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July 29, 2015

Saturday, February 14, 2015

Vera Report about the overuse of jails: Incarceration's Front Door

On Feb. 11th, the Vera Institute of Justice published their report Incarceration's Front Door: The Misuse of Jails in America.

"Local jails, which exist in nearly every town and city in America, are built to hold people deemed too dangerous to release pending trial or at high risk of flight. This, however, is no longer primarily what jails do or whom they hold, as people too poor to post bail languish there and racial disparities disproportionately impact communities of color.

This report reviews existing research and data to take a deeper look at our nation’s misuse of local jails and to determine how we arrived at this point. It also highlights jurisdictions that have taken steps to mitigate negative consequences, all with the aim of informing local policymakers and their constituents who are interested in in reducing recidivism, improving public safety, and promoting stronger, healthier communities."

Please visit this link to download the full report or the summary.

Monday, December 1, 2014

Committee against Torture: Concluding observations on the third to fifth periodic report s of United States of America

These are citations from the UN Committee against Torture (CAT) report on torture occurring in the USA and the extra-territorial areas it exerts power over (Oct-Nov 2014); we have chosen mostly from the parts concerning prisons, prisoners, but the whole report (16 pages) is worth reading and keeping as a documentation, before the next report due in 2018:

Committee against Torture: Concluding observations on the third to fifth periodic reports 
of United States of America.

[page 2] About criminalizing torture at the federal level, and that psychological torture is not qualified as "prolonged mental harm":

The Committee reiterates its previous recommendation (A/55/44, para. 180 (a) and AT/C/USA/CO/2, para. 13) that the State party should criminalize torture at the federal level, in full conformity with article 1 of the Convention, and ensure that penalties for torture are commensurate with the gravity of this crime. It recommends the re-introduction of the Law Enforcement Torture Prevention Act, a bill which contains a definition of torture and specifically criminalizes acts of torture by law enforcement
personnel and others under the color of law.

The State party should give further consideration to withdrawing its interpretative understandings and reservations. In particular, it should ensure that acts of psychological torture are not qualified as “prolonged mental harm”.

In this regard, the Committee draws the attention to its General Comment No. 2 (2007), on the
implementation of article 2 of the Convention by State parties, which states that serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity (CAT/C/GC/2, para. 9).
[p. 3]
Extra-territorial imprisonment:

The Committee reiterates its view (CAT/C/USA/CO/2, para. 15) that the State party should take effective measures to prevent acts of torture not only in its sovereign territory but also “in any territory under its jurisdiction”. In this respect, the Committee recalls, as stated in its General Comment No. 2, that ‘any territory’ includes “all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.

The reference to ‘any territory’ in article 2, like that in articles 5, 11, 12, 13 and 16 [of the Convention], refers to prohibited acts committed not only on board a ship or aircraft registered by the a State party, but also during military occupation or peacekeeping operations and in such places as embassies, military bases, detention facilities, or other areas which a State party exercises factual or effective control” (para. 16).

The State party should amend the relevant laws and regulations accordingly, and withdraw its reservation to article 16 as a means to avoid wrongful interpretations.
[p. 3-4]
Counter-terrorism measures

11. The Committee expresses its grave concern over the extraordinary rendition, secret detention and interrogation programme operated by the U.S. Central Intelligence Agency (CIA) between 2001 and 2008, which involved numerous human rights violations, including torture, ill-treatment and enforced disappearance of persons suspected of involvement in terrorism-related crimes.

While noting the content and scope of Presidential E.O. 13491, the Committee regrets the scant information provided by the State party with regard to the now shuttered network of secret detention facilities, which formed part of the high-value detainee programme publicly referred to by President Bush on 6 September 2006.

It also regrets the lack of information provided on the practices of extraordinary rendition and enforced disappearance; and, on the extent of the CIA’s abusive interrogation techniques used on suspected terrorists, such as water-boarding. In this regard, the Committee is closely following the declassification process of the U.S. Senate Select Committee on Intelligence’s report on the CIA’s detention and interrogation programme (art. 2, 11 and 16).

