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20. Domestic Criminal Justice Issues and the ICCPR, ICCPR Coalition Report

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1. The Criminal Justice Policy Foundation, Open Society Policy Center, Penal Reform
International, and The Sentencing Project welcome the opportunity to comment on the
periodic report of the United States submitted to the Human Rights Committee in
October 2005 report (“Report”),1 as it pertains to domestic criminal justice issues.
2. The US is a wealthy country that has chosen to commit substantial resources to a
prison-centered penal system. Nationally, the United States sentences more than 1
million people to state and federal prison every year, and there are currently 7 million
people under correctional supervision, including more than 2 million in prison and jail.
Six percent of the American adult population have a felony conviction. As the American
criminal justice system continues to expand, its burden has fallen most heavily on the
poor and people of color. Their powerlessness and lack of resources make even more
urgent their need for human rights protections at trial, at sentencing and while being held
in custody. We urge the committee to critically analyze the United States’ periodic report
regarding its compliance with Articles 7, 10, 14, and 24 of the ICCPR.

Executive Summary
Article 14
3. The rights enumerated under Article 14 are generally supported by United States
constitutional jurisprudence. This includes the right to be represented by counsel at trial
and, for indigent defendants facing the possibility of imprisonment, to have counsel
provided to them. However, this basic requirement of a fair trial is often not met. With
three-quarters of criminal cases requiring the public provision of counsel, a system
without a vibrant and well-funded indigent defense system is not sufficiently meeting the
requirements of guaranteeing counsel. In practice, the United States does not make
adequate resources available for indigent defense and there are no mechanisms to ensure
that states provide competent counsel.
4. Effective counsel is necessary at all stages of a criminal court proceeding. Ninety five
percent of all criminal cases are settled not at trial but through plea bargains. Defendants
facing long mandatory sentences determined by legislation or strict sentencing guidelines
are very vulnerable to pressure from prosecutors and the assistance of a skilled and
knowledgeable attorney during the negotiation process is essential.
5. A competent attorney with the resources to mount an adequate defense can also
challenge police interrogation measures, coerced confessions, erroneous eye-witness

Second and Third Periodic Report of the United States of America to the United Nations Committee on
Human Rights Concerning the International Covenant on Civil and Political Rights, at § 281 (Oct. 21,


identification, perjury by police officers and other unjust practices that frequently deny
the defendant those aspects of a fair trial required by the ICCPR. Without adequate
resources to meet the growing need for effective assistance of counsel for indigent
defendants, the US cannot meet its obligations under the ICCPR.
Article 26
6. Article 26 of the ICCPR recognizes that “all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law.” Despite this
internationally accepted norm, a double standard of justice has been evident in criminal
sentencing in the United States, particularly for drug offenses. The national prison
population has more than tripled since 1980, with nearly half of that population being
black, although African Americans constitute only 12 percent of the U.S. population. The
increase in the prison population is not in response to rising crime and, nor an indication
of more criminal activity by blacks. Instead, it is a reflection of more stringent penalties
in the form of mandatory minimum sentences, particularly the penalty disparity between
crack and powder cocaine.
Articles 7 and 10
7. The United States has more than 2.2 million people in its prisons, jails, immigration
detention and juvenile facilities. The rapid growth of the prison population has taken
place at the same time as crime and punishment has become deeply politicized, with
increasing disrespect for the dignity and humanity of prisoners. As a result, both
deliberate policy and inadequate resources have led to increasingly inhuman conditions
within the United States prison and jail system that frequently contravene both Article 7
and Article 10 of the ICCPR.
8. Endemic overcrowding leads to greater levels of violence, lack of privacy, excessive
noise, inadequate programs and lack of essential services, including healthcare.
Especially at risk in these conditions are the large number of mentally ill within prisons
and jails. The mentally ill are overrepresented among those sent to super maximum
security (“Supermax”) prisons. In these prisons, people spend a minimum of 23 hours a
day in small cells with almost no interaction with other people, limited activities, sensory
deprivation, and harsh security restrictions. Confinement in a supermax can be
devastating for anyone, but for the mentally ill it surely constitutes torture.
9. In addition to the inhuman treatment suffered by all prisoners, women are especially at
risk for sexual abuse and humiliation, inadequate medical and obstetric care, including
shackling during childbirth, and loss of contact with their children. The separation from
children and risk of losing parental rights is gravest for those in private, for-profit prisons
who are often held in different states from where their families reside making it almost
impossible to maintain contact with their children.
10. Confining children within adult prisons and jails not only contravenes Article 14 but
also Articles 7 and 10 as their youth and vulnerability make the conditions they face


particularly inhuman and damaging. Children in adult prisons and jails are at increased
risk of suicide and sexual and physical abuse by guards and other prisoners. The sentence
of life without the possibility of release for children is an extreme form of cruel and
inhuman punishment that denies any possibility of rehabilitation.
Articles 14 and 24
11. The United States fails to recognize the right of children in conflict with the law to
procedures that take account of their age as required by Article 14 or the more general
requirements for the special protection of minors required under Article 24 of the ICCPR.
State legislation routinely allows children, in some cases as young as ten years old, to be
subject to adult criminal proceedings. Once in the jurisdiction of criminal court, child
offenders lose the protections that they would have received in the juvenile court which
takes account of their status as children and are eligible for adult sentences including life
in prison without the possibility of release.
12. While the number of new commitments of children to adult prisons has declined
from its peak, the Department of Justice’s latest figures show more than 9,000 children in
adult prisons and jails with more than 4,000 children per year entering the adult system,
70% of them youth of color.2 When the United States ratified the ICCPR, it attached a
limiting reservation stipulating that it “reserve[d] the right, in exceptional circumstances,
to treat juveniles as adults.” Clearly, however, given the numbers involved, the
circumstances in which children are treated as adults is far from exceptional. It is a
routine and everyday occurrence.
The Need for Counsel in a Criminal Proceeding
13. United States government officials maintain that the right to counsel is guaranteed in
all federal and state criminal court proceedings through the Sixth and Fourteenth
Amendments.3 In addition, the United States asserts that decisions in Gideon v.
Wainwright4 and Argersinger v. Hamlin5 extended this protection further by guaranteeing
public assistance of counsel for all indigent defendants charged with a felony (Gideon) or
any crime that might result in incarceration (Argersinger). What is not mentioned in the
Report is that the United States’ failure to adequately fund a system of public provision
of counsel has rendered the protections of Gideon, in the words of the American Bar
Association, a “broken promise.”6 As such, effective representation of counsel remains
elusive for the vast majority of criminal defendants and the United States routinely fails
to satisfy even the basic rudiments of legal protections, thereby violating Article 14 (3)

