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Ensuring Rights for All Realizing Human Rights for Prisoners Deborah labelle.pdf

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Ensuring Rights for All:
Realizing Human Rights
for Prisoners *
Deborah LaBelle


hen photographs depicted American soldiers, in the spring of 2004,
degrading and torturing Iraqi citizens in the Abu Ghraib prison in Iraq, the
actions garnered worldwide condemnation as human rights abuses. However, attempts by criminal justice advocates in the United States to parley this
condemnation into recognition of the existence of human rights violations in
prisons in the United States were largely unsuccessful. Despite the commonality of the abuse of prisoners in Iraq by American personnel—a number of
whom had employment histories in U.S. prisons—with the abuse taking place
in American prisons, the latter abuse has occasioned little censure, leading
prisoners’ rights advocates to decry the lack of recognition of human rights
violations committed against American prisoners held in prisons and jails in
the United States.
While reports of abuses in the United States have failed to elicit expressions of official outrage and disgust, Secretary of Defense Donald Rumsfeld
responded to photographs revealing naked Iraqi prisoners shackled or
hooded, with smiling American staff looking on, by characterizing the treatment as “fundamentally un-American,” “blatantly sadistic, cruel and inhumane.” Longtime advocate for humane treatment of prisoners and director
of the American Civil Liberties Union National Prison Project Elizabeth L.
Alexander pointed out to the media, in response to the disclosure of abuse
of prisoners in Iraq, that, “Beating prisoners, sexually abusing prisoners all
of those things go on in American prisons.” In contrast to the official response that abuse of Iraqi prisoners constituted human rights abuses, the
official response to allegations of similar abuse in state prisons in Michigan,
*Reprinted with the permission of the Greenwood Publishing Group



was to focus on the status of prisoners as warranting less humane treatment,
asserting that:
They [prisoners] should have thought before they robbed, raped, and killed
people. I mean, that’s what these prisoners have done. These aren’t people who
have human identity. They are prisoners . . . they have committed sins, cardinal
sins, original sins, against Michigan’s citizens.1

How is it that the mistreatment of prisoners who had officially been labeled
as “enemy combatants” and “terrorists” was recognized as a human rights
violation while the very concept of human rights for incarcerated American
citizens has been routinely rejected based on their lesser status as prisoners?
By focusing on the status of the victim, and not on an objective standard
of humane treatment, prison officials in the United States are all too often
able to avoid adherence to a standard of care that is not mutable based on
circumstances or the object of the abuse. In contrast, international human
rights documents provide standards based on the nondefeasible humanness
of the object of the challenged treatment. Despite the alleged “sins” of the
prisoner, human rights treaties maintain the recognition of the individual as
a human being entitled to basic dignity and rights accorded to all individuals
based solely on their humanity.
Treatment of prisoners in the United States, in contrast, has always been
diminished by the construct that in addition to losing civil and political rights
occasioned by violating laws, those detained in jails and prisons, are reduced
to a lesser human status. Having violated the social contract, they are regarded
as diminished beings, not entitled to the rights that are accorded good citizens.
The common official terms used are “inmate,” “offender,” “prisoner,” or
“criminal,” never the designation of “incarcerated citizen” routinely used by
the Canadian courts, for example, when analyzing claims of rights violations
in Canadian prisons
Over 2 million people are held in prisons, jails, and detention facilities in
the United States, and the last decade saw the prison population more than
double. Many states’ budgets for operating prisons, jails, and parole supervision systems now outstrip all but the general fund, and well exceed budgets
for education and health services. The rising costs are a reflection of rising
numbers of people detained for longer periods of time, not an increase in
expenditures for humane treatment. Without a human rights framework creating a baseline for humane treatment, the increasing numbers of people who
are incarcerated are at the mercy of the changing social doctrines on the origins of crimes and resultant manner of punishment, protected only by equally
varying judicial interpretations of what constitutes the baseline for prohibited
unusual cruelty.
The absence of applicable human rights doctrines also endangers the humanity of those who operate the prisons and jails, a growing workforce in the
United States. Human rights doctrines contain the inherent recognition that
a failure to recognize the humanness of the object ultimately degrades the
humanity of those in control. As the military personnel captured on film in
the Abu Ghraib prison in Iraq were ultimately viewed as having degraded



themselves and brought shame on the United States, abuses in United States’
prisons demean the officers perpetrating the abuse. The impact of the abuse
extends beyond the object to alter the lives of staff, prisoners’ families, the
system, and our own humanity. The oft quoted reminder by Dostoyevsky
that, “the degree of civilization in a society can be judged by entering its
prisons” encompasses both a recognition of the duality of human rights and
a warning of the cost of ignoring its application to those regarded as least
entitled to its shield.
The example of Abu Ghraib evidences that, while abuses in the United
States are not commonly viewed through the lens of human rights obligations, nor has the language of human rights settled into our domestic justice
lexicon, advocates have begun to recognize this duality and the value of demanding transparency and adherence to international norms. This chapter
explores both the import of realizing human rights as the framework for ensuring humane treatment of prisoners in the United States and analyzes the
impact this strategy has had when used to address the mistreatment of women
prisoners and juveniles incarcerated in this country’s prisons and jails.

Penitentiaries came into broad use in this country in the 1820s, with a goal
of rehabilitation. Criminal activity was generally believed to be a result of a
failure of upbringing or social influences. As crime increased through the
nineteenth century, empathy waned and punishment replaced rehabilitation.
Both the length of confinement and the harshness of conditions increased
unabated as statutes enacted during the nineteenth century divested prisoners of civil and political rights on the theory that they ceased to exist as legal
persons after their conviction. These “civil death” statutes prohibited persons
convicted of a felony from bringing any civil action and prevented challenges
to the conditions of their confinement or treatment while incarcerated.2 Civil
death statutes had a long reign, lapsing into desuetude a hundred years later
with the concurrent rise of the prisoners’ rights movement. Described by
then as “archaic remnant(s) of an era which viewed inmates as being stripped
of their constitutional rights at the prison gate,”3 the elimination of the civil
death statute and the rise of the prisoner’s rights movement in the 1960s
paved the way for prisoners acting as “jailhouse lawyers” and civil rights lawyers to address mistreatment in U.S. prisons through litigation alleging violations of the Constitution.

The Rise of the Prisoners’ Rights Movement: 1960s–1980s
While most grassroots movements face organizational difficulties, building
a prisoners’ rights movement involved the additional difficulties of a community both disenfranchised and incarcerated. Prisoners’ inability to communicate freely with each other and restrictions on their communications with the
outside world made organization and movement building extremely difficult.



Challenges to these restrictions were consistently rejected by the courts, which
upheld prison rules prohibiting prisoner unions, limiting meetings and petitions by prisoners, and restricting visitation with the outside world.4 Throughout the early years of the movement, lawyers, who alone (with the exception
of clergy) had ready access to prisoners, became major contributors to the
movement and the call for humane treatment of prisoners.
Prisoners and their families worked with organizations such as the American
Friends Service Committee (which included prisoners in its Quaker mission
since its founding in 1917) and established CURE (Citizens United for
Rehabilitation of Errants) in 1972. However, the revolution in prisoners’
rights in the United States beginning in the 1960s through 1980s has traditionally been linked to a rising assertiveness of prisoners, particularly the black
Muslims, and the development of the civil rights lawyer.5 Prisoners and lawyers alike were influenced by the civil rights movement occurring in the free
world, and the federal courts were becoming responsive to lawyer-assisted
prisoner petitions, raising issues as diverse as freedom to practice religion in
prison to freedom from corporal punishment. Prisoners, most notably with
the riots at the Attica State Prison in New York in 1971, called attention to
their abysmal treatment, which included long-term isolation in dungeon-like
holes, beatings, inadequate food, racial discrimination, and rampant violence.
Government legal services funding and private foundation money made it
possible for lawyers to make expensive and time consuming legal challenges
to violation of the rights of economically and socially marginalized persons.
Armed with such funding, lawyers were able to go to court to argue the
constitutional rights of prisoners.
Early legal victories by lawyers challenging conditions of confinement of
prisoners were brought under the Federal Civil Rights Act, which enabled
prisoners to sue for violations of their constitutional right to be free from
cruel and unusual punishment under the Eighth Amendment. These victories paved the way for judicial intervention in the isolated and secretive prisons and jails of the United States, which had been operating with little oversight and less restraint. One of the early victories, brought initially by jailhouse
lawyers on behalf of prisoners in Arkansas and fought by court-appointed
counsel, concerned the constitutionality of the whip. While formal, authorized
corporal punishment, as a response to minor prison infractions, had been on
the wane in the 1960s, whippings still remained the primary ad hoc disciplinary tool in prisons where few privileges existed to take away and solitary
confinement space was limited. In the 1968 case Jackson v. Bishop, a panel of
three federal court judges held that use of routine whippings as a method of
controlling prisoners violated the Eighth Amendment ban on cruel and unusual punishment.6 The panel found the imposition of uncontrolled whippings to the bare skin of prisoners with a five-foot strap was inhumane and
barbarous. The court rejected the claim that the punishment was necessary
for discipline, noting that, “Corporal punishment generates hate toward the
keepers who punish and toward the system which permits it. It is degrading
to the punisher and to the punished alike.”
The next ten years saw a series of legal challenges to the mode of punishment, mistreatment, and restrictions on the rights of prisoners reach the



