the outside. The unit is
designed to minimize contact between inmates and guards. Correctional
officers rarely patrol the cell area and their main communication with
prisoners is through an intercom in each cell, controlled by guards. No
work, recreational or vocational programs are provided.
Amnesty International's conclusion that conditions amounted to cruel,
inhuman or degrading treatment was based on a combination of factors,
including the sparse physical conditions inside the cells and the length of
time confined to them; the poverty of the exercise facilities; the
isolation and lack of programs; and the fact that death row prisoners may
be confined in such conditions for years without regard to their individual
behaviour. Some of the conditions in H-Unit, such as the lack of natural
light or fresh air in the cells, are in direct violation of the UNSMR.
Other concerns highlighted in the report included the stresses and
dangers from the practice of confining two prisoners together in such
small, enclosed cells, and the "institutionalized indifference" to
prisoners' legitimate needs created by the non-contact nature of the
facility.*28 Some prisoners were reported to have become seriously mentally
ill while on H-Unit but to receive little or no psychiatric care.
Amnesty International made a number of detailed recommendations for
improving conditions in H-Unit, including a recommendation that death row
prisoners should have their custody status reviewed so that those not
presenting an institutional security risk could have more association with
other prisoners and be allowed to participate in prison programs. Amnesty
International also recommended that no prisoners should be confined long-
term under the conditions prevailing in H-Unit, which the organization
believed could be harmful to prisoners' physical and mental health. None of
its recommendations has been acted on.
American Correctional Association and federal standards
As well as violating international standards, Amnesty International found
that conditions in H-Unit also breached standards laid down by the American
Correctional Association (ACA), a private agency, whose members are serving
or retired US correctional staff, that administers a voluntary
accreditation scheme for prisons in the USA and Canada. The size of the
cells in H-Unit and the lack of cell furniture both violate ACA standards
for example. Amnesty International also found that some ACA standards were
themselves deficient, in particular a standard which allowed for a light
source some distance away from cells, which the organization's expert
delegate described as "extraordinary if that were regarded as acceptable
for a new building". After receiving a copy of Amnesty International's
report, the ACA deferred re-accrediting OSP and it undertook a further
inspection of H-Unit in October 1994. Although this inspection confirmed
Amnesty International's findings that aspects of H-Unit did not meet ACA
standards, the auditor concluded that "Oklahoma State Penitentiary ... is
operating under United States law and following the requirements for
decent, humane care of prisoners". The ACA subsequently reaccredited OSP
in January 1995 without any changes having been made to the operation of H-
Unit.*29
Amnesty International sent its report on H-Unit to the Federal Bureau
of Prisons (BOP) and the US Justice Department, urging them to take steps
to ensure that conditions in other prisons did not emulate those in H-Unit.
The BOP replied stating that there are
"... limits to the ability of Federal agencies in the United States to
influence policies and procedures in individual states". The BOP also said
that "The Bureau's position is that there are situations which fully
justify the operation of a highly structured facility such as the one you
reference".
Since then, the government has opened a federal super-maximum prison
in Florence, Colorado, which incorporates some of the features applying in
H-Unit. Prisoners in the high-security ADX facility at Florence, which
opened in November 1994, are isolated for 22 hours a day in single,
hermetically sealed, concrete cells, each with a narrow window looking out
onto the enclosed concrete exercise yard. Prisoners never see grass, earth
or any part of the natural world; contact with guards and other inmates is
extremely limited and no work, training or vocational programs are
provided.
SHU, Pelican Bay
Some other super-maximum security units in the USA operate under similar or
even more severe conditions than H-Unit. The recent court decision on
Pelican Bay, California, (see above) described conditions in the prison's
Special Housing Unit (SHU) in which prisoners are confined (either alone or
with one other prisoner) for 22 and a half hours a day in sealed,
windowless cells with bare, white, concrete walls. Each cell door is made
of heavy gauge perforated metal which, the court found, "significantly
blocks vision and light". There are no programs or prison work and
interaction with correctional staff is kept to a minimum. Each prisoner
exercises alone, or with their cell mate if they have one, in a bare
concrete yard with solid 20 foot high walls; no recreational equipment is
provided. The district court observed that:
"The overall effect of the SHU is one of stark sterility and
unremitting monotony. Inmates can spend years without ever seeing any
aspect of the outside world except for a small patch of sky. One
inmate fairly described the SHU as being `like a space capsule where
one is shot into space and left in isolation'."*30
Although half the 1,500 prisoners in SHU are there for set terms as
punishment for disciplinary offences, the rest are assigned to the unit
indefinitely - which could be for the full length of their sentence (from
10 years to life). These are prisoners whom the California Department of
Corrections has determined are members of prison gangs or who have been
placed in administrative segregation for general disruptive behaviour.*31
During the lawsuit, testimony was presented to show that a
significant number of prisoners in SHU were suffering from severe mental
illness, which had been caused or exacerbated by their confinement on the
unit. In its ruling the court said it was satisfied that "the severe
reduction in environmental stimulation and social isolation can have
serious psychiatric consequences for some people" and ordered the removal
of mentally ill prisoners from SHU. The court also conceded that conditions
for other inmates in SHU appeared "tenuously related to legitimate
penological needs" and "may press the outer bounds of what most humans can
psychologically tolerate". However, the judgment fell short of ruling that
these conditions violated the US Constitution, noting that the courts had
placed a narrow definition on what could be considered "cruel and unusual"
in terms of general prison conditions, and that the authorities had wide
discretion in deciding how to confine prisoners requiring maximum security
custody. The ruling left open, however, the question as to whether
conditions would reach an unconstitutional level if inmates were confined
there for many years.