Howard Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report, (March
2006), US Dept. of Justice, Office of Justice Programs.
Supra, note 1.
372 U.S. 335 (1963).
407 U.S. 25 (1972).
American Bar Association, “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice,”
ABA Standing Committee on Legal Aid and Indigent Defendants, (December 2004).


(d). In addition, this failure to provide a vibrant and effective indigent defense system
jeopardizes the “presumption of innocence” requirement of Article 14 (2) in light of the
increased risk of erroneous convictions due to insufficient representation of counsel and
the over reliance on plea bargains to resolve cases.
14. Considering that more than three-quarters of all criminal defendants rely on the
public provision of counsel,7 a well-funded and effective indigent defense system is
necessary to ensure the fulfillment of the requirements of a fair trial. The American
adversarial system of justice is fundamentally flawed and unable to reach just outcomes if
one party has substantial resource advantages, which is commonplace in the domestic
criminal court system. In a country with a federal and state sentencing structure that
routinely sentences individuals to prison terms measured in decades, the stakes in the
more than 1 million criminal cases annually could not be higher.
15. A recent study of exonerations between 1989 and 2003 concluded that the primary
reason for an erroneous criminal conviction was eyewitness misidentification.8 Some of
this misidentification came as the result of perjury by police officers. Another common
cause for an incorrect conviction was a false confession, which was particularly of
concern among juveniles and those suffering from a mental disability. The researchers
found coercion in the files of over half of the cases involving a false confession. “False
confessions don’t come cheap. They are usually the product of long, intensive
interrogations that eventually frighten or deceive or break the will of a suspect to the
point where he will admit to a terrible crime that he did not commit.”9 The awareness of
the consequences of false confessions has been heightened in recent years as a result of a
steady stream of exonerations that have come about through advances in the use of DNAtesting technology.10 These risks inherent in the elicitation of criminal confessions
underscore the need for the presence of competent counsel in order to ensure the
protection of basic individual rights against a compelled confession of guilt, a violation of
Article 14 (3) (g).
16. Law enforcement tactics raise constitutional issues regarding the legality of the
search of person and property as well as the constitutionality of interrogation measures.
These tactics exist in a legal limbo, where the circumstances of the arrest, custody, and
interrogation techniques are critical in determining whether certain constitutional
protections should have been invoked. Theoretically a post-interrogation review is
available in which a defendant’s statements may be contested as inadmissible, but if a
confession has already been elicited, a successful challenge amounts to a Herculean task.
Only a competent attorney is capable of navigating these legal obstacles and sufficiently
representing a client’s interests.

Caroline Wolf Harlow, “Defense Counsel in Criminal Cases,” Washington, DC: Bureau of Justice
Statistics, (November 2000).
Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery, and Sujata Patil,
“Exonerations in the United States, 1989 through 2003,” The Journal of Criminal Law and Criminology,
Vol. 95, (2), (2005), pp. 523-560.
For more discussion of DNA-based exonerations, see


17. Arraignment, pre-trial hearings, and plea negotiations with the prosecutor are critical
steps in criminal case processing which demand the guidance of counsel. In light of the
fact that an estimated 95% of all criminal cases are resolved with a plea bargain, it is
crucial that a skilled attorney be present and involved in crafting an outcome that meets
the needs of the client and society. The expansion of the number of charged offenses
eligible for mandatory minimums in the last 20 years coupled with a severe sentencing
guideline and criminal code structure creates a “hammer” of impending punishment at the
disposal of the prosecutor as leverage in the negotiation process. In many cases, there
will be critical legal questions regarding the plea process as well as the admissibility of
evidence. A defendant is literally helpless to negotiate this process and make an
informed decision without the assistance of counsel. This threat of a severe sentence also
skews the calculus of the decision-making process regarding the admissibility of
evidence, because challenging a search or interrogation may result in potential exposure
to a lengthy mandatory minimum sentence. The decision to take this risk is significant,
and only an experienced attorney who has worked in the criminal court system can
provide guidance.
Consequences of Inadequate Funding
18. Despite the obvious need for assistance of counsel and the overwhelming reliance on
the public provision of counsel for the majority of criminal defendants, the United States
has failed to develop and fund an effective indigent defense system. This failure is
tantamount to violating the basic requirements of Article 14 (3) (d) which necessitates
that an individual “have legal assistance assigned to him, in any case where the interests
of justice so require; and without payment by him in any such case if he does not have
sufficient means to pay for it.” Although there are national standards issued by the
American Bar Association and the Department of Justice as to guidelines for indigent
defense, in practice these are frequently ignored. A report issued by the United States
Department of Justice concluded that “indigent defense in the United States today is in a
chronic state of crisis.”11
19. The failure to adequately fund indigent defense has a number of consequences.12
First, counsel is poorly compensated, meaning that it is difficult for public defender
programs to attract and retain talented attorneys. Most public defender programs are
unable to offer competitive starting salaries and even experienced counsel make a
fraction of what one may earn through other legal employment. For example, in the state
of Massachusetts, an attorney with 10 years of experience can only expect to make
$50,000 per year.13 This salary is substantially out of line with other areas of legal
practice. In Illinois, for a contract defender, the rate of remuneration for defense of a

