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Disabled by Solitude: The Convention on the
Rights of Persons with Disabilities and Its
Impact on the Use of Supermax
Solitary Confinement
KATHRYN D. DEMARCO*
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. The CRPD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The CRPD and State-Imposed Disabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Disablement as a Legal Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. SUPERMAX SOLITARY CONFINEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. History of Supermax Solitary Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Current Description of Solitary Confinement in U.S. Supermax Prisons . . .
IV. THE MENTAL EFFECTS OF SENSORY DEPRIVATION FROM SOLITARY
CONFINEMENT CONSTITUTE DISABLEMENT UNDER THE CRPD . . . . . . . . . . . . . . .
A. Mental Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Effects of Solitary Confinement Meet the Article 1 Disability
Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. “LONG-TERM” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. “FULL AND EFFECTIVE PARTICIPATION” . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. UNIFORMITY OF RESULT AND FREQUENCY OF “LONG-TERM” PSYCHIATRIC
CONSEQUENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. pre-existing mental state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. the amount of time spent in supermax solitary . . . . . . . . . . . . . . . . .
V. ARTICLE 15 AS ANOTHER AVENUE FOR A DISABLEMENT CLAIM . . . . . . . . . . . . .
A. Supermax Confinement as Torture or Cruel and Inhuman Treatment . . . . .
B. Disablement and Article 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. U.S. RATIFICATION AND IMPLEMENTATION OF THE CRPD . . . . . . . . . . . . . . . . . . .
A. The CPRD’s Provisions for Implementation and Enforcement . . . . . . . . . . .
B. The Impact on U.S. Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. THE IMPACT OF “CLEAN” RATIFICATION OF THE CRPD . . . . . . . . . . . . . . .
2. THE IMPACT OF CONDITIONS TO THE SENATE’S CONSENT TO
RATIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. RUDs relating to implementation and enforcement . . . . . . . . . . . . .
b. RUDs limiting the substantive scope of the CRPD . . . . . . . . . . . . .
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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555
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564

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It’s an awful thing, solitary. It crushes your spirit and weakens your
resistance more effectively than any other form of mistreatment.
—John McCain1
* Articles & Comments Editor, University of Miami Law Review; J.D. Candidate 2012,
University of Miami School of Law; B.A. 2009, University of Texas. Thank you to Professor
Stephen J. Schnably for his insightful feedback and willingness to work with me throughout the
writing process, to Professor Susan Stefan for sharing her expertise on disability law, to my
family, and to David Fern´andez.
1. Atul Gawande, Hellhole: The United States Holds Tens of Thousands of Inmates in Long-

523

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INTRODUCTION

As the first human rights treaty of the twenty-first century, the
United Nations Convention on the Rights of Persons with Disabilities
(CRPD) aims to protect the “world’s largest minority”—some 650 million people in the world living with a disability.2 It is the most recent
and “the most extensive recognition of the human rights of persons with
disabilities.”3 The United Nations General Assembly approved the text
of the CRPD on December 13, 2006, in order “to promote, protect and
ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities, and to promote respect for
their inherent dignity.”4 On March 30, 2007, the CRPD opened for signatures, and eighty-two countries signed the convention with forty-four
signing the Optional Protocol—the largest number of signatories on an
opening day in the history of the United Nations.5 On May 3, 2008,
thirty days after the twentieth ratification, the CRPD became legally
binding on all state parties.6 Today, the CRPD has 149 signatures and
103 ratifications.7 The Optional Protocol for the CRPD has 90 signatures
and 62 ratifications.8 As a result, this convention will have far-reaching
implications for those with disabilities around the world and for any
nation whose domestic policies violate the precepts of the CRPD.9
term Solitary Confinement. Is this Torture?, THE NEW YORKER, Mar. 30, 2009, http://www.
newyorker.com/reporting/2009/03/30/090330fa_fact_gawande.
2. See Secretariat for the Convention on the Rights of Persons with Disabilities, Fact Sheet
on Persons with Disabilities, U.N. ENABLE, http://www.un.org/disabilities/default.asp?id=18 (last
visited Aug. 16, 2011); World Report on Disability, WORLD HEALTH ORGANIZATION (2011), http:/
/whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf (stating that there are actually
more than one billion people living with a disability) [hereinafter World Report on Disability].
The World Health Survey estimates that 785 to 975 million people over the age of fifteen have
disabilities, and the Global Burden of Disease estimates that about 190 million individuals suffer
from a “severe” disability such as severe depression or blindness. Id. at 44. See also Arlene S.
Kanter, The Promise and Challenge of the United Nations Convention on the Rights of Persons
with Disabilities, 34 SYRACUSE J. INT’L L. & COM. 287, 306 (2007); Anna Lawson, The United
Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?, 34
SYRACUSE J. INT’L L. & COM. 563, 563 (2007).
3. World Report on Disability, supra note 2, at 9 (stating that the CRPD “applies human
rights to disability, thus making general human rights specific to persons with disabilities”).
4. United Nations Convention on the Rights of Persons with Disabilities, art. 1, Dec. 13,
2007, U.N. GAOR, 61st Sess., U.N. Doc. A/RES/61/106 [hereinafter CRPD].
5. Secretariat for the Convention on the Rights of Persons with Disabilities, Convention on
the Rights of Persons with Disabilities and Optional Protocol, U.N. ENABLE, http://www.un.org/
esa/socdev/enable/conventioninfo.htm (last visited Aug. 10, 2011).
6. Press Release, Department of Public Information, With 20 Ratifications, Landmark
Disability Treaty Set to Enter into Force on 3 May, U.N. Press Release HR/4941(Apr. 3, 2008),
available at http://www.un.org/News/Press/docs/2008/hr4941.doc.htm.
7. U.N. ENABLE, http://www.un.org/disabilities/ (last visited Aug. 16, 2011).
8. Id.
9. See id.

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On July 24, 2009, President Obama signed the CRPD, referring to
it as a “historic piece of civil rights legislation” that furthers “our global
commitment to fundamental human rights for persons with disabilities.”10 While President Obama has not yet submitted the CRPD to the
Senate, a requirement for future ratification,11 the potential implications
of this document for domestic policy cannot be ignored. Specifically,
this piece will analyze whether the use of supermax solitary confinement
is consistent with the CRPD.12
Supermax solitary confinement prison facilities are designed for
mass and indefinite solitary confinement.13 They deprive the prisoner of
virtually all forms of human interaction and sensory stimulation. Unlike
traditional solitary confinement where inmates are placed briefly into
cells as a form of punishment, supermax solitary facilities keep inmates
in confinement for years on end and use solitary confinement as a
“prison management tool.”14 In other words, supermax solitary confinement is a form of long-term confinement as opposed to a brief punishment for a disciplinary infraction.
While supermax solitary confinement units vary in their details,
they share certain common features. The cells in supermax solitary units
are basically the equivalent of a small “concrete exercise pen”15 in
which prisoners must live for months and possibly years. Deprivation of
sensory experience, human interaction, and intellectual stimulation are
hallmarks of supermax confinement. In many instances, the cells are
designed without color and are furnished with only a stainless steel sink,
a toilet, and a concrete bed and writing desk.16 Inmates are denied access
to a clock, television, radio, computer, telephone, and books (except for
10. Remarks by the President on Signing of the U.N. Convention on the Rights of Persons
with Disabilities Proclamation, WHITEHOUSE (July 24, 2009), http://www.whitehouse.gov/thepress-office/remarks-president-rights-persons-with-disabilities-proclamation-signing.
11. U.S. CONST. art. I, § 2, cl. 2.
12. This article uses the more general term of supermax prison when referring to solitary
confinement. Different prison systems use different terms to refer to such facilities such as
“control unit,” “security housing units,” or “communications management units.” Ken Strutin,
Solitary Confinement, LLRX (Aug. 10, 2010), http://www.llrx.com/features/solitaryconfinement.
htm.
13. Supermax Prisons: An Overview, HUMAN RIGHTS WATCH, http://www.hrw.org/legacy/
reports/2000/supermax/Sprmx002.htm (last visited Aug. 16, 2011); see also Gawande, supra note
1.
14. See Sharon Shalev, A Sourcebook on Solitary Confinement, MANNHEIM CENTER FOR
CRIMINOLOGY & LONDON SCHOOL OF ECONOMICS 31 (Oct. 2008), www.solitaryconfinement.org/
sourcebook.
15. Laura Sullivan, In U.S. Prisons, Thousands Spend Years in Isolation, NPR (July 26,
2006), http://www.npr.org/templates/story/story.php?storyId=5582144; see also Terry A. Kupers,
What to Do with the Survivors? Coping with the Long-Term Effects of Isolated Confinement, 35
CRIM. JUST. & BEHAV. 1005 (2008), http://cjb.sagepub.com/content/35/8/1005.full.pdf+tml.
16. Tracy Hresko, Article, In the Cellars of the Hollow Men: Use of Solitary Confinement in