United States Supreme Court. In 1978, the Supreme Court returned to the
conditions of prisoners in Arkansas in Hutto v. Finney.7 Prisoners who had
been successful, ten years earlier, in ending the official use of electric shocks
and physical beatings as methods of discipline and punishment now challenged their incarceration in eight-by-ten-foot windowless cells for indeterminate periods of time as violative of the Eighth Amendment’s proscription
against cruel and unusual punishment. Prisoners were successful in arguing
that the Eighth Amendment prevents more than physically barbarous punishment. The Supreme Court found that the Eighth Amendment prohibits
penalties that are grossly disproportionate to the offense, as well as those that
transgress broad and idealistic concepts of dignity, civilized standards, humanity, and decency. Depending on the infraction, the length of time prisoners were kept in a hole and the conditions under which they were maintained,
nonphysical punishment could contravene the Eighth Amendment’s proscription against cruel and unusual punishment.
The Hutto case followed a series of decisions which recognized that while
imprisonment necessarily made unavailable many rights and privileges of the
ordinary citizen, a prisoner is not wholly stripped of constitutional protections
when he is imprisoned for a crime and edged toward an understanding that
prisoners were entitled to be treated in a nondegrading manner. In a talisman
phrase, the Supreme Court in the 1974 case Wolff v. McDonnell opined that,
“though his rights may be diminished by the needs and exigencies of the institutional environment, there is no iron curtain drawn between the Constitution
and the prisons of this country.”8 In a series of cases from the late 1960s through
the mid-1970s, the Supreme Court expanded prisoners’ rights, recognizing
prisoners’ religious freedom, the right to access to the courts, and protection
from invidious race discrimination. Prisoners were also advised they could
claim the protections of the due process clause in circumstances depriving them
of life, liberty, or property and could not be denied basic medical care.9
The general principle that prisoners do not forfeit all of their rights under
the Constitution upon incarceration was now firmly established. But what
rights remained and how to balance the rights of prisoners with their status and
the needs of security remained to be carved out in a series of fact-dependant
cases. The Supreme Court held that a prisoner retains the right to marry and
some freedom of expression in the case of Turner v. Safely.10 The same year
the Court upheld a prisoner’s’ right to freedom of religion in O’Lone v. Estate
of Shabazz.11 However, both of these significant rulings were five-to-four
decisions, presaging the retrenchment of prisoners’ rights that was on the
horizon. Many states continued to operate systems that were blatantly racist,
with routine reports of beatings, rapes, and intolerable conditions of confinement. Before Supreme Court rulings issued in the 1970s and 1980s could
take force or become institutionalized policy, the judicial pendulum began to
swing the other way.

More Prisoners, Fewer Rights: 1990s Onward
Over the next ten years, just as the U.S. prison population began to soar,
the Supreme Court retreated from protecting prisoners’ rights. The Court



introduced new legal concepts that undermined Eighth Amendment protections. It also expressed concern about overinvolvement of the federal judiciary in the operation of states’ prisons and showed increasing deference to
prison officials. At the same time, previously effective mechanisms for challenging mistreatment were severely restricted by federal legislation and conservative courts.
In the 1990s, Supreme Court prisoners’ rights cases largely deferred to
arguments that punishments were necessary to maintain a correctional facility. Institutions’ “penalogical objectives” of “security” and “order” became
relevant concerns for determining whether the punishment being challenged
was cruel or unusual. Taking their cue from the Supreme Court, many appellate courts overturned trial court remedial orders based on their lack of deference to prison authorities.12 The decisions raised the specter of inmate violence and concerns for public safety should prison officials be constrained in
the manner they operated prisons, including their ability to restrict prisoners’
rights and the manner in which noncorporal punishment was meted out.
Gone were the acknowledgments of the reality that cruel treatment begot
violence and forgotten was the cause of the violence at Attica prison. Instead,
it was opined that harsh treatment was necessary to prevent future violence.
The Supreme Court also failed to adhere to the Eighth Amendment as an
objective standard for humane treatment in a civilized society. Instead, a new
element crept into the analysis of whether punishment was cruel or unusual—
whether prison officials, in meting out the challenged punishment, had a
culpable state of mind. In the 1991 Supreme Court case Wilson v. Seiter,13
Justice Scalia held that treatment which could objectively be characterized as
abusive, inhumane, or degrading treatment would not violate the Constitution unless the punishment was implemented with a kind of knowingness—a
deliberate and wanton infliction of unnecessary pain.14 This opened the door
to justifying punishment that would otherwise rise to the level of torture or
other degrading treatment based on the motivations of the party inflicting
the punishment or necessities of correctional management. With an increasingly narrow interpretation of what constituted cruel and unusual punishment, prisoners had little left with which to tether their challenges of inhumane treatment.
With one notable exception in the 2002 case of a prisoner in Alabama who
challenged being handcuffed above his head to a hitching post in the sun
without water or breaks for seven hours at a time as punishment for a rule
infraction, following Wilson v. Seiter, the Supreme Court has found little to
chastize as punishment that violates the Eighth Amendment in U.S. prisons.
The hitching-post case also garnered a strong dissent, led by Justice Thomas
who opined that the legitimate penalogical purpose of encouraging compliance with prison rules took the punishment out of the constraints of the
Eighth Amendment. Justice Thomas’s extreme position also advocates for
restricting the Eighth Amendment’s proscription against cruel and unusual
punishment to the sentencing stage of the criminal justice process. He argues
that the Eighth Amendment’s protection is not applicable to claims of mistreatment or even torture during a prisoner’s incarceration. Instead, he argues that cruelty within the context of confinement is best addressed by a



sort of capitalist system of human rights in which the states would naturally
be concerned about real torture in prisons that lacked any legitimate penalogical purpose and regulate themselves.
Just as the Supreme Court became increasingly tolerant of ill treatment of
prisoners, government funding for legal services declined overall, and prohibitions were placed on the remaining legal service organizations receiving federal funding that specifically forbade representation of prisoners or challenges
to the conditions of their confinement. Foundation funding for direct legal
challenges, never large, became increasingly hard to obtain. New federal statutes created barriers to both prisoners’ and lawyers’ ability to complain about
conditions in America’s prisons.
Edging back to the days of civil death, the conservative majority of the
Supreme Court, in decisions like Lewis v. Casey,15 limited the access of jailhouse lawyers to basic books and tools for litigation. In addition, the federal
Prison Litigation Reform Act (PLRA) was past in 1996 to restrict prisoners’
access to the courts to challenge their treatment. Contrary to its moniker, the
PLRA was more akin to the civil death statutes of 100 years prior than the
provision of reform. Its goal was to strictly limit prisoners’ ability to file federal
litigation challenging the conditions of their confinement, their sentencing,
and their treatment by setting up onerous preconditions for filing lawsuits,
dramatically limiting available remedies and judicial oversight, and creating
disincentives to lawyers representing prisoners. Many states followed the federal legislation to enact their own state laws restricting not just challenges to
conditions, but also challenges to sentences and denials of release, all the
while increasing the length and severity of punishments.
With the loss of the courts as fair arbitrators of mistreatment of prisoners,
many advocates began focusing on education, media, and legislative strategies,
while understanding that the usual corporate concerns of cost-value analysis
are often inapplicable where the issue involves both fears surrounding public
safety and the rise of the prison industrial complex, which provided its own
impetus for continued prison buildups and resistance to outside oversight.
Simultaneously, the rehabilitation corrections mode of the 1980s, which
touted the use of vocational training and educational programs to rehabilitate
prisoners, faded with the increasing numbers and costs of incarceration. It
was replaced with the increased use of cold storage, super maximum facilities,
and increased isolation from the outside world. Prisons in the United States
had become a multibillion dollar industry. In 2006, the budget for state corrections facilities exceeded $50 billion per annum. It was this confluence of
factors that created fertile ground for developing a human rights analysis to
challenging inhumane treatment in U.S. prisons and jails.