Richard J. Wilson, Improving Criminal Justice Systems Through Expanded Strategies and Innovative
Collaborations, National Symposium on Indigent Defense. Department of Justice, Office of Justice
Programs and Bureau of Justice Assistance, March 2000.
For more information, see the supporting materials from the ABA’s “Gideon’s Broken Promise:
America’s Continuing Quest for Equal Justice,” available:
American Bar Association, Indigent Defense Briefing Sheet: Massachusetts, 2005. Available:


felony charge is $1,250.14 This statutorily-set rate has not changed in more than twentyfive years. In the case of contract defenders, in which indigent defense services are
provided by either a private attorney or an organization that enters into an agreement with
the State or local jurisdiction, the determination of who is awarded a contract is generally
determined by the lowest bidder, rather than who is situated best to deliver effective legal
20. There is also significant disparity between funding made available for defense
compared with prosecution. In California, a study found that funding for public defense
is 40% lower than monies dedicated to the prosecution.15 Inadequate funding also
prevents the hiring of experts to assist in the preparation of a defense and the frequent
failure to remunerate for expenses, administrative supplies, and investigatory costs. This
funding issue also results in irresponsibly high caseloads and reduced client-attorney
contact. While the National Advisory Commission on Criminal Justice Standards and
Goals calls for a caseload limit of 150 felony cases per year, a survey of public defenders
in Baltimore reported attorneys handling 80 to 100 felony cases at one time.16 Public
defenders are frequently re-assigned as new cases come into the system, resulting in an
alarming lack of continuity of representation for a client. Each new assigned counsel
must learn the particularities of the case, and this increases the likelihood of mistakes.
21. The United States Supreme Court in Gideon did not provide a uniform set of
standards by which states are required to establish and maintain an indigent defense
system. Many states operated without any standardized practice of representation, and as
such, defendants may not have been offered counsel. In Georgia, which only
implemented a statewide public defense system in 2005, defendants commonly pled
guilty to charges in the absence of any legal counsel.17 Even in cases in which the
eventual sentence was probation, the collection of onerous fines can become an
insurmountable albatross for many defendants.
22. It is left to the states, counties, and cities to determine the structure of delivery and
funding for the public provision of counsel. On average, counties are responsible for
paying nearly two-thirds of indigent defense services, while another one-quarter of
funding comes from the state.18 There are two states (Utah and Pennsylvania) in which
the county is entirely responsible for compensating the entire indigent defense program.
This results in disparities between jurisdictions in salary and support for public defense,


American Bar Association, Indigent Defense Briefing Sheet: Illinois, 2005. Available:
American Bar Association, Indigent Defense Briefing Sheet: California, 2005. Available:
American Bar Association, Indigent Defense Briefing Sheet: Maryland, 2005. Available:
In response to the problems of inadequate public defense in Georgia, The Sentencing Project and the
Prison and Jail Project of Americus, GA produced The Rule of Law: Citizens’ Rights in a Georgia Court of
Law. Available: This document informed the public of
their rights and the responsibilities of a public defender and the officers of the court.
Bureau of Justice Statistics, Indigent Defense Statistics. Available:


thereby creating inequalities in representation based on the geographic location of a
23. The tragedy in New Orleans in the wake of Hurricane Katrina has resulted in a public
defender system that has been completely decimated. There were estimates that 3,000
trials were pending prior to the arrival of Katrina. Since then, it is estimated that as many
as 6,000 individuals have been languishing in jail, some for months, awaiting trial. This
represents a substantial challenge for the Orleans County Public Defender. However,
despite this looming backlog of cases and the pending resumption of criminal
proceedings by the beginning of June, 31 county public defenders have been laid-off
since Katrina. These pending cases raise heretofore unseen legal questions and are
further complicated by spotty court records and missing witnesses scattered across the
country in the months following Katrina. In light of these seemingly insurmountable
legal challenges, a recent Department of Justice report has called for the hiring of 70
attorneys and a tripling of federal funding to more than $10 million.19 The situation in
New Orleans has already resulted in the postponement of many criminal cases due to a
lack of available counsel. Without additional funding and a commitment to more
personnel, the quality of legal representation will be violative of minimum ethical
standards of conduct.
24. The result is a public defense system that is underfunded and frequently staffed by
inexperienced attorneys with high caseloads and limited resources who are compelled to
seek pleas rather than put forth a vigorous defense of their client. In Alabama, an
analysis of case files found that in 99.4% of the cases in which defendants were
represented by a contract defender, there were no motions filed.20 In Mississippi, nearly
half of indigent cases resulted in a guilty plea on the day they were assigned to counsel.21
The Clark County, Nevada (Las Vegas) public defender reports a trial rate of less than
1%.22 In many cases, these restrictions prevent counsel from providing constitutionally
sufficient representation of a client, but the caselaw regarding review of the effectiveness
of counsel offers little relief. The landmark case of Strickland v. Washington provides an
onerous legal bar to demonstrate ineffective assistance of counsel, requiring both a
showing of incompetence as well as a demonstration that conduct of counsel had a
demonstrable impact on the verdict in the case.23 In addition, review of representation in
pre-trial proceedings is incredibly difficult to obtain. In practice, the Strickland standard
results in few reviews and even rarer reversals.


Henry Weinstein, “Report Sees Little Justice for Poor in New Orleans,” The Los Angeles Times. May 9,
2006. As of the date of issue of this shadow report, the Department of Justice report has yet to be released
American Bar Association, Indigent Defense Briefing Sheet: Alabama, 2005. Available:
American Bar Association, Indigent Defense Briefing Sheet: Mississippi, 2005. Available:
American Bar Association, Indigent Defense Briefing Sheet: Nevada, 2005. Available:
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).


25. A survey of indigent defense systems in the United States indicates a dramatic
increase in the demand for the public assistance of counsel during the mid-1990s, thereby
exacerbating caseload pressure.24 This has occurred during a period where funding has
not increased accordingly. Clients relying on public assistance of counsel are less likely
to receive pretrial release on bail, which has been demonstrated to be one of the most
important predictors of the outcome in a criminal trial. In addition, of all persons
convicted in court, defendants using public counsel are more likely to receive a sentence
to prison than individuals with private counsel. This may be an artifact of the fact that
people using public counsel tend to have a longer criminal record. However, the
heightened complexity of these types of cases underscores the need for a vigorous
advocate during pretrial proceedings as well as sentencing. In addition, the fact that
people of color are more likely to rely upon the public provision of counsel results in a
higher concentration of these consequences in the African American and Latino

The United States should review its current scheme of providing public assistance of
counsel, particularly in light of the consequences to the criminal court process, the
racially and economically disparate impact, and the manner in which it endangers just


The United States should develop a plan to address the inadequacies of the current
system and ensure that there is a national commitment to funding a vibrant and
effective public defender system in all states and the federal government.