Amnesty International is concerned that there is no independent
monitoring system for prisoners in the USA. The only nationwide standard-
setting body, the ACA, is closely affiliated to the corrections
departments. Amnesty International is further concerned that the federal
BOP has itself justified the existence of such units as described above.
Although the US Government has made a reservation to Article 7 of the
ICCPR, it has entered no reservation to Article 10 of the Covenant which
provides inter alia that "All persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the
human person"; and that "The penitentiary system shall comprise treatment
of prisoners the essential aim of which shall be their reformation and
social rehabilitation". These provisions appear to be lacking in both the
design and rationale of some super-maximum security units in the USA.
Amnesty International urges the federal authorities to take stronger steps
to ensure that conditions, both in state and federal institutions, do not
violate international standards, and that minimum standards are provided
for the humane treatment of all prisoners, including those in super-maximum
security units.
REMEDIES FOR TORTURE AND ILL-TREATMENT UNDER US LAW
The Human Rights Committee in its General Comments on Article 7 of the
ICCPR has noted that:
"...it is not sufficient for the implementation of this Article to
prohibit such treatment or punishment or to make it a crime ...
States must ensure an effective protection through machinery of
control. Complaints about ill-treatment must be investigated
effectively by competent authorities..." (General Comments of 27 July
1982)
Torture is prohibited under US state and federal law, and the Eighth
Amendment to the US Constitution contains a general prohibition against the
imposition of "cruel and unusual punishment". Police or prison officials
accused of excessive force may be prosecuted for various criminal offences
ranging from misdemeanour assault to murder; in addition there are specific
penalties for abuses by officials acting under "colour of law". However, in
practice it is relatively rare for police or prison officials to be
criminally prosecuted for ill-treatment.
Even where such prosecutions have taken place, juries often fail to
convict. The "code of silence" among police or prison officers is likely to
account for some of the difficulties in both bringing prosecutions and
securing convictions, particularly if there are no independent witnesses.
The US Justice Department may itself bring federal criminal civil
rights charges against state officials who violate the protected rights of
others while acting under "under colour of law". This is provided under
section 242 of Title 18 of the U.S. Code. Although the federal authorities
reportedly investigate several thousand cases annually, only a small
proportion result in prosecutions.*32 Amnesty International has been told
that it would be rare for the federal authorities to prosecute if a
defendant has been acquitted in state court.*33 Also federal rules of
evidence are extremely stringent - with a requirement to prove beyond a
reasonable doubt that the official in question acted with specific intent
to violate a protected right. Cases which may involve other offences under
state law, such as recklessness or negligence, may not be pursued under
federal criminal civil rights statutes.
The most common remedy for alleged abuses by law enforcement
officials is for the victim to bring a civil lawsuit for damages against
the officer or authority responsible. These
actions are usually brought under Title 42, Section 1983 of the United
States Code (U.S.C.), under which individuals may sue state officials
directly in a state or federal court for violations of their civil rights.
Unlike criminal prosecutions where juries must find evidence of abuse
beyond reasonable doubt, damages may be paid in a civil trial based on a
"preponderance of the evidence". Although the authorities do not
necessarily admit liability when agreeing to settle a civil lawsuit,
Amnesty International believes that, in general, they provide an important
indicator of police abuse. However, the system has some limitations as as a
remedy for police abuse. Firstly, the onus is on the victim to initiate
such lawsuits, whereas international standards require allegations of ill-
treatment to be independently investigated whether or not the victim has
filed a complaint. Civil rights lawyers also claim that there are many
cases of alleged abuse in which lawsuits are not pursued, for example cases
where there are no independent witnesses or where injuries are not severe
enough for any award to cover the costs of litigation. Also, while civil
lawsuits may provide a remedy to the individual in the form of compensatory
damages, they may not serve as a deterrent to prevent future abuses, unless
strong disciplinary action is take against officers involved and there is a
change in departmental practice or policy. It has been difficult to bring
lawsuits seeking to prevent an alleged "pattern and practice" of police
abuses, and damages cannot be imposed against a police department unless
the plaintiff can show that his injuries resulted from a municipal "policy"
or "custom" of abuse. It appears also that many police departments do not
take account of civil actions in monitoring or disciplining officers for
abuses.