Human Rights Response
International human rights documents and treaties establish basic principles for the treatment of individuals and encompass those incarcerated in
prisons, jails, and detention centers around the world. The Universal Declaration of Human Rights and the American Declaration of the Rights and
Duties of Man (1948); the UN Standard Minimum Rules for the Treatment



of Prisoners (1957); the International Covenant on Civil and Political Rights
(ICCPR) (1976); and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Convention Against
Torture) (1987) are the most frequently cited documents in human rights
reports concerning the treatment of individuals in detention.
However, prior to the 1990s, those documentation reports, created by
international human rights organizations, rarely included the United States
in their worldwide investigations of prison conditions. Either as a consequence
or perhaps as the rationale for their exclusion, international treaties and documents played little part in the advocacy in the United States for prisoners’
rights, which was waged, largely, by attorneys and jailhouse lawyers.
In 1987, however, Human Rights Watch (HRW) began a project which
enlisted several of its divisions in the investigation and documentation of the
treatment of prisoners with the goal of issuing a global report. In 1991,
HRW issued a breakout report titled Prison Conditions in the United States
with the worldwide report, Human Rights Watch Global Report on Prisons,
issued two years later. Similarly, Amnesty International began turning its attention to conditions in U.S. prisons in its investigation of compliance with
international documents in the prison context.
In 1993 when the United States underwent its first UN compliance review
following U.S. ratification of the ICCPR, another opportunity emerged to
use human rights standards to examine U.S. prison conditions. HRW, and
the traditionally American civil rights organization, the American Civil Liberties Union (ACLU), worked together to issue a report on U.S. compliance
with the ICCPR, urging enforcement of the ICCPR’s provisions with regard
to prison conditions in United States courts. The report relied heavily upon
federal judicial rulings, which had found many of the abuses also violated
U.S. constitutional norms, undermining the report’s assertion of the need for
enforcement of the ICCPR. However, the report’s concern with the federal
court’s tendency to diminish protections of prisoners based on their crimes
and its call for recognition of a guarantee of humane treatment irrespective of
the prisoner’s crime, presaged the events of the next decade which heightened
the need for a human rights framework to address abuse in United States’
The report contributed to a broader ongoing dialogue on the need to
scrutinize the United States’s compliance with international norms and address “U.S. exceptionalism” with particular emphasis on an area with diminishing protections under domestic constitutional instruments. The focus on
criminal justice issues—with its emphasis on torture, and racial and gender
discrimination of those in detention—provided a strong argument for the
relevancy of human rights documents, which specifically set minimum standards for many of these issues. The report ushered in a series of reports in the
late 1990s by Amnesty International and HRW on a number of prisoners’
rights issues, including custodial sexual abuse of women prisoners in American
prisons: All Too Familiar (1996), No Where to Hide (1998), and Not Part of
My Sentence (1999);16 the human rights violations against prisoners held in
SHU’s or super-maximum holding units examined in Cold Storage: Super Maximum (1997); and the violence endemic in men’s prisons, No Escape: Male



Rape in U.S. Prisons (1998). Amnesty International addressed many of these
issues in its 1998 report, Rights for All.
These reports created new opportunities for human rights organizations
and activists to collaborate with U.S. litigators and criminal justice advocates
on specific cases in a way that had not occurred previously in the United
States, although consistent with collaborations in other countries. The documentation reports were a crucial vehicle for introducing advocates for prison
reform, prisoners and their attorneys to human rights organizations and individuals working on the international stage and introducing a human rights
language and framework to the issue. For prisoners and their counsel, who had
rarely strayed from attempts to enforce “prisoners’ rights” using U.S. laws that
specifically limited the concept of rights to the diminished status of a prisoner,
the introduction of international rights documents and the glimpse into
other countries’ systems provided a number of insights that were to be instrumental in integrating human rights documents into prison reform work.
By limiting themselves to the concept of “prisoners’ rights,” advocates in
the United States had in some manner accepted a diminished status and standard of rights. This construct had also infected the actions of corrections officials who, viewing prisoners as lesser beings deserving a different standard
of humane treatment, accorded prisoners a degraded treatment in direct proportion to prison administration’s conception of prisoners as lesser beings.
With larger numbers of prisoners serving longer time and with less opportunity to challenge either their treatment or their sentence, prisoners’ rights
advocates from the critical resistance movement to lawyers and grassroots
advocates began to recognize that a different approach was necessary. The
issues being impacted by incarceration could not be encompassed within any
one legal theory or expertise. Incarceration affected youths and educators,
who challenged the school-to-prison pipeline, the disparate impact on children of color, and the loss of education funding which was being usurped by
building and operating prisons; mental health professionals, prisoners, and
family members, who recognized that prisons were increasingly incarcerating
people who were mentally ill as opposed to providing treatment; and activists
working on women’s rights and violence against women, who viewed the
cycle of abuse and self-medication as leading to incarceration and more abuse.
Incarceration posed obvious issues of race discrimination in the administration of the criminal justice system and the perpetuation of discriminatory
treatment inside and social and economic justice issues, including the impact
that incarceration was having on poor people and immigrants in the system.
It also raised concerns with violence targeting gays, lesbians, and transgender
persons incarcerated in jails and prisons.
The common language and the umbrella available in which to have a dialogue for remedial relief existed not in domestic legal theories or case law, but
in human rights treaties. With the recognition that large swaths of American
citizens would spend some part of their life in a prison or jail cell, relying
solely on diminishing “prisoners’ rights law” to challenge inhumane treatment
was neither appropriate nor tenable. The laws and treaties establishing baseline standards applicable to all persons took on a heightened relevance. Both
the difficulties and value of utilizing a human rights framework for domestic



challenges to the mistreatment of prisoners in the United States is explored
in the following two case studies involving the custodial abuse of women
prisoners in a state prison in Michigan and the sentencing of juveniles serving
life without possibility of parole sentences in American prisons.

In 1995, the Fourth World Conference on Women was held in Beijing,
and in April of that year, Felice Gaer of the U.S. delegation spoke the following words at the United Nations Conference on Human Rights: “Our task as
nations is clear; we must make our global human rights machinery expand
and adapt; we must shift from neglecting women’s issues, to mainstreaming
them; we must mobilize the will to stop the abuses facing women throughout the world, establish instruments of accountability and effective domestic
As the international community began focusing on the human rights of
women, domestic remedies for issues facing the rising population of women
prisoners in the United States were becoming progressively more difficult to
come by, and the number of women prisoners was skyrocketing. In 1980
there were 12,300 women in prisons in the United States. This number had
increased ten-fold, to 120,000, by the mid-1990s. By the year 2000, there
would be over 1 million women either behind bars or under the control of
the criminal justice system in the United States.
Groups with widely diverse interests began recognizing the toll on society
resulting from the increase in the incarceration of women, the vast majority
of whom were mothers and family caretakers. Incarceration of these women,
largely for nonviolent property and drug offenses, increased not only the corrections budget but impacted foster care and social services as their children
were placed in foster homes or agencies and chronically ill, disabled, or aged
family members sought replacement services for their caretakers. There was
also a growing awareness of the additional punishments inflicted on women
prisoners in the form of sexual and physical violence and the ripple effect the
resultant trauma had on their communities upon their release. Yet, there had
been neither widespread exposure of the abuse nor significant legal challenges to mistreatment of women prisoners.