The United States should commit substantial resources to hiring attorneys and other
staff personnel in the Orleans Public Defender Office as well as institute federal
oversight to ensure that effective representation is provided to the thousands of
defendants sitting in jail awaiting trial.

Mandatory Minimum Sentences Result in Unequal Treatment
26. A mandatory minimum sentence is a prison term predetermined by Congress and
automatically levied for offenses mainly involving drugs and firearms. In most cases the
sentence is at least five years, and often is 10, 15, 20 years or more for low level,
nonviolent offenders. Judges are barred from considering mitigating factors, resulting in
the application of inordinately harsh sentences which apply regardless of the defendant’s
role. In 1991 the U.S. Sentencing Commission,25 an independent agency in the judicial
branch with responsibility for advising the U.S. Congress on sentencing matters,

Supra, note 5.
The U.S. Sentencing Commission (USSC) is an independent agency in the judicial branch with
responsibility for advising the U.S. Congress on sentencing matters.


completed a meticulous study on mandatory minimums, finding that such sentences are
applied in a discriminatory fashion, with non-whites being more likely to receive them.26
The Federal Judicial Center reported that in cases where a mandatory minimum prison
term could be applied, African Americans and Hispanics were more likely than whites to
receive at least the minimum sentence.27 Although Congress’ stated intention was to
reduce arbitrariness and unwarranted disparities in sentencing, the report concluded that
mandatory minimums actually increase such problems. Mandatory minimum sentences
have been wrought with racial bias, with studies indicating that in cases where a
mandatory minimum could apply, African American offenders were 21 percent more
likely, and Latinos 28 percent more likely, than whites, to receive at least the mandatory
minimum prison term. Largely due to mandatory sentences, from 1994-2003 the
difference between the average time African American offenders served in prison versus
white offenders increased by 77 percent, compared to an increase of 28 percent for white
drug offenders.28 African American and Hispanic defendants now serve virtually as
much time in prison for a drug offense (58.7 months) as whites do for a violent offense
(61.7 months).29 The fact that people of color received mandatory sentences twenty
percent more often than similarly situated white defendants further evinces
discriminatory treatment in the administration of justice proscribed by the ICCPR.
27. The most flagrant example of discriminatory treatment in the application of
mandatory minimum sentences is the sentencing distinction between crack and powder
cocaine. In what has come to be known as the 100-to-1 quantity ratio, it takes 100 times
as much powder cocaine compared to crack cocaine to trigger the same mandatory
minimum penalty. In 2002, African Americans constituted more than 80 percent of the
people sentenced under federal crack cocaine laws, and served substantially more time in
prison for drug offenses than did whites,30 despite the fact that more than two-thirds of
crack cocaine users in the United States are white or Hispanic.31
This disparate
sentencing scheme has been touted as the single most important factor accounting for the
dramatic racial disparities in federal sentencing between black and white drug offenders.
The Sentencing Commission has stated that revising the crack/powder disparity would
better reduce the sentencing gap between blacks and whites than any other single policy
change, dramatically improving fairness.32
Federal Drug Prosecutions are Discriminatory


U.S. Sentencing Comm’n Special Report to the Congress: Mandatory Minimum Penalties in the Federal
Criminal Judicial System (1991).
Barbara S. Meierhoefer, “The General Effect of Mandatory Minimum Prison Terms: A Longitudinal
Study of Federal Sentencing Imposed” (1992)
Bureau of Justice Statistics [BJS], Compendium of Federal Justice Statistics, 1994 (Washington, D.C.;
March 1998)) Table 6.11, p. 85 and BJS, Compendium of Federal Justice Statistics, 2003 (Washington,
D.C.: Oct. 2004) Table 7.16, p. 112.
Compendium of Federal Judicial Statistics, 2003 (Oct. 2004), Table 7.16, p. 112.
USSC, Sourcebook (2002), Table 34.
Substance Abuse and Mental Health Services Administration, 2004 National Survey on Drug Use and
Health, Population Estimates 1995 (Washington, D.C.: Sept. 2005), Table 1.43a.
USSC, Fifteen Years of Guidelines Sentencing (Nov. 2003), p. 132.


28. Year after year, the Federal government’s prosecution of criminal cases demonstrates
a racial disparity. In 2004, for example, whites were only 30.2 percent (66,033) of all
persons convicted federally.33 Since immigration criminal cases (which were 22.6 percent
of all cases) may involve a disproportionate number of non-whites that may distort the
29. Drug cases demonstrate an even more egregious racial disparity that does not appear
to be justified. Drug use seems to be fairly consistent across races. But almost threequarters of all federal narcotics cases are filed against blacks and Hispanics – many of
which are low-level offenders - only one in four is white (27 percent in 2004).34
30. Although federal drug law enforcement authorities state that their priority is the
targeting of major trafficking organizations and drug “kingpins,” the reality is that
enforcement has been primarily waged against low level street dealers, resulting in much
longer sentences for low-level sellers than for wholesale drug suppliers who provide the
powdered cocaine from which the crack is produced. Indeed, street level crack sellers
receive similar sentences to interstate powder cocaine dealers, and interstate crack
offenders receive average sentences longer than international powder cocaine traffickers.
31. The original purpose of the cocaine sentencing scheme was to ensure mandatory
sentences for major and serious traffickers – heads of drug organizations and those
involved in preparing and packaging crack cocaine in “substantial street quantities.”
Congress calibrated the sentencing structure based on drug quantities which were
believed to reflect different roles in the drug trade. But in its effort to swiftly address
rising concern over crack cocaine, the numbers became skewed. The five and fifty grams
that trigger mandatory five- and ten-year sentences are indicative of street-level peddlers,
not major or even mid-level participants in the drug trade.35 Indeed, few cocaine
offenders prosecuted in the federal system are traffickers, those for whom the law was
intended. Two-thirds of all federal crack cocaine offenders prosecuted in the federal
system in 2000 were street-level sellers, or people simply in possession of crack cocaine
for personal use.36 Only 15 percent of the federal sentences for cocaine offenses are of
managers and organizers of the cocaine trafficking enterprise.
32. In 2004, whites were only 7.6 percent of the 4,928 federal crack cocaine defendants,
while blacks were 82.4 percent. For the 5,354 powder cocaine offenses, whites
represented only 16.7 percent of the federal defendants, in both instances substantially
below the average for whites in the criminal justice system or in the drug trade.
33. In its General Comment No. 18, the Committee points to Article 1 of the
International Convention on the Elimination of All Forms of Racial Discrimination, for
guidance as to what constitutes “discrimination.” As the General Comment notes, the
ICERD provides that the terms “racial discrimination” shall mean any distinction,
USSC (1997), at p. 5.