Amnesty International believes that state authorities should take
stronger steps to ensure that torture and ill-treatment by law enforcement
officials will not be tolerated by fully incorporating international
standards into police and prison codes of practice; by instituting thorough
inquiries into all substantive allegations and making the findings public;
by setting up adequate monitoring systems for ill-treatment and excessive
force; and by taking strong disciplinary action for the abusive use of
force and fire-arms.
Amnesty International also believes that the federal government
should take a more active role in monitoring complaints of excessive force
by state law enforcement agents, and in preventing such abuses, in
accordance with its obligations under international law. The Violent Crime
Control and Law Enforcement Act, which became law in September 1994,
includes a clause requiring the US Attorney General to collect data about
the use of excessive force by law enforcement officers, for research or
statistical purposes. The Act also contains a provision allowing the
federal government to initiate civil actions to seek to eliminate an
alleged "pattern or practice" of abuses by law enforcement officials in any
given jurisdiction. Amnesty International urges the government to ensure
that these important provisions will be put into practice.
remedies for cruel, inhuman or degrading prison conditions
Under the Civil Rights of Institutionalized Persons Act (42 U.S.C. Section
1997), the federal government may institute proceedings to eliminate a
pattern or practice of abuses in any state jail, prison or detention
facility. The act has been used to redress abuses in a number of
institutions in recent years. However, civil lawsuits under Section 1983
remain the main remedy for redressing prison conditions alleged to be
"cruel and unusual" in violation of the US Constitution.*34 Again, the onus
is on the prisoner as alleged victim to initiate such proceedings which can
be lengthy and expensive. The absence of any independent monitoring body
for US prisons may mean that abuses can go unchecked for many years.
The US courts have also placed a narrow interpretation on what
constitute "cruel and unusual" prison conditions. To succeed with a
constitutional claim prisoners must show that the prison authorities acted
with "deliberate indifference" to deprive prisoners of "basic human needs"
such as adequate clothing, shelter, medical care and personal safety.
Conditions which inflict serious mental or physical pain would also be
unconstitutional but here the standard is less clear. The courts have not
ruled that segregation, isolation or the absence of recreational,
vocational or rehabilitative programs are per se unconstitutional; they
have also held that the infliction of some "psychological pain" does not
necessarily violate the Eighth Amendment.*35 This narrow standard allowed
the district court in its ruling on conditions in Pelican Bay to conclude
that, while conditions in SHU "may well hover on the edge of what is
humanly tolerable for those with normal resilience... They do not, however,
violate exacting Eighth Amendment Standards, except for the specific
population subgroups identified in this opinion".*36
In its initial report to the Human Rights Committee in August 1994,
the US Government acknowledged that the extent of US constitutional
provisions are "arguably narrower in some respects than the scope of
article 7" (of the ICCPR).*37 Rather than undertaking a commitment to
ensure that US practice will meet minimum standards under international
treaties, the US issued a reservation to Article 7, stating that it
considered itself bound by the Article only to the extent that it conforms
with the "cruel and unusual" provisions of the US Constitution. Amnesty
International has strongly urged the US Government to withdraw such a
reservation.
OTHER CONCERNS IN THE USA
Prisoners of conscience and fair trials in political cases
The right to freedom of thought and expression is well-established in US
law. Nevertheless, Amnesty International has worked on behalf of prisoners
of conscience in the USA, most recently in 1991-1992 when it campaigned for
the release of more than 30 military personnel imprisoned for their
conscientious objection to the Gulf War.*38
Amnesty International has also investigated cases in which prisoners
convicted of criminal offences in the USA have alleged that they were
"framed" on account of their beliefs or origins or that their trials were
unfair on political grounds. Although the US criminal justice system
contains many procedural safeguards for a fair trial, it has been alleged
in some cases that the prosecuting authorities fabricated evidence or
knowingly introduced perjured testimony, or that they improperly withheld
evidence favourable to the defence. While the facts in such cases have
sometimes been difficult to establish, Amnesty International has raised
concerns about the fairness of proceedings in a number of cases.
In October 1981 Amnesty International published a report calling for
a commission of inquiry into FBI intelligence operations (COINTELPRO) which
it believed had undermined the fairness of trials of several Black Panther
Party (BPP) members and members of the American Indian Movement (AIM) in
the 1970s. The organization continues to investigate the cases of a number
of prisoners who were alleged victims of COINTELPRO and who remain in
prison. It has called, for example, for the retrial or release of Geronimo
ji Jaga Pratt, a former BPP leader in Los Angeles, serving a life prison
sentence for the murder of a woman in 1972, a charge he has always denied.
Evidence which came to light after the trial showed that Pratt had been
targeted for "neutralization" by COINTELPRO and suggested there had been
misconduct by the FBI and state police in the prosecution of the case (see
USA:The case of Elmer "Geronimo" Pratt, AMR 51/27/88 and NWS 11/01/92).