Traditional Equal Protection Litigation
Previously, major prisoners’ rights litigation had focused on conditions for
men, who formed the majority of prisoners. Litigation on behalf of women
prisoners was limited to equal protection challenges to their denial of comparable educational and vocational training in prison and denial of gender-based
health care. Throughout the late 1970s and 1980s, rehabilitation and correctional opportunities for prisoners largely benefited male prisoners with the
provision of education, vocational training, and apprenticeships. Education
and skills training were provided based on the belief that rehabilitation of



prisoners depended on their obtaining bona fide occupational skills and that
such skills would best serve them to reintegrate into society thus decreasing
This approach was not, however, applied equally to women prisoners
based, in part, on a different rationale accepted for women prisoners’ status
as convicted felons. Historical explanations for female lawbreakers as gender
aberrants lingered through the 1980s in the United States, and the belief that
criminal behavior by women could be traced to a failed femininity guided the
rehabilitation programs for women. While male prisoners were receiving skills
dedicated to economic redemption, women prisoners were being schooled in
home economics, parenting classes, and models of obedience to reclaim their
The disparity in opportunity led a group of women prisoners in Michigan
to file the first class-action case on behalf of women prisoners. They argued
that their right to equal protection under the United States Constitution was
violated by the absence of similar rehabilitation opportunities as those being
provided to male prisoners. Their 1979 lawsuit, Glover v. Johnson,17 was successful, resulting in improved educational, vocational, and apprenticeship
training for women prisoners. However, it tied women prisoners’ future to
the treatment of male prisoners.
The problem with reliance on an equal protection model became evident
a few years later as programs for male prisoners were eliminated with the
decline of a rehabilitative corrections model in the United States. Because
their legal claim for rehabilitative programs was based on being treated the
same as men, after a few brief years of parity, women prisoners were once
again deprived of participation in any programming that would provide opportunity for rehabilitation. The legal strategy of using equal protection law
and addressing the problems with treatment of women prisoners through a
gender discrimination lens did not advance an independent model for the
treatment of prisoners based upon respect for their dignity and value as
human beings, concepts imbedded in human rights documents.
Moreover, some courts had taken aim at Glover v. Johnson, eroding its finding that women prisoners’ equal protection rights were violated when women
prisoners were provided inferior programming as compared to male prisoners. In Klinger v. Dept. of Corrections, upon review of an equal protection case
in which women prisoners in Nebraska challenged their denial of equal rehabilitation opportunities, the Eighth Circuit Court of Appeals approved the
existence of separate but unequal facilities for male and female prisoners,
reasoning that women prisoners were not similar situated to male prisoners
due to the different profile of women prisoners (being nonviolent) and their
lesser numbers.18 The court noted that women prisoners were generally single mothers with substance abuse histories, as compared to male prisoners
who were most often incarcerated for violent crimes and not the custodians
of children. The court used these gender differences as a basis to deny women
prisoners equal educational and program opportunities, rather than creating
a model of rehabilitative opportunity that addressed differences by enhancing
rehabilitative program choices. The court, after finding the male and female
prisoners to be different, rejected the women prisoners’ equal protection



claims stating, “dissimilar treatment of dissimilarly situated persons does not
violate equal protection.” Basically, the court asserted that only if two people
were identical and did not receive equal treatment could you challenge the
lesser treatment of one individual. The ruling moved the analysis of constitutional based rights even further away from an inclusive model of human rights
and dignity for all. As a final deterrent to relying solely on the Constitution
as a basis for challenging inhumane treatment of women prisoners, the PLRA
wound its way through the U.S. Congress to be signed into law in April 1996,
further limiting prisoners’ access to the courts.
Just as the limitations of the equal protection model and prisoners’ rights
litigation were becoming evident, human rights standards appeared to provide some models for the minimum standards for treatment of prisoners and
also a new perspective on increasing concern with endemic custodial sexual
abuse in women’s prisons in the United States. In addition to protections in
the ICCPR, the Convention Against Torture, and the UN Standard Minimum
Rules for the Treatment of Prisoners, the UN Declaration on the Elimination
of Violence Against Women prohibited any “degrading treatment or punishment . . . and any gender based violence that results in or is likely to result in
physical, sexual or psychological harm or suffering to women, including threats
of such acts, coercion, or arbitrary deprivation of liberty, whether occurring
in public or private life,” providing a framework based on universal values,
which codified core values of human dignity and equality available to all individuals including prisoners. Human rights documents, based solely on one’s
status of as a human, provided a core set of entitlements that could not be
truncated based upon incarceration, gender, or the changing perception of
how to handle convicted felons in America.

Sexual Abuse of Women Prisoners
It was in this milieu that women prisoners in Michigan decided to file a
class-action lawsuit seeking relief from years of sexual assaults, rapes, sexual
harassment, and retaliation by male guards and staff employed by the Michigan Department of Corrections. In light of the impending implementation
of the federal PLRA, cases were filed both in federal court and in state court
under Michigan’s Civil Rights Act in March 1996, arguing that sexual harassment, degrading treatment, and rapes of women and girl prisoners by male
custodial staff in Michigan had become endemic. The complaints alleged
hundreds of incidents ranging from prurient viewing of women while naked,
routine groping of women’s breasts and genitalia under the guise of security
pat-down searches, the common and constant use of sexually degrading and
demeaning language, and penetrative rapes. The lawsuits challenged the
treatment under standard constitutional and civil rights frameworks and
sought traditional remedies of injunctive relief and damages. Capitalizing on
the recent domestic restrictions on the rights of those in detention, the state
argued that both lawsuits should be dismissed because the federal suit was
impermissible under the newly passed PLRA and the state civil rights act,
which protected “all persons,” should not be read to include prisoners. The
lawsuits seemed destined to make the same arguments and follow a similar



trajectory as other women prisoners’ rights cases until human rights standards
and organizations began influencing advocacy around and within the lawsuit
When the Michigan lawsuits were filed, Human Rights Watch was in the
midst of conducting interviews in eleven state prisons for a report on the prevalence of sexual misconduct by male officers in authority over female prisoners. A year after the women prisoners filed suit, the United States Department of Justice joined the fray under its mandate to ensure the constitutional
treatment of institutionalized persons. Thus, three different groups—the
women prisoners themselves, the United States Department of Justice, and
Human Rights Watch—were all on the field at the same time, all utilizing
different frameworks from state to federal to international, to examine the
abusive treatment of women held in detention in Michigan prisons. All three
were to play central roles in the synthesis of the analysis and the resulting
remedies for women prisoners, which, in the end, relied heavily on international standards.
While both uninformed and dubious of the ultimate value of HRW’s
focus on violations of international standards and treaties that appeared unenforceable, the women prisoners and their lawyers cooperated with both
HRW and the DOJ by participating in interviews and responding to fact
finding requests. The DOJ attorneys were wary of HRW’s efforts because
they did not want to appear to concede the legal applicability of the international standards because the international treaties HRW relied upon either
had not been ratified by the United States or were ratified in a manner
that limited their enforceability in U.S. courts. They also viewed domestic
laws and statutes as adequate to ensure the humane treatment of the women
Attorneys for the women prisoners, who were struggling to obtain positive results under familiar state and federal civil rights statutes and constitutional law, were also skeptical of the value of international human rights law
in domestic courts. Historically, international human rights claims in U.S.
courts had been brought primarily by foreign nationals for harms suffered on
foreign soil, and there had been little development of international human
rights law based upon incidents that occurred in the United States against
domestic actors. In a climate where federal courts were increasingly unsympathetic to prisoners’ claims challenging conditions of confinement under
U.S. law, it seemed unlikely, at best, that the courts would be receptive to
challenges based on international laws, treaties, and standards that had heretofore not been enforced in the domestic context.19

Impact of HRW Report on the Litigation
Human Rights Watch concluded its interviews and research after two and
half years resulting in a documentation report released in December 2006
titled All Too Familiar: Sexual Abuse of Women Prisoners in United States Prisons. The report focused on five states including the state of Michigan. The
report found extensive sexual abuse being perpetrated against women prisoners
in U.S. state prisons. With regard to female prisoners in the Michigan system,



the report found widespread abuse including rape, sexual harassment, forced
abortions, privacy violations, and retaliation, noting that:
In the course of committing such gross misconduct, male officers have not only
used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners, to compel
them to have sex or, in other cases, to reward them for having done so. . . . In
addition to engaging in sex with prisoners, male officers have used mandatory
pat frisks or room searches to grope women’s breasts, buttocks and vaginal
areas and to view them inappropriately while in a state of undress in the housing
or bathroom areas. Male correctional officers and staff have also engaged in
regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often
highly sexualized and excessively hostile.