exclusion, restriction or preference based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in
the political, economic, social, cultural or any other field of public life.” [Emphasis
34. Current U.S. constitutional interpretation makes it very difficult to remedy racial
discrimination in the U.S. criminal justice system because of the requirement to prove
intentional discriminatory conduct. In reality, as opposed to discrimination by an overt
actor, many of the disparities in today’s criminal justice system arise from institutional
and structural inequities, which manifest in discriminatory impacts against minority
35. While it has not been legally established that the United States Congress acted with
discriminatory intent when enacting the drug laws during the 1980’s, the discriminatory
impact of the application of these laws is clear. Mandatory minimum sentences
particularly the crack/powder differential, represent one of the most flagrant examples of
a law that, on its face, is neutral, but whose impact is discriminatory. Given the
Committee’s definition of discrimination in its General Comment No. 18, these laws
clearly contravene Article 26 of the ICCPR.

The US should end all mandatory sentences.


Penalties for the possession and distribution of crack cocaine should be equivalent to
those for the possession of powder cocaine.


All new sentencing laws should require an analysis of their racial impact before

Conditions within Domestic Prisons and Jails
36. The United States has almost 2.3 million people in its prisons, jails, immigration
detention and juvenile facilities. Most prisoners are held in seriously overcrowded
facilities. For example, Federal prisons (under the direct control of the United States
government) hold 140% of the number of people they were designed for, Alabama state
facilities hold 205% of design capacity and California prisons 203%37 -- Avenal State
Prison in California designed to house 2,320 prisoners currently houses 7,062 and the
Deuel Vocational Institution designed for 1,681 currently houses 3,748.38


Harrison, P.M. & Beck, A.J. (2005). Prisoners in 2004. United States Department of Justice, Bureau of
Justice Statistics.
California Department of Corrections and Rehabilitation,


37. Such endemic overcrowding leads to greater levels of violence, lack of privacy,
excessive noise, inadequate programs and essential services, including healthcare. It is
impossible to subject people to those conditions and at the same time to treat them with
humanity and with respect for the inherent dignity of the human person as required by
Article 10 of the ICCPR.
38. Overcrowding also exacerbates the many other problems faced by prisoners and
described in more detail below, all of which subject prisoners to cruel, inhuman or
degrading punishment prohibited under Article 7 of the ICCPR.
39. In its report to the Committee, the United States’ emphasis under both Articles 7 and
10 is on the prosecution of those found to have contravened federal law yet the number of
law suits in this area brought by the government is declining and the Prison Litigation
Reform Act continues to severely restrict the access of prisoners to the courts. With the
single exception of the Prison Rape Elimination Act, there is no discussion in the report
of ways to prevent abuses occurring nor of any training for state and private prison staff
on their obligations under the ICCPR. There are no national mechanisms in place to set
standards for the treatment of people deprived of liberty or to provide oversight and
40. Criminal prosecutions for abuse of prisoners are a rarely used and ineffective tool.
William Yeomans, a former Chief of Staff in the Department of Justice Civil Rights
Division, described some of the reasons for declining government prosecutions at a
recent hearing of the Commission on Safety and Abuse in America’s Prisons.39 The Civil
Rights Division can prosecute criminally state and local officials who deprive persons of
rights protected by the Constitution and laws of the United States. However, it is difficult
to convict a corrections officer in a trial in front of a jury without overwhelming
circumstantial and forensic evidence, a videotape or a cooperating correctional officer.
Criminal prosecutions are too few in number to result in systemic change.
41. The Civil Rights Division Special Litigation Section also enforces the Civil Rights of
Institutionalized Persons Act (CRIPA) which gives the United States authority to initiate
litigation to remedy egregious conditions in prison and jails that violate the Constitution
or laws of the United States. However, the number of different facilities that are covered
under CRIPA (including nursing homes and juvenile facilities) and the limited resources
and wide responsibilities of the Special Litigation Section, as well as the restrictions
imposed by the Prison Litigation Reform Act, have severely limited the effectiveness of
CRIPA in recent years. The federal courts have traditionally provided a means by which
prisoners can gain relief from cruel, inhuman and degrading treatment. However, the
Prison Litigation Reform Act (PLRA) of 1996 has seriously restricted the ability of the
courts to take effective action.
Particularly egregious is the PLRA’s provision
establishing that “no federal civil action may be brought by a prisoner for mental or

Statement of William R. Yeomans Regarding The Role of the Civil Rights Division of the United States
Department of Justice in Addressing Conditions in Prisons and Jails to the Commission on Safety and
Abuse in America’s Prisons, Los Angeles hearing, February 2006, available at


emotional injury….without a prior showing of physical injury.” Courts have used this
provision to dismiss cases involving forcible strip searches, body cavity searches and
even sexual abuse, as well as other complaints of inhuman and degrading conditions of
confinement. Similarly, the federal courts have dismissed claims involving confinement
in filthy cells, unnecessary shackling of prisoners’ hands and feet while they are in
solitary confinement, and confinement in cells so small that the prisoners could not sit
down, as well as claims that prisoners were denied any water to take care of their
personal hygiene needs, and even claims that prisoners were wrongfully not released
from jail.
42. Despite the many thousands of prisons and jails in the country and the fact that the
Department receives more than 5000 written complaints every year regarding conditions
in prisons and jails, in 2004 it opened only one new investigation into a prison or jail
case, and it filed only one case in court.40 In 2003, no new prison or jail cases were filed.
Since 2002, not a single Department of Justice investigation of a prison or jail has
resulted in an enforceable court order. In the entire period 2002 – 2004 the Department
of Justice took action to enforce existing court orders in only one prison or jail case.