Amnesty International has also raised concerns about the fairness of
the trial of AIM member Leonard Peltier, convicted in 1977 of the murders
of two FBI agents on the Pine Ridge Reservation in 1975. Amnesty
International's concerns include the fact that Leonard Peltier was
extradited from Canada on the basis of affidavits by an alleged eye-witness
to the murders which the FBI later admitted it knew were false. The FBI had
supplied the state authorities with the same witness in another case
involving a leading AIM member; she retracted her testimony in both cases.
Amnesty International has conveyed its concerns to the federal government
which is currently reviewing an application for a pardon in his case (For
further information on Peltier's case see USA: Human Rights and American
Indians, AMR 51/31/92, and Human Rights Violations Against Indigenous
Peoples, AMR 01/08/92.)
Other cases of concern include the case of Gary Tyler, black, who is
serving a life prison sentence in Louisiana for the murder of a white
schoolboy who was shot during racial disturbances in 1974. Tyler, aged 16
at the time of the incident, denied involvement in the crime. Although
unable to reach a firm conclusion on his guilt or innocence, Amnesty
International believes that Gary Tyler was denied a fair trial and that
racial prejudice played a major part in his prosecution, and it has
supported applications for his sentence of life-without-parole to be
reviewed (see USA:The Case of Gary Tyler, AMR 51/89/94).
Laws discriminating against homosexual practices
Amnesty International's work for the release of prisoners of conscience
includes individuals who have been imprisoned solely because of their
homosexuality, including the practice of homosexual acts in private between
freely consenting adults. Amnesty International has campaigned for the
repeal of discriminatory sodomy laws in the US states of Montana, Arkansas,
Missouri, Kansas and Tennessee, which provide penalties of imprisonment for
consensual sexual acts between persons of the same sex.*39Such laws violate
the principles of non-discrimination and the right to privacy contained
under the ICCPR and other international standards. Although the laws have
not been used recently to prosecute consenting adults for sexual acts in
private, Amnesty International would consider any person imprisoned for
such acts to be a prisoner of conscience.
Treatment of Haitian and Cuban asylum seekers
Amnesty International has had serious concerns about the procedures
followed by the US authorities in dealing with Haitian asylum-seekers for
many years, and particularly since the September 1991 military coup in
which President Jean-Bertrand Aristide was overthrown. Amnesty
International condemned US policy, in force from May 1992 until May 1994,
of forcibly returning all Haitians intercepted at sea without even a
cursory attempt to identify those at risk of human rights violations. This
policy was in flagrant violation of international standards for the
protection of refugees.*40 In a change of policy in 1994 the US Government
offered such asylum seekers so-called "safe haven" protection at the US
naval base in Guanta[']namo Bay, Cuba, but they were not able to apply for
asylum in the USA. While Amnesty International welcomed the end of the
policy of forcible return of all intercepted Haitians, it remained
concerned that they had no opportunity for a proper hearing of their asylum
claims.
Amnesty International was seriously concerned by further change in US
policy in December 1994, when the US government decided to forcibly
repatriate all Haitian asylum-seekers remaining at Guantana[']mo Bay,
without allowing those who wished to do so to present asylum claims. Over
3,000 Haitian asylum-seekers were forcibly returned in January 1995.
Although the human rights situation in Haiti had improved, and thousands of
refugees had returned to the country voluntarily, many problems remained.
There had been no
serious attempt, for example, to disarm and bring to justice those
connected to the former military government who are believed to have been
responsible for human rights violations. Amnesty International called for
an immediate halt to the forcible repatriation and urged the immediate
implementation of a full and fair refugee determination procedure at
Guanta[']namo in accordance with internationally accepted standards.
In September 1994 an Amnesty International delegation visited
Guanta[']namo Bay to investigate the situation of Cuban and Haitian asylum-
seekers held there. As well as its concerns about Haitians, the
organization believed that a substantial number of Cubans held in camps at
Guanta[']namo Bay and Panama, who were not permitted to request asylum in
the USA, could be at risk of human rights violations if required to return
to Cuba. Amnesty International urged that they, too, be given the
opportunity to present asylum applications in accordance with
internationally accepted procedures.
Appendix: Selected International Standards
Articles of the International Covenant on Civil and Political Rights
(ratified by the US Government on 8 June 1992)
Article 6
1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with
the law in force at the time of the commission of the crime and not
contrary to the provisions of the present Covenant and to the Convention on
the Prevention and Punishment of the Crime of Genocide. This penalty can
only be carried out pursuant to a final judgement rendered by a competent
court.
3. When deprivation of life constitutes the crime of genocide, it is
understood that nothing in this article shall authorize any State Party to
the present Covenant to derogate in any way from any obligation assumed
under the provisions of the Convention on the Prevention and Punishment of
the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the sentence
of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons
below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the
abolition of capital punishment by any State Party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation.
Article 10
1. All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons and shall be subject to separate
treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought
as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social
rehabilitation. Juvenile offenders shall be segregated fron adults and be
accorded treatment appropriate to their age and legal status.