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a religious text).17 They are subjected to “almost complete idleness” for
indefinite periods of time.18 When there is contact with other people, it
is usually brief, routine, and superficial, such as being escorted to the
showers by a guard.19
Confinement in a supermax facility typically has profound, longlasting, and adverse effects on the majority of individuals. One description of life at the Pelican Bay State Prison is as follows: “One inmate
stands in the middle of his cell, hollering at no one in particular. Another
bangs his head against the door. Many of the inmates are naked, some
exposing themselves.”20 The monotony and sensory deprivation of everyday life become overwhelming. “There is simply nothing to do. Sit in
your bathroom alone with none of your intimate possessions and try to
imagine years of it, week after week. Slowly it tears you down, mentally
and physically.”21 Tommy Silverstein, who was in solitary confinement
for over twenty-five years, described solitary confinement as a “slow
constant peeling of the skin, stripping of the flesh.”22
The criteria for the use of supermax confinement differ by facility,
and the length of such confinement is left to the discretion of prison
officials.23 Supporters of supermax confinement in the United States
typically offer several justifications for its use. Often supermax facilities
claim to house the “worst of the worst”24—prisoners who are extremely
dangerous to others and utterly incorrigible—though this is quite debatable.25 Supermax confinement is sometimes used as a way of protecting
U.S. Prisons and Its Implications Under International Laws Against Torture, 18 PACE INT’L L.
REV. 1, 10 (2006).
17. Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1098 (W.D. Wis. 2001); Christine Rebman, The
Eighth Amendment and Solitary Confinement: The Gap in Protection from Psychological
Consequences, 49 DEPAUL L. REV. 567, 579 (1999).
18. Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax”Confinement,
49 CRIME & DELINQ. CONFINEMENT 124, 126 (2003), http://cad.sagepub.com/content/49/1/124.
full.pdf+tml [hereinafter Mental Health Issues].
19. U.N. Secretary-General, Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment: Note by the Secretary-General, U.N. DOC. A/63/175 (July 28, 2008) [hereinafter
U.N. Secretary-General] (stating that “[t]he reduction in stimuli is not only quantitative but also
qualitative”).
20. Laura Sullivan, At Pelican Bay Prison, a Life in Solitary, NPR (July 26, 2006), http://
www.npr.org/templates/story/story.php?storyId=5584254.
21. Shalev, supra note 14, at 19.
22. Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. PA. J. CONST. L.
115, 116 (2008).
23. Maria A. Luise, Solitary Confinement: Legal and Psychological Consideration, 15 NEW
ENG. J. ON CRIM. & CIV. CONFINEMENT 301, 301 (1989); Gawande, supra note 1.
24. Kupers, supra note 15, at 1011.
25. Mental Health Issues, supra note 18, at 129 (stating that there is “no evidence that the rise
of supermax prisons was driven by the threat of some new breed of criminal or prisoner”); Colin
Dayan, Barbarous Confinement, N.Y. TIMES, July 17, 2011, http://www.nytimes.com/2011/07/18/
opinion/18dayan.html (stating that the decision to place an inmate in solitary is “haphazard and

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certain prisoners from attacks by others,26 and as a form of punishment
for disciplinary infractions—nonviolent as well as violent.27 Prison officials also place inmates in solitary merely because the inmates are “perceived as troublemakers or simply disliked by correctional officers.”28
Inmates have also been placed in supermax confinement in order to suppress activity that prison officials deem “dissident”—a category that can
include helping other inmates with habeas petitions or trying to bring
suit against the prison administration.29 Finally, inmates may be confined to supermax confinement for purely administrative reasons—e.g.,
prison overcrowding or a lack of more suitable space when they are ill.30
In general, the criteria behind supermax solitary’s use varies from facility to facility, and the term of confinement is entirely dependent on the
discretion of prison officials.31
Today the use of supermax solitary confinement in the U.S. prison
system is on the rise. Conservative estimates report that there are at least
25,000 inmates in supermax solitary confinement in the United States.32
Nicholas Katzenbach, the former Attorney General of the United States,
noted that “the growth rate in the number of prisoners housed in segregation far outpaced the growth rate of the overall prison population.”33
The increase of supermax prisons and solitary confinement has been
called “perhaps the most troubling” human rights trend in the United
States corrections system.34 The Commission on Safety and Abuse in
America’s Prisons stated that after ten days in solitary confinement,
there are “practically no benefits” to such confinement, while the “harm
arbitrary” and that while prison officials claim that those imprisoned in the Pelican Bay State
Prison are “the worst of the worst . . . often it is the most vulnerable, especially the mentally ill,
not the most violent, who end up in indefinite isolation”).
26. See Sullivan, supra note 20.
27. Shalev, supra note 14, at 25; Mental Health Issues, supra note 18, at 126–27.
28. Dayan, supra note 25.
29. Bruce A. Arrigo & Jennifer Leslie Bullock, The Psychological Effects of Solitary
Confinement on Prisoners in Supermax Units: Reviewing What We Know and Recommending
What Should Change, 52 INT’L J. OF OFFENDER THERAPY AND COMP. CRIMINOLOGY 622, 626–28
(2008), http://ijo.sagepub.com/content/52/6/622.full.pdf+tml.
30. Craig Haney, A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons,
35 CRIM. JUST. & BEHAV. 956, 962, 964–65 (2008), www.sagepub.com/bartolstudy/articles/
Haney.pdf [A Culture of Harm]. See also Craig Haney & Mona Lynch, Regulating Prisons of the
Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. &
SOC. CHANGE 477, 493–94 (1977); Dayan, supra note 25 (“[I]solation, which can last for decades,
is often not explicitly disciplinary, and therefore not subject to court oversight. Their treatment is
simply a matter of administrative convenience.”).
31. Luise, supra note 23, at 301.
32. Sullivan, supra note 20.
33. COMM’N ON SAFETY AND ABUSE IN AMERICA’S PRISONS, VERA INSTITUTE OF JUSTICE,
CONFRONTING CONFINEMENT 53 (2006), available at http://www.prisoncommission.org/pdfs/
confronting_confinement.pdf.
34. Mental Health Issues, supra note 18, at 125.

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is clear.”35
Equally important, there are alternatives to the use of supermax
facilities. For example, in the 1980’s, Great Britain prison officials
began to reduce isolation and to offer inmates access to work and educational opportunities within the prison.36 The officials also began to allow
inmates more free time for exercise and phone calls.37 This change
caused “impressive” results, and now the use of solitary confinement in
Great Britain is negligible.38
This article argues that the use of supermax facilities is inconsistent
with the CRPD. Confining an individual to a supermax facility in
essence creates a mental disability. While the major concern of the
CRPD is to protect “the rights and development of people with disabilities,”39 it cannot be consistent with the CRPD for the government to
make someone disabled. Accordingly, the use of supermax facilities violates the CRPD.40
Because the disability inflicted by supermax facilities is inconsistent with the CRPD, what effect will ratification of the convention have?
This article addresses a major policy question heretofore not analyzed in
the already significant body of commentary on the CRPD.41 Specifically, with what reservations, understandings, and declarations might the
Senate approve the treaty? The United States has an established pattern
of ratification of human rights treaties, the ratification of which is typically accompanied by a standard package of reservations, understandings, and declarations.42 This package is designed to modify the
35. Gawande, supra note 1.
36. Id. (analyzing violence levels in state prisons following the opening of new supermaxes in
Arizona, Illinois, and Minnesota. Levels of inmate-on-inmate violence remained the same with
inmate-on-staff violence fluctuated at random. No steady decrease in violence was found).
37. Id.
38. Id.
39. Mark Malloch, Deputy U.N. Sec. Gen., Secretary General’s Message on the Adoption of
the Convention on the Rights of Persons with Disabilities (Dec. 13, 2006), available at http://
www.un.org/apps/sg/sgstats.asp?nid=2362.
40. While this article is limited to an analysis of supermax solitary confinement, this does not
necessarily mean that lesser forms of solitary confinement are consistent with the CRPD. Also
beyond the scope of this article is an analysis of the obligations the CRPD places on states with
respect to prisoners who have a non-state-imposed disability.
41. See, e.g., Aaron A. Dhir, Human Rights Treaty Drafting Through the Lens of Mental
Disability: The Proposed International Convention on Protection and Promotion of the Rights
and Dignity of Persons with Disabilities, 41 STAN. J. INT’L L. 181 (2005); Kanter, supra note 2;
Lawson, supra note 2; Tina Minkowitz, The United Nations Convention on the Rights of Persons
with Disabilities and the Right to Be Free from Nonconsensual Psychiatric Interventions, 34
SYRACUSE J. INT’L L. & COM. 405 (2007); Michael L. Perlin, “A Change Is Gonna Come”: The
Implications of the United Nations Convention on the Rights of Persons with Disabilities for the
Domestic Practice of Constitutional Mental Disability Law, 29 N. ILL. U. L. REV. 483 (2009).
42. See UNITED STATES SENATE FOREIGN RELATIONS COMMITTEE REPORT: INTERNATIONAL

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substantive commitments the United States takes on, bring them into
conformity with existing domestic U.S. law, and ensure that U.S. courts
lack jurisdiction to enforce the treaty.
Were the Senate to take up the question of ratifying the CRPD, it
would likely give serious consideration to exempting supermax facilities
from its scope. This article will analyze how it might seek to do so,
arguing that it may be extraordinarily difficult to formulate a reservation
or understanding that is both politically acceptable and successful in
exempting supermax facilities from international scrutiny under the
CRPD.
Part II of this article discusses the background of the CRPD and the
concept of disablement. Part III presents the history and current use of
solitary confinement in the United States. Part IV discusses the medical
and psychological effects of supermax solitary confinement and the
implications of those effects in reference to the CRPD. Following that,
Part V explains an additional avenue of relief for inmates under Article
15 of the CRPD. Lastly, Part VI analyzes possible reservations, understandings, and other procedural mechanisms that the United States might
employ in order to limit the effect of a possible ratification of the CRPD.
II.

THE CRPD

The CRPD aims to protect the civil, political, economic, social, and
cultural rights of disabled persons. The rights protected by the CRPD
include the right to equality before the law without discrimination,43 the
right to physical and mental integrity,44 freedom of movement45 and
work,46 and the right to an adequate standard of living.47 Article 1 of
CRPD defines those who are disabled as those who have “long-term
physical, mental, intellectual or sensory impairments.”48 The Secretariat
for the CRPD stated that a disability “should be seen as the result of the
interaction between a person and his/her environment” and “not something that resides in the individual as the result of some impairment.”49
COVENANT ON CIVIL AND POLITICAL RIGHTS, S. Exec. Doc. No. 102–123, Cong., 2d Sess. 6–12
(1992), reprinted in 31 I.L.M. 645 (1992) [hereinafter US ICCPR Conditions].
43. CRPD, supra note 4, art. 5.
44. Id. art. 17.
45. Id. art. 18.
46. Id. art. 27.
47. Id. art. 28.
48. Id. art. 1; see also World Report on Disability, supra note 2, at 21 (defining a disability as
a “complex multidimensional experience [that] poses several challenges for measurement.
Approaches to measuring disability vary across countries and influence the results.”).
49. See Secretariat for the Convention on the Rights of Persons with Disabilities, Focus of the
Convention, U.N. ENABLE, http://www.un.org/disabilities/default.asp?id=216 (last visited Aug.
16, 2011) [hereinafter Focus of the Convention].