The United States should develop national standards for the treatment of people
deprived of liberty with a national system of independent oversight to measure
adherence to those standards.


The United States should amend the Prison Litigation Reform Act to remove the
language that denies claims from prisoners, pretrial detainees, and juvenile detainees
who suffer torture or cruel, inhuman and degrading treatment that does not involve
physical injury

Treatment of the Mentally Ill
43. The stressful conditions within overcrowded prisons are particularly damaging to
those subject to emotional and psychiatric problems. As a result of policy decisions that
closed state hospitals without providing adequate community alternatives, there are now
three times as many men and women with mental illness in United States prisons as there
are in mental health hospitals.41 The rate of mental illness in the prison population, one
in six United States prisoners is mentally ill, is three times higher than in the general
population creating a grave problem recognized by many corrections administrators.42
Many of them suffer from serious illnesses such as schizophrenia, bipolar disorder, and

Department of Justice Activities Under the Civil Rights of Institutionalized Persons Act, Fiscal Year
2004, available at
Abramsky, S. and Fellner, J. (2002). Ill-Equipped: US Prisons and Offenders with Mental Illness, Human
Rights Watch.
Ditton, P.M. (1999). Mental Health and Treatment of Inmates and Probationers, United States
Department of Justice: Bureau of Justice Statistics.


major depression. Almost one quarter of women in prison and jail have been identified
as mentally ill. A recent study of youth in detention in Cook County Illinois found that
nearly two-thirds of the boys and three-quarters of the girls met diagnostic criteria for one
or more psychiatric disorders and more than 10% of boys and 13% of girls had cooccurring major mental disorders and substance abuse problems.43 Because of
inadequate psychiatric care and inadequate training of prison staff, the mentally ill are at
risk of elevated levels of violence against them by prisoners and staff.
44. Persons suffering with mental illness are also often punished more harshly as a result
of their condition. For example, in Georgia’s Phillips State Prison, mentally ill inmates
are typically punished for infractions that often reflect symptoms of mental illness by
being locked down in isolation, typically for two or three weeks at a time, but sometimes
longer.44 In New York, by the state’s own estimate, approximately one-fifth (821) of the
prisoners in disciplinary lockdown are recognized as needing treatment for mental illness.
Yet, they are locked in a cell 23 hours a day with little natural light, minimal human
contact, few activities and have only limited mental health services available to them.
Because New York places no limit on the amount of time a person can be sentenced to
disciplinary lockdown, prisoners with serious mental illness can spend years in social

All prisoners with mental illness should be removed from facilities where they are
locked down for 23-hours a day.
National standards should require sufficient numbers of adequately trained staff,
appropriate psychiatric care and housing facilities to ensure the humane treatment of
mentally ill prisoners.

Super Maximum Security “Supermax” Prisons
45. There are currently estimated to be near 60 supermax prisons in the United States
housing approximately 20,000 prisoners. In these prisons, people spend a minimum of 23
hours a day in small cells, usually alone, with limited activities, sensory deprivation,
almost no interaction with other people, and harsh security restrictions. The very design
of these facilities denies the humanity and dignity of those who are held within them and
nothing done within them is designed to rehabilitate. For these reasons and other
discussed below, the use of supermax prisons is a contravention of Article 10.


Telplin, Linda A., et al, Psychiatric Disorders of Youth in Detention, (2006) US Department of Justice,
Office of Juvenile Justice and Delinquency Prevention
Fluellen v. Wetherington, First Amended Complaint, Civil Case No. 1:02-CV-479 (JEC) (N.D. Georgia,
March 15, 2002), p. 22. Quoted in Ill-Equipped: US Prisons and Offenders with Mental Illness, Human
Rights Watch.
Mental Health in the House of Corrections: A study of mental health care in New York State Prisons by
the Correctional Association of New York, June 2004.


46. The Federal Bureau of Prisons’ own supermax is the ADX unit at Florence, Colorado
where about one third of the prisoners are held in solitary confinement.46 Prisoners
remain in their 7 foot by 12 foot soundproof cells for a minimum of 23 hours a day with
no view of the outside world, have no contact with other prisoners and only minimal
contact with prison guards as they are strip searched before and after they leave the cell
for their one hour of solitary exercise in the small concrete triangular recreation area
knows as “the dog run.” The cells contain a bed, desk and stool made of concrete and a
toilet and shower. Food is delivered through a slit in the solid cell door. There are 1,400
remote-controlled steel doors. Motion detectors and hidden cameras monitor every move.
The prison walls and razor-wired grounds are patrolled by laser beams and dogs.
47. According to court papers, the Boscobel unit of the Wisconsin state supermax
required that prisoners spend day and night confined to single-person cells sealed with a
solid door that opened onto an empty vestibule. The cells were illuminated twenty-four
hours a day, and only a little natural light entered the cells through a small strip of glass
at the top of the cell wall. Inmates were allowed four hours of exercise per week in an
empty cell that was slightly bigger than a regular cell, contained no windows or
equipment, and was too small for jogging. Prisoners had no access to outdoor exercise
facilities. Their personal possessions were severely restricted. They were allowed only
one six-minute telephone call a month, and were not allowed to participate in any prison
programs. Mentally ill prisoners were included among the prisoners confined under these
48. Mentally ill prisoners, whose behavior makes them difficult to manage in general
population, all too often end up inside supermax prisons. In the case against Boscobel,
the court noted,
rather than being supplied the programming, human contact and psychiatric
support that seriously mentally ill inmates needed to prevent their illnesses from
escalating, inmates at supermax are kept isolated from all other humans, whether
guards, other inmates or family members. Many of the severe conditions serve no
legitimate penological interest; they can only be considered punishment for
punishment's sake.
The court identified some of the super-maximum features that were particularly
damaging to inmates with serious mental illnesses, including almost total isolation and
sensory deprivation as well as the lack of programming.47 The court in Wisconsin, as in
Ohio and California, demanded an end to the incarceration of the mentally ill in
supermaxes, but given the arbitrary nature by which classifications to supermaxes are
made, with no objective criteria nor outside oversight, it is difficult to know if this ruling
is being abided.