Article 26
All persons are equal before the law and are entitled witout any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
US reservations to the International Covenant on Civil and Political Rights
US reservation to Article 6
" Because approximately half the states have adopted legislation permitting
juveniles aged 16 and older to be prosecuted as adults when they commit the
most egregious offences, and because the Supreme Court has upheld the
constitutionality of such laws, the United States took the following
reservation to the Covenant:
`The United States reserves the right, subject to its Constitutional
constraints, to impose capital punishment an any person (other than a
pregnant woman) duly convicted under existing or future laws
permitting the imposition of capital punishment, including such
punishment for crimes committed by persons below eighteen years of
age.' "*41
US reservation to Article 7
" The extent of the constitutional provisions discussed above is arguably
narrower in some respects than the scope of article 7. For example, the
Human Rights Committee adopted the view that prolonged judicial proceedings
in cases involving capital punishment might constitute cruel, inhuman or
degrading treatment or punishment in contravention of this standard. The
Committee has also indicated that the prohibition may extend to such other
practices as corporal punishment and solitary confinement.
As such proceedings and practices have repeatedly withstood judicial
review of their constitutionality in the United States, it was determined
to be appropriate for the United States to condition its acceptance of the
United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment on a formal reservation to the effect
that the United States considers itself bound to the extent that 'cruel,
inhuman treatment or punishment' means the cruel and unusual treatment or
punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to
the Constitution of the United States. For the same reasons, and to ensure
uniformity of interpretation as to the obligations of the United States
under the Covenant and the Torture Convention on this point, the United
States took the following reservation to the Covenant:
`The United States considers itself bound by article 7 to the extent
that 'cruel, inhuman or degrading treatment or punishment' means the
cruel and unusual treatment or punishment prohibited by the Fifth,
Eighth and/or Fourteenth Amendments to the Constitution of the United
States.' "*42
The American Convention on Human Rights
(signed by the US government on 1 June 1977)
Article 4. Right to Life
1. Every person has the right to have his life respected. This right shall
be protected by law, and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life.
2. In countries that have not abolished the death penalty, this may be
imposed only for the most serious crimes and pursuant to a final judgment
rendered by a competent court and in accordance with a law establishing
such punishment, enacted prior to the commission of the crime. Its
application shall not be extended to crimes to which it does not presently
apply.
3. The death penalty shall not be re-established in states that have
abolished it.
4. In no case shall capital punishment be inflicted for political offences
or related common crimes.
5. Capital punishment shall not be imposed upon persons who, at the time
the crime was committed, were under 18 years of age or over 70 years of
age; nor shall it be applied to pregnant women.
6. Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all
cases. Capital punishment shall not be imposed while such petition is
pending a decision by the competent authority.
The United Nations (UN) Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
(ratified by the US government in October 1994)
This provides, among other things, that education and information regarding
the prohibition against torture or other cruel, inhuman or degrading
treatment or punishment shall be fully included in the training of law
enforcement personnel and others (Articles 10 and 16). It also provides
that each State Party shall ensure there is a prompt and impartial
investigation whenever there is reasonable ground to believe that an act of
torture or other cruel, inhuman or degrading treatment has been committed
in any territory under its jurisdiction (Articles 12 and 16).
Resolution 1984/50 on safeguards guaranteeing protection of the rights of
those facing the death penalty, adopted by the United Nations Economic and
Social Council on 25 May 1994
1. In countries which have not abolished the death penalty, capital
punishment may be imposed only for the most serious crimes, it being
understood that their scope should not go beyond intentional crimes with
lethal or other extremely grave consequences.
2. Capital punishment may be imposed for a crime for which the death
penalty is prescribed by law at the time of its commission, it being
understood that if, subsequent to the commission of the crime, provision is
made by law for the imposition of a lighter penalty, the offender shall
benefit thereby.
3. Persons below 18 years of age at the time of the commission of the crime
shall not be sentenced to death, nor shall the death penalty be carried out
on pregnant women, or on new mothers, or on persons who have become insane.
4. Capital punishment may be imposed only when the guilt of the person
charged is based upon clear and convincing evidence leaving no room for an
alternative explanation of the facts.
5. Capital punishment may only be carried out pursuant to a final judgement
rendered by a competent court after legal process which gives all possible
safeguards to ensure a fair trial, at least equal to those contained in
article 14 of the International Covenant on Civil and Political Rights,
including the right of anyone suspected or charged with a crime for which
capital punishment may be imposed to adequate legal assistance at all
stages of the proceedings.
6. Anyone sentenced to death shall have the right to appeal to a court of
higher jurisdiction, and steps should be taken to ensure that such appeals
shall become mandatory.
7. Anyone sentenced to death shall have the right to seek pardon, or
commutation of sentence; pardon or commutation of sentence may be granted
in all cases of capital punishment.
8. Capital punishment shall not be carried out pending any appeal or other
recourse procedure or other proceeding relating to pardon or commutation of
the sentence.