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The Secretariat for the CRPD has also made it clear that the CRPD
definition of a disabled person is not exhaustive and does not “exclude
broader categories of persons . . . with short-term disabilities or persons
who had disabilities in the past.”50 In other words, the CRPD does not
appear to impose a temporal limitation on disabilities based on the broad
language and interpretations of Article 1. For example, one who suffers
from a mental disability that is either permanent or temporary would be
covered by the CRPD.
It is also important to note that both physical and mental impairments are recognized under Article 1 of the CRPD. The Secretariat for
the CRPD acknowledged on his official website, U.N. Enable, that the
Article 1 definition is not an exhaustive definition for individuals who
might be able to claim relief under the CRPD.51 Therefore, the mental
effects produced by supermax solitary would not be excluded under
Article 1 of the CRPD.
A.

The CRPD and State-Imposed Disabilities

As noted, the primary aim of the CRPD is to ensure the full equality and integration into society of people who have disabilities.52 But
there is an equally fundamental right under the CRPD—specifically, the
right not to be disabled by government action. Support for this proposition is found in the text and drafting history of the treaty.
Article 4(d) of the CRPD requires states to “refrain from engaging
in any act or practice that is inconsistent with the present Convention
. . . .”53 It cannot be consistent with the CRPD for a state to impose a
disability on someone. Consider what an alternate interpretation would
mean: A state party could deliberately disable an individual, and then
would be obligated to take a variety of measures designed to ensure that
the disability the state imposed has as little limiting or restrictive effect
on that person as possible. To put it another way, by this reading, a state
party would be free to take an action, but would then be obligated to
undo its effects as much as possible. Any such reading of the CRPD
would be inconsistent with the fundamental requirement of international
law that a treaty be “interpreted in good faith . . . in light of its object
and purpose.”54 In fact, any such reading would be “manifestly absurd”
or “unreasonable.”55
50. Id.
51. Id.
52. Id.
53. CRPD, supra note 4, art. 4.
54. Vienna Convention on the Law of Treaties, art. 31(1), May 23, 1969, 1155 U.N.T.S. 331
[hereinafter Vienna Convention].
55. Id. art. 32(b).

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The preparatory materials to the CRPD state that “[d]isability often
arises from war and inhumane treatment” and that steps must be taken to
protect “those who have become disabled as a result of inhumane treatment as well as to promote prevention.”56 Consistent with this admonition, the Secretary-General spoke on the day of the adoption of the
CRPD of the “need to enable every person to contribute to the best of
their abilities and potential.”57 A state that imposes a disability on an
individual is plainly acting contrary to that need.58 The World Report on
Disability, meant to facilitate the implementation of the CRPD, also
highlights the importance of preventing health conditions that cause disabilities such as nutrition and preventable diseases59 and the increased
risk of disability associated with poverty.60 The report goes on to mention the “huge effect” environment can have on both the prevalence and
extent of a person’s disability.61 For example, environmental changes
such as armed conflict and natural disasters can disable individuals.62
B. Disablement as a Legal Concept
The term “disablement” here refers to state action, intentionally
undertaken, that predictably results in the imposition of a disability on
the majority of the population subjected to the state action.63 It is not
necessary to show that state officials are motivated by a desire that those
56. Secretariat for the Convention on the Rights of Persons with Disabilities, Human Rights
and Persons with Disabilities, U.N. ENABLE (2007), http://www.un.org/esa/socdev/enable/rights/
humanrights.htm; see also U.N. Secretary-General, Progress in Equalization of Opportunities by,
for and with Persons with Disabilities, (June 27, 2003), http://www.un.org/esa/socdev/enable/
rights/a_ac265_2003_3e.htm (stating that “war and conflict, as well as violence in society, are
recognized causes of disablement [and] progress in implementing the programme of action would
contribute to a reduction of one of the significant causes of disability in populations”).
57. Malloch, supra note 39.
58. Article 15 of the CRPD states that “[n]o one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.” CRPD, supra note 4, art. 15. This provision is
analyzed in Part V infra.
59. World Report on Disability, supra note 2, at 8.
60. Id. at 10.
61. Id. at 37.
62. Id.
63. Some scholars have used the term “disablement” in a broader though related sense, as the
social, political, legal, and economic factors by which people who have disabilities are mistreated.
Factors such as a lack of medical care and nutrition in prison constitute a form of such
disablement. See Marta Russell & Jean Stewart, Disablement, Prison & Historical Segregation,
53 MONTHLY REV. 3 (2001). Beth Ribet analyzes disablement in the context of prison rape, where
a disability is created through external factors and suffering. Beth Ribet, Naming Prison Rape as
Disablement: A Critical Analysis of the Prison Litigation Reform Act, the Americans with
Disabilities Act, and the Imperatives of Survivor-Oriented Advocacy, 17 VA. J. SOC. POL’Y & L.
281, 285 (2010) (referring to disablement as “the process by which some disabilities . . . are
produced by violence, inequality, and subordination” in the context of U.S. prisons); see also
World Report on Disability, supra note 2, at 169 (stating that “[e]nvironments—physical, social,
and attitudinal—can either disable people with impairments or foster their participation and

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subjected to the policy become disabled, but it may be easiest to set out
the legal elements of disablement in the context of state action that is so
motivated—deliberate physical maiming as punishment.
In 2010, a Saudi Arabian judge asked several hospitals whether
they would sever a man’s spinal cord as punishment for paralyzing
another man during a fight.64 There is no sign the punishment was ever
actually imposed, but it is worth analyzing whether Saudi Arabia would
have violated its obligations under the CRPD had the severing been carried out.65 Additionally, an example of disablement occurred in Iran in
2008, when Iranian authorities amputated the hand of a young man as
punishment for stealing.66 Like Saudi Arabia, Iran is a party to the
CRPD.67
These examples of governmental action inflicting permanent disabilities would certainly qualify as a violation of the CRPD. “Disablement” has four basic elements, all of which are present here. First, both
of these actions were official government actions. In both the Iran and
Saudi Arabia examples, a judge imposed a criminal sentence. However,
the scope of the CRPD may not necessarily be limited to state action.
For instance, the CRPD guarantees protection of disabled people from
“all forms of exploitation, violence and abuse,”68 an obligation which
may entail state action to protect people with disabilities from private
abuse. But whatever its scope may be, it certainly includes all official
state action.
Second, the result of this action is a permanent disability under
Article 1 of the CRPD. In the Iran example, the victim would be permanently deprived of the use of his or her hand. In the Saudi Arabia example, were the spine-severing carried out, the victim would permanently
inclusion”). The World Report also enumerates types of “disabling barriers” such as negative
attitudes and inadequate policies and standards. Id. at 262.
64. Saudi Hospitals Are Asked to Maim Man as Punishment, N.Y. TIMES, Aug. 19, 2010,
www.nytimes.com/2010/08/20/world/middleeast/20saudi.html; see also Saudi Arabia: Authorities
Must Not Deliberately Paralyze Man as Punishment, AMNESTY INT’L, Aug. 20, 2010, www.
amnestyusa.org/news/press-releases/saudi-arabia-authorities-must-not-deliberately-paralyze-manas-punishment.
65. Saudi Arabia ratified both the CRPD and the Optional Protocol in June 2008. See
Secretariat for the Convention on the Rights of Persons with Disabilities, Convention and
Optional Protocol Signatures and Ratifications, U.N. ENABLE, http://www.un.org/disabilities/
countries.asp?navid=12&pid=166 (last visited Aug. 16, 2011) [hereinafter Signatures and
Ratifications].
66. Iran Cuts off Man’s Hand for Stealing, GUARDIAN, Oct. 24, 2010, http://www.guardian.
co.uk/world/2010/oct/24/iran-thief-hand-cut-off; see also Iranian Sentenced to Blinding for Acid
Attack Pardoned, BBC NEWS, July 31, 2011, http://www.bbc.co.uk/news/world-middle-east14356886 (noting Iranian court’s sentencing of a man to blinding for having blinded a woman in
an acid attack).
67. Iran ratified the CRPD in 2009. See Signatures and Ratifications, supra note 65.
68. CRPD, supra note 4, art. 16(2).

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lose the ability to walk. Article 1 of the CRPD defines “[p]ersons with
disabilities” as those who have “long-term physical, mental, intellectual
or sensory impairments . . . [that] may hinder their full and effective
participation in society on an equal basis with others.”69 The severing of
a spinal cord and the chopping off of a hand undoubtedly meet the Article 1 definition of “long-term,” given that these are permanent disabilities for which there is no hope of recovery. It should be emphasized,
though, that Article 1 imposes no permanency requirement on a disability, but rather the requirement of “long-term.”70 The second part of Article 1 is also satisfied in these examples. The severing of a spinal cord or
hand creates a disability that prevents one’s full and effective participation in society on an equal basis with others. These actions do so by
depriving someone of the use of his hand or his ability to walk.71
Third, in both instances, there is intent to impose a disability.
“Intent” for this purpose means intentionally undertaking an action that
the state knows or should know will result in disablement. There is nothing unusual in international law about such an understanding of intent.
For example, under Article 30(2) of the Rome Statute of the International Criminal Court, an individual has “intent” to cause a consequence
when he or she “means to engage in . . . conduct ” and “is aware that . . .
[the consequence] will occur in the ordinary course of events.”72 Under
Article 1 of the Convention Against Torture, moreover, “consent or
acquiescence” is sufficient to show that the torture was intentionally
inflicted.73 In the cases of Saudi Arabia and Iran, government authorities
took a specific action, which they knew would permanently disable.
Thus the disablement would be intentional.
One might argue that there is a lack of intent to inflict a disability
on these individuals, as the true reason for purposeful maiming is to
uphold religious law. The disability that results is simply a side-product
of that true intention. However, this argument confounds the subjective
motive of the governmental officials with that of an objective analysis of
an overall intent to disable. From an objective standpoint, the requisite
intent is present because officials were fully aware of the consequences
of deliberately chopping off an individual’s hand. There is an intent to
69. Id. art. 1.
70. Id. Indeed, the Secretariat of the CRPD has suggested that the CRPD can be construed as
to cover those with “short-term disabilities or persons who had disabilities in the past.” See Focus
of the Convention, supra note 49.
71. CRPD, supra note 4, art. 4.
72. Rome Statute of the International Criminal Court, art. 30(2), July 17, 1998, A/CONF.183/
9.
73. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, art. 1(1), Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp.
No. 51, U.N. Doc. A/39/51 (1984) [hereinafter CAT].