The Committee urges the State party to:

(a) Ensure that no one is held in secret detention under its de facto effective control. The Committee reiterates that detaining individuals in such conditions constitutes per se a violation of the Convention;

(b) Take all necessary measures to ensure that its legislative, administrative and other anti-terrorism measures are compatible with the provisions of the Convention, specially with article 2;

(c) Adopt effective measures to ensure, in law and in practice, that all detainees are afforded all legal safeguards from the very outset of their deprivation of liberty, including those mentioned in paragraphs 13 and 14 of the Committee’s General Comment No. 2.

The Committee calls for the declassification and prompt public release of the Senate Select Committee on Intelligence’s report on the CIA’s secret detention and interrogation programme with minimal redactions.

The Committee also encourages the State party to ratify the International Convention for the Protection of All Persons from Enforced Disappearance.

[p. 4]
The Committee expresses concern over the ongoing failure to fully investigate allegations of torture and ill-treatment of suspects held in U.S. custody abroad, evidenced by the limited number of criminal prosecutions and convictions.

[p. 5-6]
Guantanamo Bay detention facilities
The Committee expresses its deep concern about the fact that the State party continues  to hold a number of individuals without charge at Guantanamo Bay detention facilities.

Notwithstanding the State party’s position that these individuals have been captured and detained as “enemy belligerents” and that under the law of war is permitted “to hold them until the end of the hostilities”, the Committee reiterates that indefinite detention constitutes per se a violation of the Convention. According to the figures provided by the delegation, to date, out of the 148 men still held at the facility, only 33 have been designated for potential prosecution, either in federal court or by military commissions – a system that fails to meet international fair trial standards. The Committee notes with concern that 36 others have been designated for “continued law of war detention”.
While noting that detainees held in Guantanamo have the constitutional privilege of the writ of habeas corpus, the Committee is concerned at reports that indicate that federal courts have rejected a significant number of habeas corpus petitions.

The Committee calls for the declassification of torture evidence, in particular Guantanamo detainees’ accounts of torture. The State party should ensure that all victims of torture are able to access a remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or the victim.

The State party should take effective steps to ensure the provision of mutual judicial assistance in all matters of criminal procedure regarding the offence of torture and related crimes of attempting to commit, complicity and participation in torture.

The Committee recalls that article 9 of the Convention requests States parties to “afford one another the greatest measure of assistance” in connection with criminal proceedings related to violations of the Convention.
[p. 7]
Transfer of detainees from Guantanamo Bay and reliance on diplomatic resources

The Committee calls on the State party to ensure that no individual, including persons suspected of terrorism, who are expelled, returned, extradited or deported, is exposed to the danger of torture or other cruel, inhuman or degrading treatment or punishment.

It urges the State party to refrain from seeking and relying on diplomatic assurances “where there are substantial grounds for believing that [the person] would be in danger of being subjected to torture” (art. 3). The principle of non-refoulement should always have precedence over any other protection measure.
[p. 7]
Interrogation techniques
The Committee appreciates the initiatives of the State party to eliminate interrogation methods which constitute torture or ill-treatment. Nevertheless, the Committee is concerned about certain aspects of Appendix M of the Army Field Manual Human Intelligence Collector Operations, FM 2-22.3 of September 2006, in particular the description of some authorised methods of interrogation, such as the interrogation techniques of “physical separation” and “field expedient separation”.

While noting the information by the delegation to the effect that such practices are consistent with the State party’s obligations under the Convention, the Committee remains concerned over the possibilities for abuse such techniques may entail (arts. 1, 2, 11 and 16).
[p. 9]
Immigration detention
The Committee notes with concern that the State party continues to use, under certain circumstances, a system of mandatory detention to automatically hold asylum seekers and other immigrants on arrival in prison-like detention facilities, county jails and private prisons.