9. Where capital punishment occurs, it shall be carried out so as to
inflict the minimum possible suffering.
Extracts from Resolution 1989/64, adopted by the United Nations Economic
and Social Council on 24 May 1989
1. Recommends that Member States take steps to implement the safeguards and
strengthen further the protection of the rights of those facing the death
penalty, where applicable, by:
(a) Affording special protection to persons facing charges for which
the death penalty is provided by allowing time and facilities for the
preparation of their defence, including the adequate assistance of counsel
at every stage of the proceedings, above and beyond the protection afforded
in non-capital cases;
(b) Providing mandatory appeals or review with provisions for
clemency or pardon in all cases of capital offence;
(c) Establishing a maximum age beyond which a person may not be
sentenced to death or executed;
(d) Eliminating the death penalty for persons suffering from mental
retardation or extremely limited mental competence, whether at the stage of
sentence or execution.
Standards on police codes of conduct and use of force
Relevant articles under the UN Code of Conduct for Law Enforcement
Officials, adopted by the UN General Assembly in 1979:
Article 2: "In the performance of their duty, law enforcment
officials shall respect and protect human dignity and maintain and
uphold the human rights of all persons."
Article 3: "Law enforcement officials may use force only when
strictly necessary and to the extent required for the performance of
their duty."
More detailed guidelines are set out in the Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials, adopted by the Eighth UN
Congress on the Prevention of Crime and Treatment of Offenders on 7
September 1990. These provide in part:
4. "Law enforcement officials, in carrying out their duty, shall, as
far as possible, apply non-violent means before resorting to the use
of force and firearms. They may use force and firearms only if other
means remain ineffective or without any promise of achieving the
intended result."
5. "Whenever use of force and firearms is unavoidable, law
enforcement officials shall:
a. Exercise restraint in such use and act in proportion to the
seriousness of the offence and the legitimate objective to be
achieved;
b. Minimize damage and injury and respect and preserve human life;
c. Ensure that assistance and medical aid are rendered to any injured
or affected persons at the earliest possible moment";
9. "Law enforcement officials shall not use firearms against persons
except in self-defence or defence of others against the imminent
threat of death or serious injury, to prevent the perpetration of a
particularly serious crime involving grave threat to life, to arrest
a person presenting such a danger or resisting their authority, or to
prevent his or her escape, and only when less extreme means are
insufficient to achieve these objectives. In any event, intentional
lethal use of firearms may only be made when strictly unavoidable in
order to protect life." (emphasis added)
10. "In the circumstances provided for under principle 9, law
enforcement officials shall identify themselves as such and give a
clear warning of their intent to use firearms, with sufficient time
for the warning to be observed, unless to do so would unduly place
the law enforcement officials at risk or would create a risk of death
or serious harm to others, or would be clearly inappropriate or
pointless in the circumstances of the incident."
The Basic Principles also provide that law enforcement officials shall,
among other things:
11(b) "Ensure that firearms are used only in appropriate
circumstances and in a manner likely to decrease the risk of
unnecessary harm."
Article 6 of the Basic Principles provides that officials shall
promptly report any use of force or firearms that results in injury or
death. Article 7 provides that governments shall ensure that "arbitrary or
abusive use of force and firearms by law enforcement officials is punished
as a criminal offence under their law."
Governments were asked to consider incorporating the provisions of
the Code of Conduct for Law Enforcement Officials into national legislation
or guidelines for law enforcement agencies.
The Eighth UN Crime Congress invited member states to bring the Basic
Principles to the attention of law enforcement officials and other members
of the executive branch of government, judges, lawyers, the legislature and
the public and to inform the UN Secretary-General every five years of the
progress achieved in their implementation.
FOOTNOTES/ENDNOTES
*1 Before the 1972 Supreme Court ruling striking down US death penalty laws
(Furman v Georgia, 408 U.S. 238) there had already been a steady decline in
the use of the death penalty in the USA, with a moratorium on executions in
1967.
*2 The body of experts established under the ICCPR to monitor
implementation of that treaty.
*3 The prohibition of the execution of minors under 18 at the time of the
crime is contained under the ICCPR, the American Convention on Human
Rights, the Convention on the Rights of the Child, and the UN Ecosoc
safeguards guaranteeing the protection of the rights of those facing the
death penalty, adopted by Resolution 1984/50 on 25 May 1984.
*4 Article 6 is one of the articles under the ICCPR from which governments
may not derogate even in time of national emergency. Article 7 (to which
the US also entered a reservation) is another.
*5 See USA:The Death Penalty and Juvenile Offenders, (AMR 51/23/91), a
report published by Amnesty International in October 1991.
*6 Since 1988 federal grants have partially funded state "resource
centres": offices with a small staff of lawyers who handle federal appeals
in capital cases or recruit "volunteer" lawyers to take on cases without
pay. However, there remains a serious shortage of lawyers prepared to take
on such cases in some states, particularly those with a large death row
population such as Texas.