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chop a person’s hand off, and the resulting physical disability is the
objectively foreseeable consequence of that intent. Any subjective religious or other purpose is irrelevant. In other words, the element of intent
can be the knowledge that such an action will logically cause the disability and can exist in conjunction with other motives such as maintaining
security.
One additional qualification to the definition of intent is needed.
What is not covered by an intent standard is strict liability or negligence.
Many government actions, legitimate in themselves, might occasionally
and unpredictably result in an individual becoming disabled. A police
officer using reasonable force to save someone’s life might accidentally
shoot someone and cause him to be paralyzed. At that point the obligations of the CRPD would become relevant, but the state’s action in causing the paralysis would not constitute a violation. Where a state action
that is intentionally undertaken predictably causes a disability in the
majority of cases, however, it is nonsensical to say that the imposition of
the disability was not intended.74
Fourth, these two examples present conduct that produces a disability in all cases. In other words, there is no chance that an individual will
not be disabled once his spinal cord is severed or her hand is chopped
off. There is, however, no reason why the concept of disablement should
74. One might ask whether a state’s use of armed force violates the CRPD, especially given
that it predictably causes disability on the part of many individuals, civilian and soldier, enemy
and national. The answer is no: The CRPD is not the Kellogg-Briand Pact. See Treaty Providing
for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, art. 1, 46 Stat.
2343, TS No. 796, 94 LNTS 57. International law traditionally distinguishes between jus ad
bellum (the right to engage in war) and jus in bello (the law governing the conduct of war). With
regard to the former, just as a state party to a treaty that bans capital punishment is not absolutely
barred from the use of armed force even though doing so will predictably result in many deaths,
so, too, is it reasonable to read the CRPD as having nothing to say about a state’s resort to armed
force. Similarly, it is clear that whatever application the International Covenant on Civil and
Political Rights (ICCPR) may have in time of war, it does not govern a state’s decision to resort to
armed force—a matter governed by the U.N. Charter. See U.N. Charter, arts. 2(4), 51. Confining
the CRPD to actions other than the decision to use armed force has no impact on its applicability
to all other actions, including the treatment of prisoners, veterans, or the population at large.
With regard to the international law governing the conduct of war, Article 3 of the Geneva
Convention bars “mutilation” of civilians, prisoners of war, and the wounded, but not, of course,
soldiers taking part in combat. Geneva Convention Relative to the Treatment of Prisoners of War,
art. 3, Aug. 12, 1949, 6 U.ST. 3316, 75 U.N.T.S.135. See also Theodor Meron, The Humanization
of Humanitarian Law, 94 AM. J. INT’L L. 239 (2000); Kenneth Watkin, Controlling the Use of
Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AM. J. INT’L L. 1
(2004). There is controversy over whether international human rights law has any application
here, or whether armed conflict is governed solely by international humanitarian law. The CRPD
is part of human rights law, and there is no reason to think that the question of its applicability to
how war is conducted is any different from that of, say, the ICCPR. It is not necessary for the
argument in this article to resolve this larger question. If human rights law applies in some way to
the conduct of war, then so would the CRPD; if it does not, then the CRPD would not.

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be limited to actions that have one hundred percent efficacy in producing a disability. If a state action results in a disability for a particular
individual, it is irrelevant that the imposition of that action on other individuals might not have produced a disability. The affected individual is
still disabled. The question of how often the action results in disability
can be relevant to intent, as noted, but less than perfect efficacy overall
is no defense in an individual case.
In short, physical maiming of the sort that Iran committed and a
Saudi judge considered is a clear violation of the CRPD, and so is the
use of supermax confinement. First, like the decision to maim, the decision to submit an inmate to supermax confinement is obviously state
action.75 Second, as will be shown in Part IV.B., solitary confinement
produces an Article 1 disability because the psychiatric effects of prolonged supermax can be long-term and of a devastating nature.76 Third,
the production of a disability is intentional. Once again, the motive—
observance of religious law, a desire to punish or control—is irrelevant.
What matters is that a prisoner does not happen into supermax confinement; rather, a prison administrator intentionally authorizes placing the
individual into solitary confinement for punishment or for other purposes. Fourth, the disability occurs in a majority of cases. While the
devastating effects of solitary confinement do not manifest themselves
one hundred percent of the time, as they do in the context of purposeful
maiming, intentionally subjecting an inmate to long-term solitary confinement will more often than not result in severe and long-term psychological impairments.77
III.
A.

SUPERMAX SOLITARY CONFINEMENT

History of Supermax Solitary Confinement

The rise of supermax prison facilities owes much to prison overcrowding. From 1975 to 2000, the rate of incarceration in the United
States quintupled.78 The size of many state prison systems doubled.79
Prisoner administrators could no longer manage the large number of
inmates or the “inevitable tensions and conflicts that festered behind the
75. The analysis here assumes that the prison is run by the government. Where a prison is run
by a private contractor, the article assumes that the state would still be responsible, but an analysis
of this issue is beyond the scope of the article.
76. See Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 J.L. & POL’Y 325
(2006), law.wustl.edu/journal/22/p325grassian.pdf.
77. See generally id.
78. Mental Health Issues, supra note 18, at 127–28 (citing C. Haney & P. Zimbardo, The Past
and Future of U.S. Prison Policy: Twenty-five Years After the Stanford Prison Experiment, 53
AM. PSYCHOLOGIST 709 (1998)).
79. Id. at 128.

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walls.”80 Supermax was the solution. In 1983, the first supermax prison
facility in the United States opened in Marion, Illinois, in reaction to
inmates killing two of the Marion prison guards.81 Today, most
supermax facilities are modeled after the “Marion Model.”82 In this
model of incarceration, solitary confinement is used as a disciplinary
measure as opposed to a source of rehabilitation.83 This “super-maximum security approach” soon spread to other parts of the United States
with the Pelican Bay State Prison, which opened in 1989, followed by
the ADX Florence supermax-style prison in Colorado in 1994, the federal government’s main supermax facility.84 By 1997, there were fiftyseven supermax prisons in thirty-four states, and by 1998, approximately
20,000 prisoners were held in these facilities.85 By 2000, over sixty
supermax institutions were open in the United States,86 and in 2004,
forty-four states had at least one supermax facility.87
B. Current Description of Solitary Confinement in U.S.
Supermax Prisons
The cells in supermax prisons reflect the purpose of these facilities:
“to monitor, to control, to isolate.”88
Reflect for a moment on what a small space that is not much larger
than a king-sized bed looks, smells, and feels like when someone has
lived in it for 23 hours a day, day after day, for years on end. Property
is strewn around, stored in whatever makeshift way possible, clothes
and bedding soiled from recent use sit in one or another corner or on
the floor, the residue of recent meals (that are eaten within a few feet
of an open toilet) here and there, on the floor, bunk, or elsewhere in
80. Id.
81. Patrick J. Kiger, History of Solitary Confinement, NATIONAL GEOGRAPHIC, http://channel.
nationalgeographic.com/channel/solitary-confinement-history (last visited Aug. 16, 2011).
82. Haney & Lynch, supra note 30, at 495 (stating that “after the notorious federal
penitentiary at Marion where the new policy seems to have originated, a number of prison systems
(including the Federal Bureau of Prisons) have either begun or completed construction on
specialized prisons devoted entirely to long-term punitive segregation and solitary confinementlike conditions and routines”) (citations omitted).
83. Rebman, supra note 17, at 574–75.
84. Laura Sullivan, Timeline: Solitary Confinement in U.S. Prisons, NPR (July 26, 2006),
http://www.npr.org/templates/story/story.php?storyId=5579901 (stating that while there are many
state-run supermax facilities in states such as Oregon Mississippi, Indiana, Virginia, and Ohio,
ADX Florence was the “federal government’s first and only Supermax facility”); see also Shalev,
supra note 14, at 2 (stating that at least forty-four States now operate at least one supermax
prison).
85. Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief
History and Review of the Literature, 34 CRIME & JUST. 441, 443 (2006).
86. Gawande, supra note 1.
87. Arrigo & Bullock, supra note 29, at 624.
88. Sullivan, supra note 20.