This is the facility to which convicted terrorist Zacarias Moussaoui was recently sentenced for life.
Court findings quoted in Human Rights Watch World Report 2003: United States



No mentally ill people should ever be confined in supermax prisons.


The use of supermax prisons should be strictly limited and their conditions changed
to be healthy and humane and respectful of human dignity.

The Abuse of Women Prisoners
49. The number of women in prison has in recent years grown at an even faster rate than
the number of men,48 yet prison systems continue to be designed and operated for male
prisoners with little attention paid to the specific issues confronted by female
incarceration. Many of the problems they face, including sexual abuse, inadequate
general healthcare and particularly inadequate obstetric care, will be described in more
detail in other reports to be provided to the Committee. The Committee’s attention is
drawn in particular to the reports submitted by the coalition of groups covering gender
equity issues which discusses issues related to healthcare for women, and to the report
submitted by a coalition of Californian human rights groups. While the latter report
focuses on conditions for women in California prisons (third largest prison system in the
United States after the federal and Texas state systems), the problems it describes are
seen in prisons throughout the country. As documented by Amnesty International,
women in 23 state prison systems and the federal bureau of prisons who give birth while
in prison continue to be subjected to cruel, inhuman and degrading punishment by the use
of restraints, including leg irons and shackles, during labor and child birth.49 Male guards
are used throughout women’s prisons in the US. While many states say they limit the use
of cross-gender searches or the presence of male guards in women’s bathrooms, the
Federal Bureau of Prisons does not put any restrictions at all on the duties of male guards.
For women, many of whom have been victims of physical and sexual abuse prior to their
imprisonment, this is cruel and inhuman treatment and a complete denial of their human
50. The use of private, for-profit prisons raises significant human rights concerns. A
system which treats people as commodities to be warehoused by the lowest bidder and
allows profits to be made off the deprivation of liberty denies respect for the inherent
human dignity of its prisoners. For women in private prisons, the inhumanity is even
greater. Most women in prison were the primary caretakers for young children prior to
their incarceration and retaining links with those children is of vital importance to them
during their incarceration. Many states have prisons at great distance from the large
cities which were home to most prisoners prior to incarceration. However, those people
imprisoned in for-profit prisons are more likely to be incarcerated in another state many
thousands of miles from home. These distances make travel for visits impossible for
many families who are already struggling with entrenched poverty.


Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women, Amnesty
International, March 2006

For more detailed information on the sexual abuse of prisoners, both male and female, the Committee is
referred to the shadow report submitted by Stop Prisoner Rape.


51. There are women from Hawaii currently imprisoned in Kentucky, more than 4,000
miles away. Kentucky is only their latest stop as they have been shifted from one state
prison to another. In the late 1990's, some of the Hawaii state prison system, including
the Women’s Prison on the island of Oahu, was under a court order which limited the
number of women who could be confined in that facility. Faced with an increasing
number of sentenced prisoners, the state corrections officials transferred 64 women
prisoners to a private prison in Crystal City, Texas, a small town not far from the
Mexican border. After almost two years of significant problems at this facility
(inadequate medical care, no hot water, and no dining room) the women were transferred
to a private prison in Oklahoma where more problems arose. In a few years they were
transferred to a private prison in Colorado where there were claims of sexual abuse by
guards, and where the prison was finally condemned by the Colorado Attorney General.
The women were then transferred to a private prison in Kentucky in 2005 and there have
been claims of serious problems with medical care, including the death of one woman. At
each of these facilities, there have been almost no family visits for the prisoners, many of
whom have small children. Even telephone calls are prohibitively expensive as a
substantial surcharge is added to the cost of the calls which the families have to pay.
Moreover, there has been almost no oversight by Hawaiian officials.

The US should follow international standards and end the employment of male guards
in women’s prisons.


The US should end the use of restraints on women in labor.


The US should end the practice of sending women with young children to out-of-state
private for-profit prisons.

52. The United States fails to recognize the right of children in conflict with the law to
special protection, care and aid (as provided by Article 24 of the ICCPR). State
legislation routinely allows children, in some cases as young as ten years old, to be
subject to adult criminal proceedings. In the last two decades, state legislation in the
United States has made it progressively easier to transfer a child to criminal court.
Although the practice varies by state, generally children accused of a crime can enter
criminal court jurisdiction in one of three ways: 1) judicial waiver, 2) prosecutorial
waiver, or 3) statutory waiver. A judicial waiver gives the judge the opportunity to
conduct a transfer hearing for the child before criminal court jurisdiction attaches. A
prosecutorial waiver gives the prosecutor discretion to file certain charges directly in
criminal court.51 A statutory waiver automatically grants criminal court jurisdiction over