The HRW report addressed the sexual abuse in Michigan as violations of
the ICCPR (ratified by the United States in 1993), the Convention Against
Torture (ratified in 1994), and the Convention on the Elimination of All
Forms of Discrimination Against Women (Women’s Rights Convention) and
made recommendations based on international standards, including that
searches of women prisoners be conducted only by female staff and male officers announce their presence before entering women’s housing units, toilet,
or shower areas. These recommendations were echoed in Amnesty International’s 1998 report Rights for All on human rights violations in the United
The HRW report garnered significant national publicity but little local attention. However, its value to the litigation became readily apparent to the
women’s attorneys. Although, the report was not conceptualized with domestic litigation in mind (indeed Michigan was the only state under review in
which there was pending litigation), litigation with its judicial enforcement
mechanisms was the most effective way to implement the report’s remedial
At the beginning stages of the litigation, the report, compiled by an independent international organization after extensive interviews with women
prisoners and prison staff and documentation review, played an important
role in developing factual support for both the state and federal litigation.
The women’s attorneys used the detailed factual findings to inform the court
of the extent and range of abuses for purposes of demonstrating that there were
enough women harmed to justify class-action certification in the state case. The
validation of the complaint’s factual allegations by an independent organization diminished the state’s power to deny any problem and contributed to the
federal courts’ denial of the states’ motions to dismiss. The detailed report and
the media attention surrounding its release also made any dismissal of the suit
by the court, based upon the state’s mere denial, extremely unlikely.
In addition to providing factual support, the international standards referenced in the report also had a profound effect on the courts’ view and treatment of the case, both in terms of the applicable standards in the case and the
overall perception of the claim. While the complaints, at that time, contained
only allegations of violation of the state and federal constitutions and civil



rights statutes, the HRW report raised the specter of violations of international treaties and standards. The federal judge was cognizant of the question
of whether the United States domestic laws would prove to provide equal
and sufficient protection of the rights of the women prisoners as those provided
in international treaties and guaranteed by the majority of “peer” nation states
such that the rights had reached the status of customary international law.
Counsel also pointed out that if necessary, plaintiffs would seek to amend the
complaint to add claims based on international law and that a number of the
women prisoners were foreign nationals who might have a greater entitlement to the protections of the international documents signed and ratified by
their nation states.
Federal and state judges are also, understandably, fiercely protective of the
state and federal constitutions they have sworn to uphold. They often believe
that the constitutions provide (or should provide) sufficient protections for
the rights of all individuals, including prisoners. Judges are also not immune
from the general American perception that we provide leadership and, until
recently, are the standard bearer of civil and human rights around the world.
To have an international human rights organization assert that the treatment
of women prisoners violates international norms and standards and hold these
violations up to the world, placed the domestic courts in a situation of either
disregarding the findings of the report, or interpreting the United States Constitution to provide an adequate mechanism for remedying these violations.
The attorneys, by attaching the HRW report to court pleadings, also introduced an entirely new perspective on the treatment of women prisoners
in Michigan. The report provided a glimpse of possible remedial measures
both through the recommendations and through the opportunity to view
best practices in other states and countries. Educating the court early on that
there were jurisdictions that did not have the level of abuse that existed
in Michigan’s women’s prisons significantly diminished corrections officials’
standard second line of defense to challenges to conditions of confinement.
After denying the problem, corrections officials often defend a challenged
condition as an unavoidable consequence of housing dangerous felons and
resisted remedial measures as incompatible with penalogical objectives and security concerns. Information that other countries and states have managed to
house their women prisoners without pervasive sexual abuse by male guards
allowed the court to disregard this defense without impermissibly failing to
give deference to the expertise of corrections management. As discussed
below, the information about international standards and practices also would
have a profound influence on the shaping of remedies in the case.
The HRW report, as introduced by the plaintiffs in the federal and state
litigation, also provided a more intangible but no less important benefit to the
domestic litigation. The perception by the courts that this was not just another prisoner case seeking damages but, rather, a case of international human
rights importance, had a lasting impact on both of the judges. The judges,
who had sentenced some of the very clients that were now before them seeking protection, relief, and damages, were provided a different lens through
which to view the women in the litigation, as well as the goals and potential
impact of their rulings beyond this case.



The use of human rights as opposed to prisoners’ rights became more than
a semantic distinction in the case and began to inform the way participants
viewed the issues. It is easier to disregard the statements of, as the defendant
corrections department often refer to them (with a bit of redundancy), the
“convicted female felon,” the “prisoner inmate,” or the “felony offender”
than it is to disregard the human rights of an incarcerated woman. The language of humane treatment, degrading treatment of women, and human
rights began to be repeated by the media as the case progressed, adopted by
the women’s attorneys and ultimately echoed by the court.20
Outside of the courtroom, but no less important for the success of the litigation, the HRW report was distributed to the women prisoners and proved to
be an important organizing and solidifying tool for the class. The women saw
a concrete result from their willingness to disclose the details of their abuse
with an international agency that recognized them as humans entitled to be
treated with dignity and respect. The report lifted the veil of isolation and
despair that had descended upon a group of women who believed not only
that no one was listening but that, even if they were heard, no one would
care. It also introduced women to the existence of counterparts in other states,
lessening the self-blaming guilt that was a constant companion for many of
the women who had been raped by guards, and provided a new non-legalistic
language in which to assert their entitlement to nondegrading treatment and
basic human rights.

Continuing Human Rights Interventions
In 1998, two years after the litigation began and the HRW report, the
United Nations Commission on Human Rights appointed a special rapporteur, Radhika Coomaraswamy, to investigate the treatment of women prisoners in the United States as part of her mandate to investigate the causes
and consequences of violence against women. The reports of the international human rights organizations and the supporting documentation from
the litigation were largely responsible for this mission. The State Department
approved the visit and the special rapporteur prepared to visit Michigan’s
prisons along with six other states. However, on the eve of her visit, the
then-governor of Michigan, John Engler, revoked his agreement to allow her
to visit women prisoners and canceled her meetings with state representatives. The refusal was grounded in part on the governor’s assertion that
the United Nations both lacked authority and was being used as a tool of the
Nevertheless, the special rapporteur journeyed to Michigan to meet with
lawyers, academics, former guards, and former prisoners. Despite the lack of
cooperation, the conditions in Michigan women prisons were included in
the 1999 United Nations Human Rights Commission report on Violence
Against Women. The report detailed the credible allegations of both sexual
abuse and retaliation and, recognizing the UN Standard Minimum Rules for
the Treatment of Prisoners, as augmented by the Basic Principles for the
Treatment of Prisoners,21 stressed the need for gender-specific supervision of
women prisoners.



In an act of reciprocity, plaintiffs’ counsel for the women prisoners, made
presentations both at the United Nations Crime Prevention and Criminal
Justice Congress in Vienna and an ancillary meeting panel at a session of the
United Nations Human Rights Commission in Geneva on the ongoing
human rights violations occurring in Michigan’s women prisoners.
The local media then picked up on the reports in the Geneva press, reinforcing the relevance of the human rights framework and the scrutiny the
state was being subjected to, in part because of the governor’s refusal to acknowledge the authority of the United Nations on this issue. The state’s refusal to allow inspections subjected it to scathing comparisons with rogue
countries with extensive human rights violations and a history of rejecting
international oversight and investigations into their conduct.
In 1998, Human Rights Watch returned to Michigan to follow up on reports that the women prisoners’ cooperation with the international organizations and participation in the litigation had resulted in severe retaliatory actions
by staff against them, including physical assaults and abuse, incarceration in
isolation cells for long periods of time, intensified threats of sexual abuse,
threats to their family, denial of visits, and loss of paroles. The resulting report,
titled Nowhere to Hide, highlighted the near-absolute power staff had over the
women prisoners—controlling their access to the world and their freedom,
the risks the women incurred in speaking out, and the difficulty of addressing
the abuse in this punitive and secretive environment. The report also reflected the interactive synergy between the litigation and human rights documentation. The acknowledgment both of the impact of stepping forward and
the price that women prisoners were paying heightened both the credibility
of HRW among the women as well as confirming the need for the litigation
to seek additional remedial measures with regard to the retaliation.

The Path to Settlement
Meanwhile, the litigation was continuing at both the state and federal levels. Hundreds of depositions were taken, and weekly motions were occurring in
federal court to address discovery issues, retaliation, and ongoing abuse. While
no formal claims for violation of human rights had been filed, the language
of the litigation both in the court room and in media coverage began incorporating the language of the recommendations of the reports and the observations of the United Nations calling for ensuring the human rights of women
prisoners in Michigan. Phrases such as degrading treatment and inhumane
conditions had replaced domestic legalese terms, and the call for taking male
correctional staff out of the housing units of the female facilities was taken up
by the Michigan state legislature as well as editorials in the local newspapers.
The accumulated negative press and pressure of the international scrutiny
and local and national media coverage, and the rejection of the state’s attempt to characterize the litigation as frivolous or the result of isolated acts of
a few rogue guards by both the courts and the press resulted in the parties
beginning settlement discussions.22
During the litigation, the Department of Corrections had made changes
in its operations, as part of a settlement with the DOJ, including changes in