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the cell.89
[The cells] are structured to deprive prisoners of most of the things
that all but the most callous commentators would concede are basic
necessities of life—minimal freedom of movement, the opportunity
to touch another human being in friendship or with affection, the ability to engage in meaningful or productive physical or mental activity,
and so on.90

With virtually around the clock surveillance and a total lack of
human contact and interaction, the effects of supermax solitary confinement are truly experiences of “stark sterility and unremitting monotony.”91 Although the exact conditions of solitary confinement differ by
prison, author Leonard Orland gives a basic description of the current
physical conditions of supermax solitary confinement:
I was placed in a 4 x 8 foot steel box with no windows, a bare light
bulb, a small peephole (which only the guards could control and
which was kept closed most of the time), a sink (occupied by three
cockroaches), a toilet, and one steel shelf on which, if the guards so
desired, a mattress could be placed for sleeping. It was very much
like being forced into a very small stalled elevator.92

Generally, the physical layout of supermax facilities is designed to
divide and isolate; prisoners in supermax facilities are divided into small
and manageable groups of individuals in cell-blocks and then placed in
their own individual cells.93 Each facility has four cell-blocks that are
called “pods,” each of which has its own shower and recreation areas.94
The individual units where inmates are confined are called “secure
housing units” (SHUs).95 These units are usually about eight feet by six
feet in size, which means that these cells are equal to the size of a bathroom.96 As in Orland’s description, there is generally a stainless steel
sink and toilet, as well as some type of desk and bed.97 The walls of the
cell are bare and white with no windows.98 Usually the only light is a
89. A Culture of Harm, supra note 30, at 968.
90. Id. at 967.
91. Madrid v. Gomez, 889 F. Supp. 1146, 1230 (N.D. Cal. 1995).
92. LEONARD ORLAND, PRISONS: HOUSES OF DARKNESS 72–74 (1975); see also Bryan B.
Walton, The Eighth Amendment and Psychological Implications of Solitary Confinement, 21 LAW
& PSYCHOL. REV. 271, 272–73 (1997); Gawande, supra note 1 (stating that the average cell is
fifty feet long and five feet wide—similar to a “dog kennel”).
93. Cold Storage: Super-Maximum Security Confinement in Indiana, HUMAN RIGHTS WATCH
(Oct. 1997), http://www.hrw.org/legacy/reports/1997/usind/ [hereinafter Cold Storage].
94. Id.
95. Elizabeth Vasiliades, Solitary Confinement and International Human Rights: Why the
U.S. Prison System Fails Global Standards, 21 AM. U. INT’L L. REV. 71, 74 (2005).
96. Hresko, supra note 16, at 10.
97. Id.
98. Id.

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bare light bulb, which hangs from the ceiling and remains on twentyfour hours a day.99 Inmates are unable to control the brightness of their
cells and are unable to tell what time of day it is.100 Prisoners who try to
shield the light can be subject to other disciplinary measures.101 The
doors of the SHUs are different from the doors used in cells in other
parts of the prison.102 They are “made of solid steel, interrupted only by
a small approximately eye-level clear window and a waist-level food
slot.”103 These doors are made of a heavy-gauge metal, which block all
light, in order to prevent inmates from throwing objects at guards and
other inmates.104 Moreover, the door is usually outfitted with strips on
each side so as to muffle any possible conversations between inmates in
adjacent cells.105 These doors “effectively cut inmates off from the
world outside the cell, muffling sound and severely restricting visual
stimulus.”106 The doors also have the effect of cutting off ventilation in
the units, so that the air becomes “heavy and dank.”107
There is usually no recreational equipment, and so prisoners generally just pace back and forth. The “the image created is hauntingly similar to that of a caged feline pacing in the zoo.”108 Indeed one inmate in
supermax solitary confinement began to think of himself as an animal,
stating:
Look at me. They have reduced me to an animal. I can’t take care of
myself, I smell, my hair is matted together, I eat all of my meals just
a few feet away from the toilet in my cell. I am living like an animal.
I am afraid I am becoming one.109

The physical exercise facilities are so limited that they are often
referred to as “dog runs.”110 Furthermore, when an inmate leaves his
cell, he must usually undergo a “visual strip search” in front of the control tower officers.111 When the prisoners are escorted from their cells to
the exercise cage, they are usually placed in restraints and are sometimes
99. Id.
100. Arrigo & Bullock, supra note 29, at 625.
101. Wilkinson v. Austin, 545 U.S. 209, 214–15 (2005).
102. Cold Storage, supra note 93.
103. Id.
104. Madrid v. Gomez, 889 F. Supp. 1146, 1228 (N.D. Cal. 1995).
105. Jeffrey Kluger, Are Prisons Driving Prisoners Mad?, TIME, Jan. 26, 2007, http://www.
time.com/time/magazine/article/0,9171,1582304,00.html.
106. Cold Storage, supra note 93.
107. A Culture of Harm, supra note 30, at 968.
108. Madrid, 889 F. Supp. at 1229.
109. A Culture of Harm, supra note 30, at 968–69; see also Dayan, supra note 25 (“If they
only touch you when you’re at the end of a chain, then they can’t see you as anything but a dog.
Now I can’t see my face in the mirror. I’ve lost my skin. I can’t feel my mind.”).
110. Mental Health Issues, supra note 18, at 126.
111. Rebman, supra note 17, at 581–82.

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also attached to a leash that is held by the escorting officer.112 These
protocols have the effect of discouraging many inmates from taking
advantage of the recreation time, as leaving the cell is actually more
humiliating than remaining in the cell.113
In some instances, the food in solitary is a tasteless block called
nutra-loaf, which contains “just enough nutrition for survival.”114
Inmates consume all meals within their cells, which deprives the prisoners of an invaluable socializing opportunity with other inmates. Thus
even mealtime has become another opportunity for sensory deprivation.
Inmates in solitary confinement are also forbidden to have a variety of
personal objects and educational materials.115 However, in the federal
supermax facility, ADX-Florence, educational and religious programs
are broadcast through the TV channels of the prison.116
In general, once a prisoner is placed in a SHU, there is very minimal human contact, and the prisoner could go years without actually
seeing another human being.117 Overall, it is difficult to pinpoint the
average length most prisoners are kept in solitary confinement because
so much of the statistics depend on the particular supermax facility as
well as the type of prisoner.118 However, once placed in solitary confinement, the prisoner is confined to the SHU for about twenty-two or
twenty-three hours a day. The remaining hour or two are for either a
brief computer-controlled shower or recreation time.119
Throughout solitary confinement, the inmates are not allowed to
talk to other inmates by yelling from cell to cell.120 Interaction with
prison guards is also severely limited, as prison officials are able to give
112. Mental Health Issues, supra note 18, at 126.
113. Rebman, supra note 17, at 582 (stating that “to some, time spent outside of the cell is
considered more degrading and torturous than remaining in the solitary confinement cells”).
114. Gawande, supra note 1.
115. Rebman, supra note 17, at 579; Solitary, THE NEW HUMANIST, Jan. 2011, http://newhu
manist.org.uk/2479/solitary (stating that “the personal belongings that prisoners may keep in their
cell are extremely limited in number and type”). In the federal supermax facility in Florence,
Colorado, an inmate’s request for a copy of two books written by Barack Obama was turned down
because giving the inmate such literature would be “potentially detrimental to national security.”
Id.
116. Supermax Prisons and the Psychological Effects of Isolation, HUMAN RIGHTS WATCH
(June 9, 2008), http://www.hrw.org/en/node/62183/section/4#_ftn58.
117. Nan D. Miller, Comment, International Protection of the Rights of Prisoners: Is Solitary
Confinement in the United States a Violation of International Standards?, 26 CAL. W. INT’L L.J.
139, 159 (1995).
118. See Alysia, Results of the “Solitary Confinement Bill” Bring Moral Victory, New Allies,
MAINE CIV. LIBERTIES UNION (Apr. 8, 2010, 2:28 PM), http://www.mclu.org/node/551 (stating
that the average length of supermax solitary confinement for “high risk prisoners” is about 205
days).
119. Hresko, supra note 16, at 8.
120. Id.

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all instructions through loud speakers.121 The only form of habitual
human contact that a prisoner in solitary has is when his meal is pushed
through a slot in the door.122 The heightened security and technology
essentially mean that inmates “may go for months or even years without
any meaningful social or physical contact.”123
For example, many supermax facilities now employ computerized
locking and tracking systems, which allow guards to observe an
inmate’s movement without any human interaction.124 The inmates are
usually watched by camera and speak through intercoms instead of
through direct contact with guards.125 Also, some newer facilities now
use videoconferencing equipment for visits so that there is never any
direct human interaction.126 Even more disturbing, some supermax facilities use “tele-medicine” and “tele-psychiatry,” which are procedures
that allow physicians to “examine” the inmates through the use of television screens located miles away.127 Sadly, “tele-medicine” seems like a
better option than the alternative of “cell front therapy,” where inmates
are required to shout their medical concerns to a physician on the other
side of the door, allowing other inmates to hear.128 If inmates have a
visitor, they are only able to interact with the visitor through a small
video screen that is located across the room and has poor sound quality.129 During the visit, the inmate must remain handcuffed, shackled,
and belly chained.130 To make matters worse, in some facilities, only
about ten percent of inmates receive visitors at all.131
The fusion of the old practice of solitary confinement and the more
modern and sophisticated technology is what really sets these supermax
facilities apart from usual solitary confinement and makes supermax solitary an “extraordinary and extreme form of imprisonment unique in the
modern history of corrections.”132

121. Id.
122. Id.
123. Miller, supra note 117, at 156.
124. Mental Health Issues, supra note 18, at 126.
125. Id.
126. Id.
127. Id.
128. Id. at 143.
129. Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1101 (W.D. Wis. 2001) (stating that the audio
quality is so poor that “some mentally ill inmates believe that the images on the video screens are
manipulated and refuse visitors”).
130. Id.
131. Id.
132. Mental Health Issues, supra note 18, at 127.