It is also concerned at the recent expansion of family detention with the plan to establish up to 6,350 additional detention beds for undocumented migrant families with children.

The Committee observes that despite the increased use of foster care for unaccompanied children and separate children, many of them continue to be held in group homes and secure facilities, which closely resemble juvenile correctional facilities.

While acknowledging the steps taken by the State party to reform the immigration detention system, the Committee remains concerned by reports of substandard conditions of detention in immigration facilities and use of solitary confinement. It is also concerned about reports of sexual violence by staff and other detainees (arts. 2, 11 and 16).

The State party should:

(a) Review the use of mandatory detention of certain categories of immigrants;

(b) Develop and expand community-based alternatives to immigration detention, expand the use of foster care for unaccompanied children, and halt the expansion of family detention, with a view to progressively eliminating it completely;

(c) Ensure compliance with the 2013 Directive on the appropriate use of segregation in U.S. Immigration and Customs Enforcement (ICE) detention facilities and the 2011 Performance-based national standards in all immigration detention facilities;

(d) Prevent sexual assault in immigration detention and ensure that all facilities holding immigration detainees are in compliance with Prison Rape Elimination Act standards;

(e) Establish an effective and independent oversight mechanism to ensure prompt,  impartial and effective investigation into all allegations of violence and abuse in immigration centres.

[p. 9]
Solitary confinement
While noting that the State party has indicated that there is “no systematic use of solitary confinement in the United States”, the Committee remains concerned about reports of extensive use of solitary confinement and other forms of isolation in US prisons, jails and other detention centres for purposes of punishment, discipline and protection, as well as for health-related reasons.

It also notes the lack of relevant statistical information available.

Furthermore, it is concerned about the use of solitary confinement for indefinite periods of time, and its use against juveniles and individuals with mental disabilities. The full isolation for 22-23 hours a day in super-maximum security prisons is unacceptable (art. 16).

The State party should:

(a) Limit the use of solitary confinement as a measure of last resort, for as short time as possible, under strict supervision and with the possibility of judicial review;

(b) Prohibit any use of solitary confinement against juveniles, persons with intellectual or psychosocial disabilities, pregnant women, women with infants and breastfeeding mothers in prison;

(c) Ban prison regimes of solitary confinement such as those in super-maximum security detention facilities;

(d) Compile and regularly publish comprehensive disaggregated data on the use of solitary confinement, including related suicide attempts and self-harm.

[p. 10]
Protection of prisoners against violence, including sexual assault 
The Committee is seriously concerned at the widespread prevalence of sexual violence, including rape, in prisons, jails and other places of detention by staff and by other inmates.

It also notes with concern the disproportionally high rates of sexual violence faced by children in adult facilities, as well as the higher rates of sexual victimization reported by inmates with a history of mental health problems and LGBTI individuals.

While welcoming the promulgation in 2012 of the National Standards to Prevent, Detect, and Respond to Prison Rape under the Prison Rape Elimination Act (PREA), the Committee is concerned by reports that their implementation at the state level continues to be a substantial challenge.

In this context, the Committee notes with concern that six states have not certified that they are in full compliance with PREA standards, and several agencies operating federal confinement facilities are still in the process of issuing their own PREA regulations.

The Committee remains concerned over the negative effects of the Prison Litigation Reform Act (PLRA) on the ability of prisoners to seek protection of their rights. While taking note of the changes introduced in 2013 in the PLRA (adding “the commission of a sexual act” as an alternative to physical injury to establish eligibility for compensation for emotional distress), the Committee considers that the State party has continued to place greater emphasis on the goal of curbing prisoner lawsuits at the expense of inmates’ rights.