*7 For example, in one district in Georgia, between 1973 and 1990
prosecutors sought the death penalty in 34.3 per cent of white-victim
homicides and only 5.8 per cent of black-victim homicides - a difference
that could not be explained by non-racial factors such as the presence of
aggravating circumstances, additional felonies or multiple victims. In a
trial where this evidence was presented, relatives of black murder victims
testified that prosecutors had shown little interest in following up their
cases, in contrast to their vigorous prosecution of cases involving white
victims. (Chattahoochee Judicial District: The Death Penalty in Microcosm,
published by the Death Penalty Information Centre, Washington, DC (1991).
*8 The Racial Justice Act (RJA) would have allowed defendants to present
statistical evidence of a pattern of disproportionate death sentencing on
the basis of race to establish a prima facie case for discrimination, which
the prosecuting authorities would then have had to rebut. It also required
death penalty states and the federal government to collect data on death
sentencing patterns. The RJA was passed by the House of Representatives but
defeated in the Senate, and was not included in the final version of the
crime bill. Opponents had argued that such a measure would have placed huge
burdens on prosecutors to disprove discrimination and impeded the
administration of the death penalty.
*9 Amnesty International raised concern about this and other cases in a
document USA:The Risk of Executing the Innocent, AMR 51/19/89. There has
been much concern about the recent case of Jesse Dewayne Jacobs, executed
in Texas on 4 January 1995 for the fatal shooting of the estranged wife of
his sister's boyfriend. He was convicted on the basis of a pre-trial
confession in which he said he had shot the victim, a confession he
recanted at trial. His sister was later tried for the same crime and the
state conceded in her trial that she had been the killer and that Jacobs
had not known that she had a gun or anticipated the killing. Although
Jacobs was involved in the abduction of the victim, there are grave doubts
that he was guilty of the crime of capital murder. However, the Texas Board
of Pardons and Paroles refused to commute the death sentence and the state
authorities refused to review the case.
*10 For further information on the US death penalty see USA:The Death
Penalty AMR 51/01/87;Open letter to the President on the Death Penalty, AMR
51.01.94 and Developments on the US Death Penalty (1988-1994).
*11 In 1991 the US Justice Department reviewed 15,000 complaints of
misconduct by state law enforcement officials filed with its Civil Rights
Division over a six year period from 1985-1990 to see if any patterns of
abuse could be identified in particular areas. However, it was unable to
draw any statistically valid conclusions because the data examined
represented only a small proportion of total complaints of misconduct from
the more than 16,000 local law enforcement agencies in the USA (most of
which are filed locally, not with the Justice Department). The states with
the greatest number of complaints filed with the Justice Department were
California, Louisiana and Texas, followed by New York, Georgia, Florida,
Alabama and Mississippi.
*12 a device which shoots darts (connected by wires to the taser) which
discharge an electrical shock as the switch on the taser is depressed.
*13 The Christopher Commission on the LAPD (set up following the Rodney
King beating) found that a significant number of officers repeatedly used
excessive force and ignored departmental guidelines. It recommended, among
other things, that an Office of Inspector General be set up within the
Police Commission to provide independent oversight of complaints against
the police. An inquiry by Judge Kolts into the LASD, which reported in July
1992, found a serious problem of excessive force, including physical
brutality and unjustified shootings of unarmed suspects as well as ill-
treatment of jail inmates; it also recommended some independent supervision
of complaints.
*14 He alleged that the division's Commander and another officer shocked
him with a "black box" by attaching clips to his ear and nostril and
cranking the box to produce an electric current.
*15 a black box similar to the one allegedly used in the Wilson case.
*16 In 1993 an all civilian complaints review board was created to replace
the former board half of whom had been police officers and which had police
investigators. There have also been changes to the Internal Affairs
Division within the NYPD although it is not yet known how these changes
will operate in practice. In January 1995 the NYC Council voted to
establish an independent agency to monitor corruption within NYPD as
recommended by the Mollen Commission, although the new law is currently the
subject of dispute between the council and the mayor who opposes some of
the provisions.
*17 The American Journal of Forensic Medicine and Pathology has published
several articles on restraint and positional asphyxia in the last few
years.
*18 The findings of the Justice Department study and the department's
response were reported in the New York Times, 13 December 1994
*19 According to the Bureau of Justice Statistics published in October 1994
the prison population grew by 40,000 prisoners in the first six months of
1994 alone, and in June 1994 there were 373 prisoners for every 100,000 of
the US population, one of the highest incarceration rates in the world
(reported in New York Times 27 October 1994).
*20 Examples of published court cases on abusive treatment of prisoners are
given in Human Rights Violations in the United States, a report published
in December 1993 by Human Rights Watch and the American Civil Liberties
Union on US compliance with the ICCPR.