some of its process for hiring, training, and investigation of staff and structural
changes in the facilities. The women prisoners, however, insisted that any
settlement of their claims must include adherence to the international norms
prohibiting cross-gender supervision and searches. While this relief was never
specifically requested in the original pleadings, plaintiffs had prepared an
amended complaint to allege violations of customary international law and
specifically request injunctive relief consistent with the applicable standards
set forth in the Convention Against Torture, the Women’s Rights Convention, and the UN Standard Minimum Rules for the Treatment of Prisoners
should the settlement negotiations fail and trial on this issue be required.23
Ultimately, the federal litigation was settled for significant damages and
remedial relief, including the commitment to remove male staff from the
housing units, intake, and transportation areas of women’s prisons in Michigan and to eliminate cross-gender patdowns. The HRW report played a key
role in persuading the court and the Department of Corrections to agree to
remove male staff. While traditional prisoners’ rights cases typically include
experts who provide reports and testimony on the best practices in other
states and correctional standards, it is unlikely that global standards regarding
the treatment of incarcerated women prisoners would have been provided to
the court absent HRW’s report and Amnesty International’s subsequent report in 1998. The reports revealed that while cross-gender supervision was
standard practice in the United States, it was contrary to international standards that the majority of the world had accepted as a minimum standard.
In Michigan, women prisoners were largely supervised by male staff who
performed the vast majority of body searches and routinely viewed women
nude and performing basic bodily functions. In many instances, the midnight
shift at the women prisons would be comprised entirely of male guards with
full access to the women. The unfettered access, prurient viewing, and constant touching all worked to create a culture of sexual abuse and degradation
in the women’s facilities. The state had steadfastly refused to consider gender-specific supervision, asserting it to be near impossible, inconsistent with
standard correction practices, and unlawful. The DOJ also declined to consider the remedy of elimination of cross-gender supervision and body searches,
both because the federal prisons utilized male staff in their female prisons and
a concern for the constitutionality of gender-based staffing raised by DOJ
attorneys in the employment division.
Yet, HRW and Amnesty International maintained that internationally accepted UN standards24 for the treatment of prisoners as well as the Convention
Against Torture, the Women’s Rights Convention, and the ICCPR should be
considered in determining the treatment of prisoners, including women in
detention. In particular, the UN Standard Minimum Rules for the Treatment
of Prisoners represented a global consensus for the standards applicable
to women prisoners and included the requirement that male staff shall not enter
the part of the institution set aside for women unless accompanied by a female
officer; and that women prisoners shall be under the authority of and attended
and supervised only by woman officers. Although the United States had, in
1975, indicated its full compliance with implementation of these standards,
the United States had lapsed into noncompliance beginning in the 1980s.25



Although no domestic standards required female supervision, plaintiffs’ counsel, who heretofore had had no basis upon which to assert the provisions as a
remedy, now based on the HRW and Amnesty International reports, had the
entire world.

The intertwining of human rights advocacy with the domestic litigation
continued when a contingent of guards challenged the Department of Corrections’s implementation of the terms of the settlement, claiming that the
removal of staff, based on their gender, violated their constitutional rights to
equal protection under the law.26 The women prisoners sought and obtained
the right to intervene to protect their settlement and ensure compliance with
both their constitutional rights and international standards of treatment. The
history, as well as the current practices, in the United States and in ‘peer’
countries was a prominent concern of the trial judge in the case, who contacted Canadian government officials to inquire about the standards in provincial facilities housing women prisoners, and admitted into evidence the
HRW and Amnesty International reports, the report of the UN Commission
on Human Rights, and The Report of the Canadian Government, CrossGender Monitoring Project Third And Final Report, dated September 30,
2000, which recommended enforcement of the requirements of female-only
corrections officers in female prisons in Canada. Although the court considered pleadings that directly raised the argument that failure to implement
the settlement agreement would violate women prisoners’ rights under both the
Constitution and customary international law, it failed to directly rule on the
women prisoners’ claims and rejected the gender-specific assignments relying
only on an analysis of the equal protection rights of the guards.
The federal trial court was, however, reversed on appeal by the Sixth Circuit Court of Appeals, which upheld the women prisoners’ settlement requirement of gender-specific supervision based on women prisoners’ rights
under the Constitution to privacy and safe and humane treatment.27
While much of the interaction between human rights and the constitutional
challenge to protect women prisoners from abuse arose from unplanned circumstances, the lessons and values learned were intentionally applied in the
following challenge to the State of Michigan’s treatment of its incarcerated
citizens in this case the imposition of a sentence of life in prison, without the
possibility of parole, for children under the age of eighteen, which constituted
a clear violation of their human rights.

If there is a group of people caught up in the criminal justice system
in America that has less legal protection than women prisoners, it has to be
the children. In 1997, it was estimated that less than 1 percent of the people
in state prisons were under the age of eighteen. Two years later, youth under
eighteen accounted for 2 percent of all new commitments to state prisons. In
2004, there were estimated to be over 200,000 children under the age of



eighteen incarcerated in adult jails and prisons in the United States. The number is estimated because no one knows for sure how many children are being
held in captivity. The Department of Justice, Bureau of Statistics published a
report in 2001 which attempted to identify the number children under eighteen held in adult jails and prisons in this country as well as the number held
in both private and public juvenile detention facilities. However, many states
do not maintain separate records of the number of children in their adult facilities, reasoning that once a child had been tried or sentenced as if they were
an adult, their child or juvenile status does not follow them into the adult
prisons, despite the realities of their age. Figures of youth held in county jails
are not compiled by, or reported to, a central source, and separate entities
altogether monitor children held in most states’ juvenile facilities.
There is no federal statute or constitutional provision that provides a child
special protection, or even protects a child’s right to be treated consistent
with their status as a child, and throughout the country state laws allow prosecutors to turn a blind eye to the chronological age and corresponding maturity of children, designating them as adults and subjecting them to adult
prosecution, punishment, and incarceration.
In stark contrast, the Convention on the Rights of the Child (CRC) recognizes that the special status of children entitles them to special protection.
It provides that children are to be incarcerated as a last resort, for the least
amount of time possible with mandated rehabilitative efforts. Further, the
CRC flatly prohibits sentencing children to life in prison without parole, stating in Article 37(a) that “Neither capital punishment nor life imprisonment
without possibility of release shall be imposed for offences committed by
persons below eighteen years of age.”
This provision of the CRC has near universal acceptance. 192 of the 194
countries have signed, ratified, and not registered a reservation to the CRC’s
prohibition on life imprisonment without release for youth offenders. The
United States and Somalia are the only two countries in the world that have
not ratified the CRC, although both have signed it.28
Life imprisonment for juveniles also violates the clear language of the
ICCPR, which was both signed and ratified by the United States. Article
10(3) requires that children (under the age of eighteen) be treated appropriate to their age and legal status as children. Article 14(4), which was cosponsored by the United States, mandates that criminal procedures for youth
charged with crimes “take account of the age and the desirability of promoting their rehabilitation.”29
The harshest punishment available for a crime, in states that do not have
the death penalty, is the sentence of life imprisonment. In forty-two states, in
the United States, it is also a permissible punishment for crimes committed
by children.

Developing an Integrated Human Rights Strategy
Despite the clear problem of juvenile life without parole sentences, little
was known of the number of youth serving this sentence in the United
States. Given the positive, if somewhat serendipitous, impact of interweaving



documentation of the abuse of women prisoners by international human
rights organizations with domestic litigation challenging their treatment, a
joint documentation project was planned as the first step in an integrated
advocacy strategy incorporating human rights to address juvenile life without
parole sentences in the United States.
The coalition which would become known as the Second Chances coalition
was spearheaded by the Juvenile Life Without Parole Initiative and began in
the state of Michigan in 2003 with the sponsorship of the Michigan affiliate
of the American Civil Liberties Union, the research assistance of the Institute
for Social Research at the University of Michigan, and Columbia Law School’s
Human Rights Institute. The national ACLU, a domestic civil rights organization, had recently created a Human Rights Working Group to incorporate
a human rights framework in certain litigation and advocacy work, and the work
around juvenile life without parole, which combined that working group’s
concerns with human rights, racial justice, and criminal justice, quickly became part of the national initiative.
Documentation was conceptualized as a first step for several reasons. As in
the prior work around sexual abuse of women prisoners, documentation by
human rights organizations would identify, humanize, and give voice to the
victims of the human rights violations. In addition, documentation was necessary because there was a dearth of knowledge on the extent of the use of this
punishment in the United States. Fact-finding could also function to identify
potential areas of litigation.
Documentation as a first step also made sense because direct legal challenges under domestic law appeared limited. The traditional challenge used
to attack the juvenile death penalty was the Eighth Amendment’s prohibition
on cruel and unusual punishment. The U.S. Supreme Court stuck down the
death penalty for juveniles under the age of sixteen in 1988.30 Although the
U.S. Supreme Court, at the time the documentation project was initiated in
2003, had not yet rejected the death penalty for sixteen- and seventeen-year
olds, the challenge was well underway to argue that this punishment had also
become sufficiently unusual to warrant a ruling on its unconstitutionality.
However, the U.S. Supreme Court had also held in general that life without
parole sentences were constitutional, and the laws of forty-two states allowed
life without parole sentences for juveniles, making a constitutional challenge
that the punishment met the conjunctive requirements of cruel and unusual
difficult on its face.
Federal appellate courts had also held that mandatory sentences of life
without parole imposed on juveniles for murder convictions do not violate
the Eighth Amendment, and where review has been sought by the United
States Supreme Court, it has been declined. These courts also rejected arguments that the lack of consideration of the defendants’ youth posed constitutional problems.31
In 2004, the Supreme Court finally forced the United States into compliance with the world’s standards on criminal punishment of juveniles in the
context of the death penalty in Roper v. Simmons, which struck down the death
penalty for juveniles who committed their crimes under the age of eighteen
as a violation of the Eighth Amendment. Much of the Court’s reasoning