Thus, the Committee regrets that section 1997 e(e) requires a predicate of either “physical injury” or “the commission of a sexual act ” as a prerequisite to obtaining compensatory damages for mental or emotional injury. It is concerned further at section 1997 e(a) of the PLRA, that requires prisoners to exhaust all internal complaint procedures before bringing an action in federal court, which implies that they have to meet applicable deadlines for filing the initial grievance and making administrative

Finally, the Committee notes that 19 states have enacted a statute restricting the shackling of pregnant inmates and that legislation has also been under consideration in a number of other states. It is nevertheless concerned at reports that in certain cases incarcerated women are still shackled or otherwise restrained throughout pregnancy and during labour, delivery, and post-partum recovery (arts. 2, 11, 12, 13, 14 and 16).

The Committee recommends the State party to increase its efforts to prevent and combat violence in prisons and places of detention, including sexual violence by law enforcement and penitentiary personnel and by other inmates. In particular, the State party should:

(a) Ensure that PREA standards or similar standards are adopted and implemented by all states, and that all federal agencies and departments operating confinement facilities propose and publish regulations that apply PREA standards to all detention facilities under their jurisdiction;

(b) Promote effective and independent mechanisms for receiving and handling complaints of prison violence, including sexual violence;

(c) Ensure that any and all reports of prison violence, including sexual violence, are investigated promptly and impartially and that the alleged perpetrators are prosecuted;

(d) Ensure the use of same-sex guards in contexts where the detainee is vulnerable to attack, in scenarios that involve close personal contact or that involve the privacy of the detainee;

(e) Provide specialized training to prison staff on prevention of sexual violence;
(g) Develop strategies for reducing violence among inmates. Monitor and document incidents of violence in prisons with a view to revealing the root causes and designing appropriate prevention strategies;

(h) Authorize monitoring activities by non-governmental organizations;

(i) Amend sections 1997 e(a) and (e) of the Prison Litigation Reform Act;

(j) Revise the practice of shackling of incarcerated pregnant women, bearing in mind that the regime of the prison shall be flexible enough to respond to the needs of pregnant women, nursing mothers and women with children (see the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules, as adopted by the General Assembly in its resolution 65/229 of 21 December 2010, Rule 42.2).

[p. 11]
Deaths in custody
The Committee notes with concern that 958 inmates died while in the custody of local jails during 2012, an 8 percent increase from the 889 deaths in 2010. During the same year State prison deaths remained stable with 3,351 reported deaths.

The Committee is particularly concerned about reports of inmate deaths occurred as a result of extreme heat exposure while imprisoned in unbearably hot and poor ventilated prison facilities in Arizona, California, Florida, New York, Michigan and Texas (arts. 2, 11 and 16).

The Committee urges the State party to investigate promptly, thoroughly and impartially all deaths of detainees, assessing the health care received by inmates as well as any possible liability of prison personnel, and provide, where appropriate, adequate compensation to the families of the victims.

The State party should adopt urgent measures to remedy any deficiencies concerning the temperature, insufficient ventilation and humidity levels in prison cells, including death row facilities.

[p. 11-12]
Juvenile justice
The Committee remains concerned at the notable gaps in the protection of juveniles in the State party’s criminal justice system. In particular, the Committee expresses once again its concern at the conditions of detention for juveniles, including their placement in adult jails and prisons, and in solitary confinement (art. 11 and 16).

The State party should take the necessary measures to ensure the proper functioning of the juvenile system in compliance with international standards. In particular, the State party should:

(a) Ensure full implementation of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, General Assembly res. 40/33 of 29 November 1985, annex) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines, General Assembly resolution 45/112, annex);

(b) Ensure that juvenile detainees and prisoners under 18 are held separately from adults, in line with the provisions of The Beijing Rules (rules 13.4 and 26.3), and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (General Assembly resolution 45/113 of 14 December 1990, rules 17, 28 and 29);

(c) Prohibit any use of solitary confinement against juveniles (see, para. 20);

(d) Resort more to alternatives to incarceration, taking into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules, General Assembly resolution 45/110, of 14 December 1990) and the Bangkok Rules.