This type of procedure is also often called “direct file.” Prosecutors have the discretion to file charges
against a child directly in criminal court in the following states: Arizona, Arkansas, Colorado, the District


juveniles based on either the type of offense or their age.52 Once in the jurisdiction of
criminal court, child offenders lose the protections that they would have received in the
juvenile court.
53. Because of the increased transfer of children into the adult criminal justice system, in
2003 there were 3,006 children in state prisons and 6,869 in adult jails (5,484 serving
sentences as adults, 1,385 as juveniles).53 When the United States ratified the ICCPR, it
attached a limiting reservation stipulating that it “reserve[d] the right, in exceptional
circumstances, to treat juveniles as adults.” Clearly, however, the circumstances in which
children are treated as adults is far from exceptional, even in the case of the most extreme
sentence to which they are subjected, life in prison without the possibility of release.
54. Over 2,000 people in the United States are serving life sentences without the
possibility of release for crimes they committed when under the age of eighteen.54
Currently, forty-two states, and the federal system, provide for a possible sentence of life
without possibility of release for children.55 In many states, such treatment has become
routine and automatic; life sentences are not even reserved for the most egregious of
juvenile offences or only repeat offenders. Often, children sentenced to life without
parole have no criminal history whatsoever; for many children, the crime for which they
were convicted represented their first encounter with the criminal justice system.56 In

of Columbia, Florida, Georgia, Louisiana, Massachusetts, Michigan, Montana, Nebraska, Oklahoma,
Vermont, Virginia, and Wyoming. See Griffin, Patrick et al., Trying Juveniles as Adults in Criminal Court:
An Analysis of State Transfer Provisions, U.S. Dept. of Justice, Office of Justice Programs, Office of
Juvenile Justice and Delinquency Prevention (Dec. 1998), available at
This type of procedure is also often called “automatic transfer.” Twenty-eight states have automatic
transfer provisions, either based on age, type of offense, or both: Alabama, Alaska, Arizona, Delaware,
Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Minnesota,
Mississippi, Montana, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, South
Carolina, South Dakota, Utah, Vermont, Washington, and Wisconsin. See Griffin, Patrick et al., Trying
Juveniles as Adults in Criminal Court: An Analysis of State Transfer Provisions, U.S. Dept. of Justice,
Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (Dec. 1998), available at
Harrison, P.M. & Karberg, J.C. (2004). Prison and Jail Inmates at Mid Year 2003. United States
Department of Justice, Bureau of Justice Statistics. In addition to those in adult prisons and jails, more than
102,000 children are detained in juvenile facilities.
Human Rights Watch & Amnesty International, The Rest of Their Lives: Life Without Parole for Child
Offenders in the United States (June 2005), available at
(hereinafter “The Rest of Their Lives”) Due to inadequate and often nonexistent recording procedures, this
number could potentially be much greater.
The states with the possibility of LWOP sentences for child offenders include: Alabama, Arizona,
Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada,
New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode
Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin,
and Wyoming. All states and the federal system permit the transfer of children to criminal court in some
circumstances. The Rest of Their Lives at 17.
The Rest of Their Lives (noting that research “suggests that 59 percent of youth offenders received a life
without parole sentence for their first-ever criminal conviction of any sort”).


many states, children also are subject to mandatory sentences of life without parole based
on felony murders or aiding and abetting in a murder.
55. Research also demonstrates that life without parole sentences for children are not
uniformly applied. Because laws vary by state, whether a child will face this extreme
sentence depends on his or her geographic location. Additionally, the racial disparities
observed in these sentences are particularly troubling. For instance, 60% of youth
offenders serving life without parole sentences are African-American, while only 29%
are white. Taking into account the demographics of the youth population in the United
States as a whole, these figures mean that black children receive life without parole
sentences ten times more often than white children.
56. In some states, these figures are even more disconcerting. In Michigan, for example,
out of 307 child offenders currently serving life without parole sentences, 211 (69%) are
African-American, while African-Americans only constitute 15% of the entire youth
population in Michigan. In California, African-American children are 22.5 times more
likely to be serving a sentence of life without parole than white children.
57. The laws and practice of the United States in permitting sentences of life without the
possibility of release for children constitute cruel, inhuman, or degrading treatment or
punishment in violation of Article 7 of the ICCPR.57 (The attention of the Committee is
drawn to the shadow report submitted by Human Rights Advocates analyzing the
sentence of life imprisonment without possibility of release for children as a violation of
customary international law).
International norms recognize that children are less
culpable than adults, both morally and legally. Entering prison in their formative years,
children face a psychological and mental agony that even adult prisoners facing a life
without parole sentence do not experience. As a result of their age, child offenders also
face longer sentences than adults who have committed similar crimes. Suicide rates of
children in the adult system are eight times higher than those of children in the juvenile
system.58 Children in the adult system are also much more susceptible to physical and
sexual abuse by prison guards and adult prisoners.59
58. Article 10 of the ICCPR requires that children, both before trial and post-conviction,
be segregated from adults in prison facilities. Article 10(3) mandates that children
offenders “shall be segregated from adults and be accorded treatment appropriate to their
age and legal status.” Children offenders, especially those sentenced to life without the
possibility of release, are routinely confined in the same facilities as adult offenders.
59. Article 14(4) of the ICCPR requires that in the adjudication of a child accused of a
crime, “the procedure shall be such as will take account of their age and the desirability

ICCPR, Article 7.
Austin, James, Kelly Johnson & Maria Gregoriou, Juveniles in Adult Prisons and Jails: a National
Assessment. U.S. Dept. of Justice, Bureau of Justice Assistance (Oct. 2000).
See. e.g., Second Chances: Juveniles Serving Life Without Parole in Michigan Prisons. ACLU of
Michigan (2004) at 18, citing Forst, Fagan, and Vivona, Youth in Prisons and State Training Schools, 39
Juvenile and Family Court Journal 1-14 (1989) (documenting sexual abuse).


of promoting their rehabilitation.”60 A life sentence without the possibility of release
offers no opportunity for rehabilitation, in express violation of Article 14(4). By their
very nature, a rehabilitative function plays no part in statutory or prosecutorial waivers of
juveniles into the adult criminal justice system.




The United States should end automatic transfer of juveniles into adult court and not
allow prosecutors unfettered decision making power to charge children as adults. The
determination to charge a child as an adult must be made on an individual basis.
All children under the age of 18 (whether charged as a juvenile or an adult) should be
held in a facility apart from adults and provided with programs, healthcare and
education appropriate to their age and designed to promote their rehabilitation.
Children should never be given life sentences without the possibility of release.

ICCPR, Article 14(4).