about the differences between juveniles and adults, the vulnerability of juveniles to negative influences and pressures, and other developmental realities
apply equally to life without parole sentences. It was clear that the human
rights communities’ work on this issue contributed to the Court’s interpretation of the Eighth Amendment,32 and the same international authorities that
condemned the juvenile death penalty instruct that the sentence of life without parole for juveniles also violates international law and is a rare punishment around the world.33 However, while Roper struck down the juvenile
death penalty, it left intact laws in forty-two states which sentence children to
grow old and die in a prison cell for crimes committed when they were under
the age of eighteen. With the practice remaining widespread in the United
States, a challenge under the Eighth Amendment, which required a demonstration of both cruelty and unusualness, was still premature.
Similarly, state constitutional challenges were not promising, although
many states, including Michigan where the documentation project started,
had a disjunctive constitution requiring the proof of cruel or unusual punishment. The Supreme Court of Michigan had held that juveniles do not have a
fundamental or constitutional right to special protection, and the state appellate courts had rejected a challenge to the life without parole sentences as
cruel or unusual and held that children or juveniles had no constitutional
right to be treated as juveniles. The lack of a right to special protection means
that there is no fundamental right to certain procedures and standards for
determining when children can be treated as adults.
An additional perspective contributed to a decision not to attempt domestic litigation as the first challenge to juvenile life without parole sentences.
While litigation had been a significant tool in challenging human rights
violations, its focus on the authority of the judiciary could, without care,
disengage advocates, families, and the victims of the human rights violations
themselves while the litigation wound itself through courts and appellate processes. Without an advocacy movement in place, a pure litigation strategy was
insufficient for building a successful human rights framework.
The strategy then was to begin a challenge using a human rights framework, both substantively and procedurally using traditional human rights devices to begin the advocacy. The strategy would first create a documentation
project, then join together domestic advocacy groups involved with children’s
rights and criminal justice issues together with international human rights
organizations to develop both an advocacy campaign and a coordinated legal
challenge incorporating human rights law.

Human Rights Documentation
In Michigan, the documentation project involved extensive interviews
with juveniles serving the life without parole sentence; collateral interviews
with families of the juveniles and victims’ families; extensive review of trial
transcripts and records of the juveniles, pre- and postconviction; interviews
with judges and prosecutors; and data collection, in order to compile a broad
understanding of the impact of the laws allowing life without parole sentencing
of juveniles.



The data collections and the interviews proved the most challenging and
enlightening. In order to obtain a nuanced view of the data, it was planned
to collect data and obtain interviews from a minimum of fifteen states from
different geographic areas that allowed life without parole sentences to be
imposed on juveniles. While the data collected provided a wealth of information and the beginning of an understanding of the extent of the use of life
without parole sentences for children, the diverse recordkeeping of various
Departments of Corrections together with divergent rules on what constituted public documents, and a patchwork of laws left some gaps in the data.
The interviews, once permission was obtained, ranged from emotional
discussions with youths who had not received a single visitor since they had
been arrested and lacked knowledge of the terms of their sentence, to in-depth
thoughtful discussions with mature men and women who spoke of their
youthful selves almost as children from another era and identity, to youths
who were deeply damaged and brought to visits from observation facilities
after suicidal or self-mutilation incidents. Initial interviews led to follow-ups,
letter writing, and phone calls and the emergence of a family advocacy network and a network of incarcerated youth who began their own documentation project to detail their lives.
When it became apparent that there was an impetus for seeking remedial
action in Michigan, a breakout report was issued titled, Second Chances:
Juveniles Serving Life Without Possibility of Parole in Michigan’s Prisons, reporting that over 300 children in Michigan alone were serving the sentence
of natural life without any possibility of parole.
After the publication and attendant publicity of Second Chances, Amnesty
International and Human Rights Watch partnered together, for the first time,
to complete and issue a national documentation report on juveniles serving
life without possibility of parole in the United States. The report was able to
utilize the data collected by the ACLU’s juvenile life without parole initiative
and take advantage of the findings compiled from focus groups and statewide
polling conducted in Michigan on the issues. The report, titled The Rest of
Their Lives: Life without Parole for Child Offenders in the United States, was
issued in late fall 2005, and its unveiling at the ACLU offices of Michigan
recognized the combined efforts of these three organizations to adopt a
human rights framework approach to the challenge to juvenile life without
parole in this country.

Infusing Human Rights Advocacy in Local Campaigns
The report garnered worldwide media attention, raising the consciousness
of media and the public in the United States to the human rights violation
involved in sentencing juveniles to life without parole, while concurrently
raising the issue of the United States’ violation of human rights with the
worldwide body.34
Meanwhile, the documentation reports sparked an informal national coalition that included domestic advocacy groups, children’s groups, legal academics, funders, additional domestic criminal justice advocacy groups, doctors and psychologists, and traditional human rights advocates to coordinate



national challenges to juvenile life without parole sentencing. The overarching issue and approach was to keep the human rights component alive in
whatever strategies were most effective on a state-by-state and national basis.
In Colorado, advocacy groups, in collaboration with Human Rights Watch,
issued their own state documentation report titled Thrown Away: Child Offender Serving Life Without Parole in Colorado. California and Illinois began
working with a private law firm to begin their own statewide documentation
project in preparation for legislative and/or litigation challenges, drawing on
the expertise of both Human Rights Watch and the ACLU. Mississippi, Louisiana, and Florida all began their own initiatives, again relying upon the assistance of the ACLU, Amnesty International, and Human Rights Watch in
developing their state challenges.
In Michigan the documentation project continued and became more nuanced, able to address the racial injustice components of the life without parole sentence and engage advocacy groups to focus on this aspect of racial
discrimination in the administration of the criminal justice system in the United
States. The project also continued to weave human rights concerns with the
domestic agenda, by working domestically to introduce legislation to eliminate the sentence, while filing a petition with the Inter-American Commission,
with the assistance of the Human Rights Institute and clinic at Columbia
Law School, directly challenging the illegality of their sentence under the
American Declaration of the Rights and Duties of Man.
The media reports on all of these events often included specific reference
to the fact that this practice violated international norms, treaties, and covenants, a perception not usually included in media reports of domestic sentencing issues involving the criminal justice system in America and impacting the
language of the debate. The discussion was more about children’s rights,
human rights, and second chances for youth and less about violent predators/
felons and hardened criminals (language used by the opposition).
Like the situation with women prisoners, the juveniles serving the life sentence together with their families and friends also embraced the human rights
language and framework. The Second Chances coalition, which grew out of
the grassroots organization of family, friends, and juveniles, created a Web
site with links to the domestic legislation, the Inter-American petition, the
documentation reports, and the international instruments which supported
the assertions of human rights violations.