Life-without-parole sentences for juvenile offenders
While welcoming Supreme Court’s rulings in Graham v. Florida (2010) and Miller v. Alabama (2012), imposing limitations on juvenile life-without-parole sentences, the Committee remains concerned that some courts have ruled that Miller v. Alabama does not apply retroactively and that a majority of the 28 states that required mandatory life sentences without the possibility of parole for children have not passed legislation to comply with the ruling. Moreover, the rulings leave open the possibility of judges imposing life without parole sentences in homicide cases, even where the child played a minimal role, and courts continue to impose the sentence (art. 11 and 16).

The State party should abolish the sentence of life imprisonment without parole for offences committed by children under 18 years of age, irrespective of the crime committed. Enable child offenders currently serving life without parole to have their cases reviewed by a court for reassessment and resentencing, to restore parole eligibility and for a possible reduction of sentence.

[p. 12]
Death penalty
While welcoming that six states have abolished capital punishment during the period under review, the Committee expresses its concern at the State party’s admission that it is not currently considering abolishing the death penalty at the federal level.

It also expresses its concern at reported cases of excruciating pain and prolonged suffering that procedural irregularities have caused to condemned prisoners in the course of their execution. The Committee is specially troubled by the recent cases of botched executions in Arizona, Oklahoma, and Ohio.

The Committee is equally concerned at the continued delays in recourse procedures which keep prisoners sentenced to death in a situation of anguish and incertitude for many years. The Committee notes that in certain cases such situation amounts to torture in so far as it corresponds to one of the forms of torture (i.e. the threat of imminent death) contained in the interpretative understanding made by the State party at the time of ratification of the Convention (arts. 1, 2 and 16).

The State party should review its execution methods in order to prevent pain and prolonged suffering. The Committee recalls that according to the Safeguards guaranteeing protection of the rights of those facing the death penalty (approved by Economic and Social Council resolution 1984/50 of 25 May 1984), where capital punishment occurs, it shall be carried out so as to inflict the minimum suffering.

The State party should reduce the procedural delays that keep prisoners sentenced to capital punishment in the death row for prolonged periods.

The State party is encouraged to establish a moratorium on executions with a view to abolish the death penalty, to commute the sentences of individuals currently on death row and to accede to the Second Optional Protocol of the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

[p. 12-13]
Excessive use of force and police brutality
The Committee is concerned about numerous reports of police brutality and excessive use of force by law enforcement officials, in particular against persons belonging to certain racial and ethnic groups, immigrants and LGBTI individuals, racial profiling by police and immigration offices and growing militarization of policing activities.

The Committee is particularly concerned at the reported current police violence in Chicago, especially against African-American and Latino young people who are allegedly being consistently profiled, harassed and subjected to excessive force by Chicago Police Department (CPD) officers. It also expresses its deep concern at the frequent and recurrent police shootings or fatal pursuits of unarmed black individuals.

In this regard, the Committee notes the alleged difficulties to hold police officers and their employers accountable for abuses. While noting the information provided by the delegation that over the past five years 20 investigations were opened into allegations of systematic police department violations, and over 330 police officers were criminally prosecuted, the Committee regrets the lack of statistical data available on allegations of police brutality and the lack of information on the result of the investigations undertaken in respect of those allegations.

With regard to the acts of torture committed by CPD Commander Jon Burge and others under his command between 1972 and 1991, the Committee notes the information provided by the State party that a federal rights investigation did not develop sufficient evidence to prove beyond a reasonable doubt that prosecutable constitutional violations occurred,

However, it remains concerned that, despite the fact that Jon Burge was convicted for perjury and obstruction of justice, no Chicago police officer has been convicted for these acts of torture for reasons including the statute of limitations expiring.

While noting that several victims were ultimately exonerated of the underlying crimes, the vast majority of those tortured – most of them African Americans – , have received no compensation for the extensive injuries suffered (arts. 11, 12, 13, 14 and 16).