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THE MENTAL EFFECTS OF SENSORY DEPRIVATION FROM
SOLITARY CONFINEMENT CONSTITUTE DISABLEMENT
UNDER THE CRPD
A. Mental Effects

The mental effects caused by prolonged solitary confinement are
well documented and widely recognized in extensive historical evidence, clinical research, and empirical data. Solitary confinement has
“serious psychological, psychiatric, and sometimes physiological effects
on many prison inmates,” ranging from insomnia to hallucinations to
outright insanity.133
The devastating mental effects of solitary confinement were already
recognized early in the nineteenth century.134 The Cherry Hill prison
was built in Philadelphia in 1829, representing an approach to imprisonment that aimed to emphasize isolation and self-reflection over whipping and other corporal punishments. Each prisoner was kept entirely
isolated, with “absolute silence” imposed on them all.135 In 1842, after
visiting Cherry Hill, Charles Dickens characterized its system as one of
“rigid, strict, and hopeless solitary confinement.”136 Though he viewed
the prison authorities as well-intentioned, he asserted that “no man has
the right to inflict upon his fellow creature” the “dreadful punishment”
of prolonged solitary confinement.137Alexis de Tocqueville’s views on
penology were considerably stricter than Dickens’. He believed that
prisoners should be kept from communicating with each other to avoid
“mutual corruption”138 and viewed flogging as an appropriate means of
discipline.139 Even so, he was appalled by the approach taken in the
Auburn prison in New York when it opened a new wing in 1821. Speaking of the prisoners there, he wrote:
In order to reform them, they had been submitted to complete isolation; but this absolute solitude, if nothing interrupts it, is beyond the
strength of man; it destroys the criminal without intermission and
133. Lobel, supra note 22, at 117.
134. Grassian, supra note 76, at 341.
135. LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 220 (3d ed. 2005).
136. CHARLES DICKENS, AMERICAN NOTES FOR GENERAL CIRCULATION 111 (Patricia Ingham
ed. 2001).
137. Id. at 111, 113 (stating that any prisoner at Cherry Hill was “a man buried alive; to be dug
out in the slow round of years; and in the mean time dead to everything but torturing anxieties and
horrible despair”). See also FRIEDMAN, supra note 135, at 220.
138. GUSTAVE DE BEAUMONT & ALEXIS DE TOCQUEVILLE, ON THE PENITENTIARY SYSTEM IN
THE UNITED STATES AND ITS APPLICATION TO FRANCE 44 (Francis Lieber trans. 1964). For
accounts of his visits to American prisons and his views on penology, see HUGH BROGAN, ALEXIS
DE TOCQUEVILLE: A LIFE 154–56, 166–67, 189–92 (2006); LEO DAMROSCH, TOCQUEVILLE’S
DISCOVERY OF AMERICA 36–40 (2010); FRIEDMAN, supra note 135, at 220–21.
139. See DAMROSCH, supra note 138, at 39.

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without pity; it does not reform, it kills.140

Sadly, when a former warden of a modern supermax facility wrote
in 2004 that “[a]fter long-term confinement and the loss of hope for
offenders controlled under [supermax] conditions, mental deterioration
is almost assured,”141 he said nothing that had not been recognized for
well over a century and a half. There is now a large body of literature
documenting the physical and mental effects of supermax solitary confinement. Overall, the mental effects of solitary confinement, such as
post-traumatic stress disorder (PTSD) are similar to the effects seen in
torture and trauma victims.142 And they are long-lasting. Prisoners of
war during the Korean war, who were held in conditions similar to those
in supermax solitary confinement, displayed “psychosomatic ailments,
suspicion, confusion, and depression,” and were “detached from social
interaction” for as long as forty years after being released.143
The mental effects of solitary confinement are so common that psychiatrists now associate a specific psychiatric syndrome known as
Reduced Environmental Stimulation (RES) Syndrome or “isolation sickness” with prolonged solitary confinement.144 The most common symptoms associated with this syndrome include hyperresponsivity to
external stimuli, perceptual distortions, illusions and hallucinations,
panic attacks, difficulties in thinking, concentration, and memory,
“intrusive obsessional thoughts” or “emergence of primitive aggressive
ruminations,” overt paranoia, and problems with impulse control.145
These side effects comprise what Dr. Stuart Grassian, a Boston psychiatrist and former member of the Harvard Medical School faculty, has
called an “acute organic brain syndrome” or “delirium.”146 This syndrome also results in electroencephalogram (EEG) abnormalities in the
brain.147 More specifically, EEG studies show “diffuse slowing of brain
waves” in most prisoners after only a week in solitary confinement.148
This overall EEG decline is connected to “a reduction in stimulation seeking behavior.”149 Individuals in supermax solitary become
withdrawn and develop a “shut-in” or reclusive personality.150 Their
140. BEAUMONT & TOCQUEVILLE, supra note 138, at 41.
141. Culture of Harm, supra note 30, at 957 (citing JAMES H. BRUTON, THE BIG HOUSE: LIFE
INSIDE A SUPERMAX SECURITY PRISON 38 (2004)).
142. Mental Health Issues, supra note 18, at 132.
143. Grassian, supra note 76, at 383.
144. Mental Health Issues, supra note 18, at 137.
145. Grassian, supra note 76, at 336–37, 372.
146. Id. at 337.
147. Id. at 338.
148. Gawande, supra note 1.
149. Shalev, supra note 14, at 20.
150. Id. at 18.

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day-to-day mental functioning becomes impaired. There is a “drop in
sensory input,” which in turn produces a “drop in mental alertness.”151
Concentrating becomes difficult, as prisoners suffer from a decline in
motivation.152 This in turn can cause difficulty in using the speech and
motor systems coupled with a “disinclination to learn” and decline in
physical activity.153
In 1993, in preparation for a class-action lawsuit challenging the
use of solitary confinement at the Pelican Bay State Prison, Grassian
conducted an in-depth study of forty-nine inmates in that prison.154 Of
those forty-nine inmates, at least seventeen were characterized as
“actively psychotic and/or acutely suicidal” and urgently in need of hospital treatment as a result of their confinement.155 Twenty-three others
exhibited “serious psychopathological reactions to solitary confinement,” leading Grassian to declare that the sensory deprivation that
results from solitary confinement is “toxic to brain functioning.”156 In
another study, Grassian studied over two hundred prisoners in solitary
confinement and found that about a third suffered from acute psychosis
with hallucinations.157 Grassian also found that the inmates in supermax
solitary were hypersensitive to stimuli and suffering from distortions of
perception.158 In some cases inmates developed a “full-blown psychosis
and functional disability” while in supermax solitary.159
Dr. Craig Haney, a professor of psychology at the University of
California, Santa Cruz, has also researched the effects of solitary confinement.160 His study of one hundred prisoners in the Pelican Bay
Security Housing Unit reported that ninety-one percent of the prisoners
suffered from anxiety and nervousness; eighty percent suffered from
headaches, lethargy, and trouble sleeping; and seventy percent were concerned about having an “impending breakdown.”161 The prisoners also
suffered physical effects such as dizziness and heart palpitations.162
151. Id. at 20.
152. Id.
153. Id.
154. Grassian, supra note 76, at 349. The case was Madrid v. Gomez, 889 F. Supp. 1146 (N.D.
Cal. 1995). In Madrid, inmates brought suit challenging the use of solitary confinement at the
Pelican Bay facility. The court ruled that the supermax confinement did not constitute an Eighth
Amendment violation. See Id.
155. Grassian, supra note 76, at 349.
156. Id.
157. Gawande, supra note 1.
158. Arrigo & Bullock, supra note 29, at 628.
159. Kupers, supra note 15, at 1006.
160. Craig Haney, Hiding from the Death Penalty, THE HUFFINGTON POST (July 26, 2010, 6:04
PM), http://www.huffingtonpost.com/craig-haney.
161. Shalev, supra note 14, at 11.
162. Id.

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Haney identified several “social pathologies” that develop in prisoners
placed in supermax confinement.163 For example, because prisoners are
unable to organize their lives around a purpose or goal, they begin to
suffer from apathy, lethargy, and despair.164 They lose the ability to concentrate and complete even the most routine of tasks.165 They lose a
sense of self and become “literally at risk of losing their grasp on who
they are, of how and whether they are connected to a larger social
world.”166 These social pathologies of supermax confinement can “significantly interfere” with post-confinement adjustment upon release.167
When analyzing the plethora of mental and physical effects caused
by solitary confinement, one must be cognizant of the fact that the side
effects are probably worse than we know. In many cases researchers
have found that inmates have a tendency to minimize their reaction to
solitary confinement and downplay any mental health problems.168 This
was a concern present in both the Haney and Grassian studies.169
B. The Effects of Solitary Confinement Meet the Article 1
Disability Definition
1.

“LONG-TERM”

Article 1 of the CRPD defines people with disabilities as “those
who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full
and effective participation in society on an equal basis with others.”170
As previously stated, the vast majority of studies analyzing the mental
effects of supermax confinement of more than sixty days show longlasting and negative mental effects.171 Such effects include not only
“persistent symptoms of post traumatic stress . . . but also lasting personality changes—especially including a continuing pattern of intolerance
of social interaction.”172 Examples of personality changes include an
inability to tolerate even the most basic social interaction as well as
vivid flashbacks and a sense of hopelessness.173 Many studies also show
163. Mental Health Issues, supra note 18, at 137.
164. Id. at 139.
165. Id.
166. Id.
167. Id. at 144.
168. Shalev, supra note 14, at 12.
169. Id.
170. CRPD, supra note 3, art. 1. The World Report on Disability, which is meant to “facilitate”
the implementation of the CRPD, defines disability as “complex, dynamic [and]
multidimensional.” World Report on Disability, supra note 2, at 3.
171. Lobel, supra note 22, at 118.
172. Grassian, supra note 76, at 353.
173. Id.

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serious and long-term effects such as chronic isolation syndrome.174
Such prolonged mental effects undoubtedly meet the CRPD definition of
“long-term.” Moreover, that some of these effects might recede in varying degrees in some individuals after release from solitary confinement
does not diminish the fact that solitary confinement still imposes a significant chance that the inmate will indeed “suffer permanent harm as a
result of such confinement.”175
2.

“FULL

AND EFFECTIVE PARTICIPATION”

The long-term and sometimes permanent effects caused by solitary
confinement create an inability for the inmate to participate in society
upon release, thereby hindering his or her “full and effective participation in society,” as stated in Article 1 of the CRPD. A preliminary question concerns the meaning of “participation in society.” Plainly, the term
“society” as used in the CRPD includes prison. While a major concern
of the use of solitary confinement relates to its impact on prisoners’
ability to function effectively after release from prison, the CRPD is also
concerned with the prisoners’ ability to function effectively in prison.
Article 14 makes it clear that the CRPD does protect persons in
prison.176 Of course, “full and effective participation in society” is contextual; prisoners, for example, do not have the same freedom of movement as those not in detention. Consequently, “full and effective
participation” is implicated not only by impediments to functioning
upon release from prison, but also by impediments to functioning effectively as a prisoner upon release from supermax confinement to the general prison facilities.
While in solitary confinement, all parts of the prisoners’ daily life
are controlled in the solitary unit.177 As a result, inmates effectively lose
any ability to control their behavior or to set limits for themselves.178
Moreover, prisoners in supermax solitary begin to “lose the ability to
initiate behavior of any kind . . . because they have been stripped of any
opportunity to do so for such prolonged periods of time.”179
Human beings rely on social interaction with other people in order
174. Smith, supra note 85, at 495.
175. Grassian, supra note 76, at 332.
176. Article 14(2) provides:
States Parties shall ensure that if persons with disabilities are deprived of their liberty through
any process, they are, on an equal basis with others, entitled to guarantees in accordance with
international human rights law and shall be treated in compliance with the objectives and
principles of this Convention, including by provision of reasonable accommodation. CRPD, supra
note 4, art. 14.
177. Mental Health Issues, supra note 18, at 139.
178. Id.
179. Id.; see also Arrigo & Bullock, supra note 29, at 628.