International Advocacy
In addition to local efforts, activists engaged in international forums to increase international pressure on the United States. Counsel for the juveniles
in Michigan attended the UN Congress on Crime Prevention and Criminal
Justice in Bangkok in 2005, on behalf of Human Rights Advocates to raise
the issue of juvenile life without parole sentences in this international body as
a prelude to addressing the issue with the UN Human Rights Committee.
In September 2006, the United Nations Human Rights Committee addressed the issue as part of its concluding observations on the United States’s
compliance with the ICCPR. After recognizing the documentation reports,



the committee observed that sentencing children to life sentence without
parole is of itself not in compliance with Article 24 (1) of the Covenant
(Articles 7 and 24) and recommended that:
The State party should ensure that no such child offender is sentenced to life
imprisonment without parole, and should adopt all appropriate measures to
review the situation of persons already serving such sentences.35

Similarly, the UN Committee Against Torture included the issue in its
recommendation on the United States’s compliance with the Convention
Against Torture, stating: “The State party should address the question of
sentences of life imprisonment of children, as these could constitute cruel,
inhuman or degrading treatment or punishment.”36
The United Nations General Assembly also adopted a resolution calling
for the elimination of this practice as violating the Convention on the Rights
of the Child. This international attention, in turn, brought domestic media
attention back to the human rights issues and violations, requiring state legislators to address the issues of the state’s laws violating human rights norms,
treaties, and conventions. Not everyone was impressed with the framework
however. Alan Cropsey, the Republican chair of Michigan’s Senate judiciary
committee, who blocked hearings on the reform legislation, responded to
the United Nations observations by asserting that “The UN is a laughing
stock. They have no moral credibility.” One journalist, however, noting
the poor company the United States was keeping on this issue, mourned the
United States’s ebbing moral authority, coming full circle by connecting the
abuses committed by military in Abu Ghraib with the culture of ignoring
human rights obligations at home.

1. Matt Davis, Michigan Department of Corrections spokesperson (press
2. Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871).
3. Thompson v. Bond, 421 F.Supp. 878, 882 (W.D. Mo. 1976).
4. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
5. Many chapters could be written on the confluence of events that resulted in
what is known as the modern prisoners’ rights movement. The Autobiography of Malcolm X was first published in the United States in 1965 and Eldridge Cleaver’s Soul on
Ice in 1968. These followed Caryl Chessman’s 1950s exposure of death row (in)justice and were all widely read both inside prison and out, creating a symmetry of shared
knowledge and consciousness raising on prison conditions in the United States.
6. Jackson v. Bishop, 404 F.2d. 571 (8th Cir. 1968).
7. Hutto v. Finney, 437 U.S. 678 (1978).
8. Wolff v. McDonnell, 418 U.S. 539 (1974).
9. Estelle v. Gamble, 429 U.S. 97 (1976).
10. Turner v. Safely, 482 U.S. 78 (1987).
11. O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
12. Because prison officials often prove to be recalcitrant even after courts have
found the condition and treatment of prisoners unconstitutional, federal trial court



judges have the power to issue injunctive and remedial orders specifically ordering
officials to take certain steps or adopt certain measures.
13. Wilson v. Seiter, 501 U.S. 294 (1991).
14. Significantly, the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment provides that coercion based on discrimination
which causes severe harm, whether physical or mental, constitutes torture. For an action to constitute cruel, inhuman, or degrading treatment or punishment it need not
be shown to be committed for a particular purpose or with any specific intent.
15. Lewis v. Casey, 518 U.S. 343 (1996).
16. Amnesty International, “Not Part of My Sentence”: Violations of the Human
Rights of Women in Custody in the United States (Amnesty International, March
1999); Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State
Prisons (Human Rights Watch: December 1996); Human Rights Watch, Nowhere to
Hide: Retaliation against Women in Michigan State Prisons (Human Rights Watch,
July 1998).
17. Glover v. Johnson, 478 F.Supp 1075 (E.D. Mich 1979).
18. Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994).
19. In the criminal justice context, attempts by prisoners to challenge their criminal convictions arguing international law in the context of habeas corpus petitions had
consistently been rejected, as had challenges to capital punishment against juveniles,
something that was clearly violative of a number of international treaties and customary international law.
20. Counsel for the women also attempted to reframe the language and status of
their clients by including claims, in the federal litigation, of violations of the federal
Violence Against Women’s Act, and in the state case raising their central claims under
the state’s civil rights act which prohibits discrimination, including sexual-based harassment against women in all public services and facilities. Unfortunately, after the
cases were filed, the federal courts struck down the Violence Against Women’s Act as
unconstitutional. When the Act was reauthorized, it excluded protections for women
prisoners. Similarly, the state of Michigan amended the state’s civil rights act to specifically deprive prisoners of the Act’s protection against discrimination. This amendment was, however, later struck down as unconstitutional when challenged by women
prisoners as violative of their constitutional and human rights. Mason v. Granholm,
2007 WL 201008, ED Mich, January 23, 2007.
21. UN General Assembly, Basic Principles for the Treatment of Prisoners, G.A. res.
45/111, UN Doc. A/45/11 (December 14, 1990).
22. A one-hour special was aired on national television which focused in large part
on the conditions in Michigan and joined comments from Human Rights Watch, the
counsel for the women prisoners, the Department of Justice, and state officials in
evaluating the conditions of women prisons in the program titled Women in Prison:
Nowhere to Hide. The special garnered an American Bar Association Silver Gavel
Award and a Robert Kennedy award for broadcast journalism that year.
23. See Martin A. Geer, “Human Rights and Wrongs in our Backyard: Incorporating International Human Rights Protections Under Domestic Civil Rights Law: A
Case Study of Women in the United States Prisons,” Harvard Human Rights Journal
13 (Spring 2000): 71.
24. Standard Minimum Rules for the Treatment of Prisoners, adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 UN ESCOR Supp. (No.
1) at 11, UN Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 UN ESCOR
Supp. (No. 1) at 35, UN Doc. E/5988 (1977); UN General Assembly, Basic Principles for the Treatment of Prisoner.



25. Nick Pappas, The Jail: Its Operation and Management (Washington, DC: United
States Bureau of Prisons, 1973), pp. 19, 71–72; UN Standard Minimum Rules. For a
full history of the United States lapse into noncompliance, see Martin A. Geer, “Protection of Female Prisoners :Dissolving Standards of Decency,” Margins 2 (2002): 209.
26. Everson v. MDOC, 222 F.Supp 2d 864 (E.D. Mich 2002). The male guards
used Title VII of the Civil Rights Act Section 703(a)(1) and (2), which states:
(a) It shall be unlawful employment practice for an employer
1. To fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions or privileges or employment because of such individual’s race,
color, religion, sex or national origin; or
2. To limit, segregate or classify his employees or applicants from employment in any way that would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex, or national
27. Everson v. MDOC, 391 F3d 739 (2004), cert. den. 126 S.Ct 364 (2005). For a
good discussion of the case and the legal and social issues surrounding women prisoner abuse and privacy rights, see the work of Brenda Smith, “Sexual Abuse of Women
in Prison, a Modern Corollary of Slavery,” Fordham Urb. L.J. 33 (2006): 571; and
Brenda Smith, “Watching You Watching Me,” Yale J.L. and Fem. 15 (2004): 223.
28. The United States signed the Convention on the Rights of the Child on
February 16, 1995 and Somalia signed on May 2, 2002, and while neither have since
ratified it, Somalia lacks a formal government to effectuate ratification.
29. When the United States ratified the ICCPR, it attached a limiting reservation,
providing that “the United States reserves the right, in exceptional circumstances, to
treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and
paragraph 4 of article 14.”
30. Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (Stevens, J., concurring)
(the court in holding that such a punishment has become unusual in the United
States as part of our evolving standards of decency also noted the global rejection of
the death penalty for youth offenders age sixteen or younger).
31. Although two state supreme courts have held that juvenile life without parole
sentences were improper, the cases involved particularly troubling circumstances concerning a thirteen-year-old convicted of murder and a fourteen-year-old convicted of
32. The Court specifically referred “to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of cruel and unusual punishments,” and cited two documentation reports on
the limited use of capital punishment of minors in the rest of the world. Roper v. Simmons, 125 S.Ct. 1183, 1198 (2005).
33. According to Human Rights Watch, Amnesty, and Human Rights Advocates,
there were only a handful of youth in the rest of the world combined serving a life
without parole sentence.
34. There was extensive coverage in both local newspapers in Michigan as well as
worldwide coverage. For example BBC radio aired an interview with a juvenile serving LWOP in Michigan and the New York Times included the issue in a three-part
series. The national report also helped fuel ongoing coverage and attention on Michigan with segments of National Public Radio and state journals focusing on Michigan’s efforts to illuminate and eradicate this human rights violation.



35. See UN Human Rights Committee, 87th Session, Consideration of Reports
Submitted By Parties Under Article 40 of the Covenant, Concluding Observations of the
Human Rights Committee: United States of America, UN Doc. CCPR/C/USA/
CO/3/Rev.1 (18 December 2006).
36. UN Committee Against Torture, 36th Session, Consideration of Reports Submitted By Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee Against Torture: United States of America, UN Doc. CAT/C/
USA/CO/2, para. 34.