[p. 14]
Redress, including compensation and rehabilitation
While noting the State party’s assertion that its legislation provides a wide range of civil remedies for seeking redress in cases of torture at the federal and state level, the Committee regrets the limited information provided by the delegation on rehabilitation programmes for both domestic and third country victims, or the allocation of resources to support such programmes.

The Committee is further concerned about the situation of certain individuals and groups made vulnerable by discrimination or marginalization who face specific obstacles that impede the enjoyment of their right to redress (art. 14).

The State party should ensure that appropriate rehabilitation programmes are provided to all victims of torture and ill-treatment, including medical and psychological assistance. The State party should also enhance its support and funding for torture rehabilitation programmes in the State party.

The Committee urges the State party to take immediate legal and other measures to ensure that all victims of torture and ill-treatment obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible, in particular victims of police brutality, terror suspects claiming abuse, victims of gender violence, asylum-seekers, refugees and others under international protection.

The Committee draws the State party’s attention to its General Comment No. 3 (2012) on the implementation of article 14 by State parties (CAT/C/GC/3), in which it elaborates upon the nature and scope of State parties’ obligations to provide full redress to victims of torture, in particular to paragraphs 3-4, 11-15, 19, 32 and 39.

Saturday, November 22, 2014

US Government went Before UN Committee Against Torture & Defend Solitary Confinement

On Nov 12th and 13th, the U.S. Government went before the U.N. Committee Against Torture for a periodic review. Here follow a few Shadow Reports submitted to the U.N. reporting on the torturous practice of Solitary Confinement used in the U.S.A.:

First, an introduction to the matter:
From Dissenter / Firedoglake, Nov 11th, 2014:

US Government to Go Before UN Committee Against Torture & Defend Solitary Confinement

During a periodic review of the country’s obligations under the Convention Against Torture, the United States is expected to go before the United Nations Committee Against Torture in Geneva and defend the use of solitary confinement.

On November 12 and 13, the committee will scrutinize President Barack Obama’s administration and its compliance with the treaty.

The UN Special Rapporteur on Torture defines [PDF] solitary confinement as “physical and social isolation of individuals who are confined to their cells for 22 to 24 hours a day.” The UN has been particularly concerned about “prolonged solitary confinement,” which is a “period of solitary confinement in excess of 15 days.” This is when “some of the harmful psychological effects of isolation can become irreversible.”

Also, the Special Rapporteur expressed concern in 2011 that “super maximum security” prisons “impose solitary confinement as a normal, rather than an ‘exceptional,’ practice for inmates.”

Read the rest here.

Following are Shadow Reports submitted to the U.N. Committee Against Torture:

The Torture of Solitary Confinement in the United States: The Example of New York State
Shadow Report of the Correctional Association of NY to the U.N. Committee Against Torture, 53 rd Session
September 22, 2014

Shadow Report Submission to the Committee on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Review of the United States of America
November 2014

This report is submitted by the Center for  Constitutional Rights (CCR), Legal Services for Prisoners with Children (LSPC), and California Prison Focus (CPF).

Children in Adult Jails and Prisons
Shadow Report to theU.N. Committee Against Torture
September 22, 2014

Submitted by:
- International Women’s Human Rights Clinic
- City University of New York Law School
- ACLU Michigan/Juvenile Life Without Parole Initiative
- Campaign for Youth Justice
- Correctional Association of New York
- The Project on Addressing Prison Rape
- American University, Washington College of Law
- University of Miami Human Rights Clinic

Torture in U.S. Prisons: Interfaith Religious Coalition Calls for End to Widespread Use of Prolonged Solitary Confinement
September 2014
A Shadow Report Prepared for the United Nations Committee Against Torture in Connection to its Review of the United States Compliance with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Submitted by:
National Religious Campaign Against Torture (NRCAT)