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to test their understanding of their surroundings.180 Without this opportunity, inmates in supermax confinement begin to blur the distinction
between fantasy and reality.181 The inmates also become “unnaturally
sensitive, and vulnerable to the influence of those who control the environment around them.”182 Inmates then begin to act out in anger as a
result of developing intense frustration and rage while in solitary.183
“[I]rrational anger” and being “consumed with revenge fantasies”184 are
characteristic of maladaptive strategies that inmates use to cope and survive in supermax solitary. Suicide attempts and self-mutilation are also
tragic effects that occur with more frequency in solitary confinement.185
These effects are devastating for those prisoners who might one day be
integrated back into the general prison population.
As expected, these psychiatric effects hinder one’s “full and effective participation within society” upon release, whether in the context of
the general prison environment or the community at large. Grassian has
stated that prolonged solitary confinement creates “a handicap . . . which
severely impairs the inmate’s capacity to reintegrate into the broader
community upon release from imprisonment”186 and leaves the “individual socially impoverished and withdrawn, subtly angry and fearful when
forced into social interaction.”187 It is a sad paradox that after yearning
for human interaction for so long, individuals released from supermax
solitary become unable to tolerate social interaction upon release.188
Prisoners become unable to “manage” their conduct when they are
released into the world.189 They are more likely to have clinical depression and long-term impulse-control disorder.190 Because so much of our
personality and identity is socially constructed, the loss of all social contact leads to “a disconnection of experience from meaning” and creates a
risk of prisoners “losing their grasp on who they are.”191 It is hard to
imagine a set of side effects more problematic for these inmates who one
day will be expected to survive and function in the world outside
supermax facilities.
180. Id. at 627.
181. Id.
182. Id.
183. Id. at 628.
184. Gawande, supra note 1.
185. Id.; see also Kupers, supra note 15, at 1009 (stating that about half of the successful
suicides in prison occur in the six to eight percent of those inmates in solitary confinement).
186. Grassian, supra note 76, at 333.
187. Id. at 353.
188. Arrigo & Bullock, supra note 29, at 627.
189. Id. at 628.
190. Id.
191. Mental Health Issues, supra note 18, at 139.

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“LONG-TERM”

PSYCHIATRIC CONSEQUENCES

The consistency with which supermax solitary has devastating
mental effects is clear; however, one possible issue with utilizing the
framework of the CRPD for a disablement claim is that fewer than one
hundred percent of those placed in supermax solitary confinement actually suffer from an Article 1 mental disability as a result.
Variability in mental effects has proved to be legally significant in
U.S. law. In 1995, while reviewing the conditions of California’s first
supermax prison, a California federal court ruled that even though solitary confinement may “hover on the edge of what is humanly tolerable
for those with normal resilience,” there could be no valid objection to its
use because such confinement failed to make every inmate go insane.192
More specifically, the routine use of solitary confinement did not pose
“a sufficiently high risk to all inmates of incurring a serious mental illness.”193 It is possible that variability in the frequency of mental disabilities might be an obstacle for disablement claims, as this lack of
inevitable disability differentiates solitary confinement from physical
maiming. Overall, the frequency with which disabilities develop from
solitary confinement depends on many factors such as one’s pre-existing
mental state and the amount of time one spends in solitary.
a.

pre-existing mental state

In his 2006 study, Grassian stated that there “is great variability
among individuals in regard to their capacity to tolerate a given condition of sensory restriction.”194 He noted that generally, those with a
“mature, healthy personality” and average intelligence usually demonstrate fewer psychiatric consequences due to solitary confinement.195
Human Rights Watch stated that “[h]ow destructive [solitary confinement is] depends on each inmate’s prior psychological strengths and
weaknesses.”196 The organization went on to say that:
Although not everyone will manifest negative psychological effects
to the same degree, and it is difficult to specify the point in time at
which the destructive consequences will manifest themselves, few
[long-term supermax inmates] escape unscathed . . . . The psychological consequences of living in these units for long periods of time are
predictably destructive, and the potential for these psychic stressors
192.
193.
194.
195.
196.

Madrid v. Gomez, 889 F. Supp. 1146, 1280 (N.D. Cal. 1995).
Id. at 1267.
Grassian, supra note 76, at 347.
Id. at 348.
Cold Storage, supra note 93.

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to precipitate various forms of psychopathology is clear-cut.197

A wide range of psychiatric reactions are possible, as some people suffer
all symptoms of RES syndrome, some suffer only a few, and some suffer none at all.198 However, in another study performed by both Grassian
and Dr. Nancy Friedman, results showed that even some prisoners with
no previous psychotic tendencies became “grossly psychotic.”199
b.

the amount of time spent in supermax solitary

The amount of time one spends in solitary confinement has some
impact on the frequency with which permanently disabling mental
effects occur. In this article, “long-term” solitary confinement is the
focus of my discussion, but what exactly constitutes “long-term” solitary
confinement can be nebulous. How long does one’s placement in solitary have to be before negative side effects become disabling in the
“long-term” under the CRPD? Many studies analyzing the mental
effects of supermax confinement state that more than sixty days in solitary will create long-lasting and negative mental effects.200 Other studies
have said ten days.201 Dr. Kaufman has studied the effects of solitary
confinement in consideration of the amount of time spent in the cell.202
He found that after only a few hours in solitary confinement, the prisoner’s brain waves “shift[ed] toward a pattern characteristic of stupor
and delirium.”203 Studies at Montreal McGill University show that with
intense sensory deprivation (elimination of sounds, sight, and tactile
stimulation), the subject can experience hallucinations within as little as
forty-eight hours.204 The American Correctional Association, on the
other hand, has designated thirty days as the time when detrimental
mental effects usually appear and when a prisoner must be psychologically evaluated.205
While there is some variation in the precise amount of time before
these effects occur, it is clear that those prisoners placed in solitary confinement are less likely to be rehabilitated and are much more likely to
become violent rather than less so.206 What is also clear is that despite
some variability stemming from individual characteristics or other con197.
198.
199.
200.
201.
202.

Id.
Smith, supra note 85, at 493.
Walton, supra note 92, at 279.
Lobel, supra note 22, at 118.
Mental Health Issues, supra note 18, at 132.
Edward Kaufman, The Violation of Psychiatric Standards of Care in Prisons, 137 AM. J.
PSYCHIATRY 566, 666, 569 (1980).
203. Kluger, supra note 105.
204. Id.
205. Walton, supra note 92, at 282.
206. Kiger, supra note 81.

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textual factors, there is “remarkable consistency” in finding negative
mental health effects after supermax solitary.207 To ignore the consistent
data and studies on supermax solitary confinement would be ethically
and politically irresponsible.
In sum, the mental effects of supermax confinement produce a disability within the meaning of the CRPD. Supermax solitary confinement
socially incapacitates inmates while in prison and produces prolonged or
permanent psychiatric disabilities including impairments, which “may
seriously reduce the inmate’s capacity to reintegrate into the broader
community upon release from prison.”208
V.

ARTICLE 15
A.

AS

ANOTHER AVENUE

FOR A

DISABLEMENT CLAIM

Supermax Confinement as Torture or Cruel and
Inhuman Treatment

Article 15 is another possible basis for claiming a violation of the
CRPD. Article 15 states: “No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his or her free consent to medical or sci207. Shalev, supra note 14, at 10. All studies of inmates who have been detained more than ten
days involuntarily show negative physical and mental health effects. Id. at 21; see also Mental
Health Issues, supra note 18, at 132 (stating that “there is not a single published study of solitary
or supermax-like confinement in which non-voluntary confinement lasting for longer than 10 days
. . . failed to result in negative psychological effects”); Kupers, supra note 15, at 1006 (stating that
all prisoners held in supermax confinement for longer than three months have “lasting emotional
damage” or “full-blown psychosis and functional disability”). Even federal judges continually
recognize the detrimental effects of solitary confinement. See Jones ‘El v. Berge, 164 F. Supp. 2d
1096 (W.D. Wis. 2001); Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999), rev’d and
remanded for further findings sub. nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001);
Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995). While the consensus is clear, one study by
the Colorado Department of Corrections has recently reached a different conclusion, sparking
much controversy and dissent. ACLU and Experts Slam Findings of Doc Report on Solitary
Confinement, ACLU (Nov. 29, 2010), http://aclu-co.org/news/aclu-and-experts-slam-findings-ofdoc-report-on-solitary-confinement. The study, entitled “One Year Longitudinal Study of the
Psychological Effects of Administrative Segregation,” concluded that supermax solitary
confinement does not cause the health of mentally ill prisoners to deteriorate. Id. The ACLU
pointed out that this conclusion contradicts “considerable previous research” and “prevailing
expert opinion.” Id. Dr. Terry Kupers, an expert on the mental effects of prison confinement,
stated, “[T]he methodology of the study is so deeply flawed that I would consider the conclusions
almost entirely erroneous.” Id. He also pointed out that the researchers “did not even spend time
talking to the subjects about their experience in supermax” and “minimize[d] the emotional pain
and suffering because they judge[d] the prisoners to have been already damaged before they
arrived at supermax.” Id. Dr. Kupers then went on to say that the report only included prisoners
who volunteered and who were able to read and write, thus excluding two groups of inmates who
would be most severely impacted by supermax solitary—“those who refuse to participate in social
interaction and those unable to pass time by reading and writing.” Id.
208. Grassian, supra note 76, at 354.