*21 The ruling noted that, unlike some large prison systems in other US
states, the housing units in Pelican Bay were monitored by armed guards. In
September 1994 Amnesty International wrote to the authorities expressing
concern about the fatal shooting of a prisoner by a guard in another
California prison - San Quentin - reportedly after the prisoner had been
involved in a minor altercation with another inmate. Following growing
concern about the high incidence of such shootings in California prisons,
and in response to the Pelican Bay ruling, the California prison
authorities announced in January 1995 that they were tightening their
policies regarding the use of lethal force.
*22 Vaughn Dortch is African American. A nurse testified during court
hearings that one of the guards involved had come into her officer to make
a phone call shortly afterwards and she heard him saying to a colleague
"looks like we're going to have a white boy before this is through";
clumps of skin were apparently hanging from his lower body, but officers
sought no medical assistance.
*23 A gas powered gun, which ejects high velocity rounds of rubber blocks.
These were frequently used during cell extractions.
*24 According to the initial report of the US Government to the Human
Rights Committee in August 1994, most US prison regulations do not
incorporate this standard (CCPR/C/81/ADD 4 at p. 67-8).
*25 These included access to radios and TVs under certain conditions at
inmate expense; better provision of reading materials and access to
educational correspondence courses; increased opportunities for exercise to
six hours a week; reduction in intensity of the 24-hour lighting in cells;
controls on the use of restraints; increased visitation; and changes in
procedures for confining prisoners in the facility.
*26 Letter to Amnesty International from Doris M. Poppler, US Attorney,
dated 6 November 1992.
*27 See Allegations of ill-treatment in Marion Prison, Illinois, USA, AMR
51/26/87. The report described allegations of beatings and other ill-
treatment made by many prisoners during imposition of the lockdown in the
prison in 1983. The lockdown was imposed on the whole prison after 2 prison
guards in the prison's control unit and an inmate in general population
were killed by prisoners. The report also described concerns about general
conditions prevailing in the prison as part of the lockdown, noting that a
number of practices, including the use of restraints and lack of provision
for programs, violated the UNSMR and may, in their totality, amount to
cruel, inhuman or degrading treatment. Conditions remain unchanged in most
of the prison.
*28 There are no alarm bells in the cells and no easy way to attract the
attention of guards if the intercom system is switched off. One prisoner
was murdered by his cell-mate who had a history of violence and had
repeatedly attacked him inside the cell. Another prisoner died of a heart
attack after his cell-mate repeatedly banged on the cell doors trying to
summon assistance.
*29 Amnesty International has been informed that the only change made to
the unit since its report are the installation of basket ball nets in the
exercise yards, although several prisoners have complained that they were
denied basket balls, something on which AI is seeking more information.
Food vending machines are also reported to have been installed in the
visitors' room.
*30 Madrid v Gomez, p. 198
*31 A small number of prisoners at risk of assault from other inmates were
also placed in the unit indefinitely for their own safety.
*32 The Justice Department reportedly receives about 8,000 complaints of
abuses by officials each year and reviews about 2,500. According to the US
Government's initial report to the Human Rights Committee in August 1994,
the Department of Justice had filed charges in approximately 126 cases of
official misconduct since 1988, the majority involving police officers (p.
72 of CCPR/C/81/Add.4). The outcome of such cases was not given.
*33 The federal prosecution of four officers acquitted in a Los Angeles
state court of violating the civil rights of black motorist Rodney King in
March 1991 was exceptional, and would probably not have taken place at all
without the video-taped evidence and the public attention the incident
attracted. Before this, the federal authorities had prosecuted only one
other law enforcement officer in Los Angeles since 1984, despite many
serious cases of alleged abuse and very few state prosecutions.
*34 These are usually "class action" suits (brought on behalf of a class of
prisoners) in which injunctive relief from certain conditions or practices
is sought from the federal court
*35 Reference to Toussaint 111 597 F. Supp at 1414, quoted in Madrid v
Gomez (fed. district court judgment on conditions in Pelican Bay, Jan 95).
*36 ibid at p. 335
*37 CCPR/c/81 Add.4, 24 August 1994 at p. 48.
*38 Amnesty International recognizes the right to "selective" objection on
conscientious grounds to particular wars, as it has done since the Vietnam
War. This applies both to conscripts and to volunteers who develop
conscientious objection after enlisting in the armed forces.
*39 Penalties range from up to 30 days' imprisonment in Tennessee for
"consensual sexual penetration with a person of the same gender" to a
maximum ten years' imprisonment in Montana for any sexual contact or sexual
intercourse between two persons of the same sex.
*40 Article 33 of the 1951 Convention relating to the Status of Refugees,
which specifies that refugees shall not be forcibly returned in any manner
whatsoever to the frontiers of territories where they risk serious human
rights violations; and Article 14.1 of the Universal Declaration of Human
Rights which states that "Everyone has the right to seek and to enjoy in
other countries asylum from persecution".
*41Initial Report of USA, CCPR/C/81/Add.4, page 41 para.148
*42Initial report of USA, CCPR/C/81/Add.4, page 48 para 176 and 177