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entific experimentation.”209 It is important to note that an Article 15
claim would be entirely separate from an Article 4 claim under the
CRPD. An Article 4 claim in no way depends on an assertion that solitary confinement constitutes torture or cruel or inhuman punishment.
Article 15 provides an additional, independent basis for evaluating
supermax confinement.
Given its dehumanizing and extreme impact on an individual’s
mental health, supermax confinement would seem to present a textbook
case of torture. The Convention Against Torture is quite relevant to the
interpretation of Article 15 of the CRPD. The United States is a party to
the Convention Against Torture.210 When the United States ratified that
treaty, it specifically added an understanding defining torture.211 As
shown below, supermax confinement would seem to qualify as torture
under this definition.
Even if it were not torture, however, supermax confinement would
still be inconsistent with Article 15.212 Generally, when one of the elements of the definition of torture is not present, certain acts and treatment such as solitary confinement will amount to “cruel, inhuman or
degrading treatment or punishment.”213 Manfred Nowak, the Special
Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, stated that prolonged isolation could constitute
cruel and inhuman treatment and “in certain instances” even torture.214
This conclusion finds support in several sources. The United Nations
Human Rights Committee (HRC) has stated that the phrase “cruel, inhuman or degrading” in Article 7 of the International Covenant on Civil
and Political Rights “should be interpreted so as to extend to the widest
possible protection against abuses” in order to protect an individual from
the deprivation of the use of “any of his natural senses, such as sight or
hearing or of his awareness of place and the passing of time.”215 This
broad interpretation could also apply to supermax solitary confinement,
given that many cells lack windows and are padded to make them
209. CRPD, supra note 4, art 15.
210. U.N. Secretary General, Treaty Collections: Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Sept. 5, 2011), http://treaties.un.org/Pages/View
Details.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en [hereinafter CAT Treaty
Collections].
211. Id.
212. Vasiliades, supra note 95, at 96.
213. Office of the High Commissioner for Human Rights, Expert Meeting on Freedom from
Torture, Cruel, Inhuman or Degrading Treatment or Punishment and Persons with Disabilities;
Guide to Discussion for Participants, (Dec. 11, 2007).
214. U.N. Secretary-General, supra note 19.
215. Shalev, supra note 14, at 4.

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soundproof.216 The HRC has also pointed out that solitary confinement
for a prolonged amount of time and not under exceptional circumstances
may constitute torture and cruel, inhuman or degrading treatment or
punishment.217 The European Court of Human Rights, moreover, has
ruled, “[I]nhumane treatment covers at least such treatment as that
which deliberately causes severe suffering, mental or physical . . . or
treatment that drives [one] to act against his own will or conscience.”218
B. Disablement and Article 15
There is a second way in which supermax confinement could violate Article 15. Unlike the first type of violation,219 this violation would
depend on both Article 15 and Article 4. Torture or cruel and inhuman
treatment has long-lasting effects that produce a disability. Thus,
supermax solitary confinement would amount to torture or cruel and
inhuman treatment under Article 15 of the CRPD, and its effects during
and after release from such confinement would amount to disablement
under Articles 1 and 4.
The concept of disablement through torture is not new in the world
of international human rights. One need only look to the language and
purpose of the World Programme of Action Concerning Disabled Persons (World Programme), which recognizes such a concept, stating that:
With the emergence of “victimology” as a branch of criminology, the
true extent of injuries inflicted upon the victims of crime, causing
permanent or temporary disablement, is only now becoming generally known. Victims of torture who have been disabled physically or
mentally, not by accident of birth or normal activity, but by the deliberate infliction of injury, form another group of disabled persons.220

This is highly significant and informs the concept of disablement in the
CRPD. This language recognizes that torture can produce a disability
and even designates those disabled by torture as a separate, legally distinct group of people. Such language gives credence to a possible disablement claim under Article 15 of the CRPD in that Article 15 can be
viewed as a continuation of the World Programme’s prohibition of disablement through torture. In other words, the text of Article 15, especially when read in conjunction with the World Programme, can be read
as implicitly saying that people in general (those with and without disa216. Hresko, supra note 16, at 10; Kluger, supra note 105.
217. Shalev, supra note 14, at 33 (citations omitted).
218. Soering v. United Kingdom, 11 Eur. Ct. H.R. 439, 489 (1989).
219. See supra Part IV.
220. See Secretariat for the Convention on the Rights of Persons with Disabilities, World
Programme of Action Concerning Disabled Persons, U.N. ENABLE, http://www.un.org/
disabilities/default.asp?id=23 (last visited Aug. 16, 2011).

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bilities) have an explicit right to not only be free from torture and “inhuman” treatment, but also to be free from disablement though the use of
torture or “inhuman” treatment.
VI.

U.S. RATIFICATION

AND

IMPLEMENTATION

OF THE

CRPD

If the Obama Administration or some future administration submits
the CRPD to the Senate for its advice and consent, ratification of the
treaty will make it the “supreme Law of the Land” under the Supremacy
Clause of the Constitution.221 This Part discusses two key questions
relating to the impact of ratification. First, what do the CRPD and U.S.
law provide with regard to implementation and enforcement? Second,
how might the terms on which the Senate gives its consent to ratification
affect the implementation and enforcement of the treaty?
A.

The CRPD’s Provisions for Implementation and Enforcement

Article 32 of the CRPD requires states to take “appropriate and
effective” steps to implement the CRPD through international cooperation.222 More importantly, the CRPD obligates states to take a variety of
domestic steps to ensure implementation. Parties to the CRPD must
adopt “appropriate” legislation and take “other measures” in order to
implement the legislation.223 The state party must implement the Article
4 measures to the “maximum of its available resources.”224 Under Article 4(1)(c), state parties must consider the “protection and promotions of
the human rights of persons with disabilities in all policies and programmes.”225 Article 4(1)(d) also imposes a broad obligation on state parties
to “refrain from engaging in any act or practice that is inconsistent with
the present Convention.”226 In light of its effects on individuals, the
CRPD will require state parties to enact legislation against the use of
supermax confinement. To the extent that a state continues to use it,
prison officials will have to collect statistical information and conduct
research to show compliance with the purpose and policies of the CRPD.
This might include psychological evaluations of prisoners and in-depth
tracking of the frequency and extent of solitary confinement use.227
A variety of national and international enforcement mechanisms
221. U.S. CONST. art. VI, cl. 2.
222. CRPD, supra note 4, art. 32, art. 40(1).
223. Id. art. 4(1)(a).
224. Id. art. 4(2).
225. Id. art. 4(1)(c).
226. Id. art. 4(1)(d).
227. Given the effects of supermax solitary confinement, however, it is almost certain that such
monitoring would show that the use of supermax confinement is inconsistent with the CRPD, so
ultimately compliance would entail ceasing to use it.

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could also be employed once the CRPD is ratified. Article 34 of the
CRPD provides for a Committee on the Rights of Persons with Disabilities.228 Parties to the CRPD are required to submit reports to the Committee every four years concerning the implementation of the goals of
the convention.229 While the Committee has no binding power over state
parties, the very process of international examination of U.S. policy
could place some pressure on the United States to change practices that
are inconsistent with the CRPD.
Domestically, Article 33(2) of the CRPD requires state parties to
establish independent mechanisms and organizations that will “promote,
protect and monitor the implementation of the present Convention.”230
In particular, states must identify an office within the government that
will be responsible for issues relating to the implementation of the
CRPD.231 By requiring not only international but also domestic monitoring, the CRPD has created a second and important layer of enforcement.
This requirement has been used before in the 2006 Optional Protocol to
the Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (OPCAT), which required that national officials visit detention facilities.232 These national reporting requirements
are significant, as the “struggle for human rights will be won or lost at
the national level.”233
One final implementation mechanism is unlikely to be available in
the case of the United States: the individual petition procedure under the
Optional Protocol to the CRPD. Under the Optional Protocol, individuals can present complaints to the Committee, and the Committee has the
authority to conduct inquiries into the alleged violations of the CRPD.234
The United States, however, has not signed the Optional Protocol235 and
seems unlikely to submit itself to any type of individual complaint
mechanism.

228. CRPD, supra note 4, art. 34.
229. Id. art. 35(2).
230. Id. art. 33(2).
231. Id. art. 33(1).
232. Gautheir De Beco, Article 33(2) of the U.N. Convention on the Rights of Persons with
Disabilities: Another Role for National Human Rights Institutions?, 29 NETH. Q. OF HUM. RTS.
84, 87 (2011).
233. Id. at 87 (citing Jack Donnelly, Post-Cold War Reflections on the Study of International
Human Rights, 8 ETHICS & INT’L AFF., 97, 117 (1994)).
234. CRPD, supra note 4, Annex II, arts. 1–7.
235. Signatures and Ratifications, supra note 65.

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B. The Impact on U.S. Law
1.

THE IMPACT OF

“CLEAN”

RATIFICATION OF THE CRPD

If the Senate were simply to ratify the CRPD with no conditions,
the treaty might well have a profound impact on the use of supermax
confinement. Under Article VI of the Constitution, a ratified treaty is the
supreme law of the land.236 This would make the CRPD superior to all
state law and earlier federal statutes.237 Individuals confined in
supermax facilities could therefore seek relief in court under the CRPD,
so long as the CRPD were self-executing under U.S. law.238 As the
Supreme Court noted in Medell´ın v. Texas,239 self-executing treaties
“automatically have effect as domestic law,” whereas non-self-executing
treaties, though they “constitute international law commitments—do not
by themselves function as binding federal law.”240
Under the Restatement, a treaty is “non-self-executing” only if (1)
the treaty itself manifests such an intention, (2) the Senate makes it nonself-executing as a condition of ratification, (3) or the constitution
requires implementing legislation. Nothing in the United States Constitution would require implementing legislation.241 As to the first requirement, there does not appear to be any intention in the CRPD to require
that it be non-self-executing. On the contrary, Article 4(1)(b) requires
states to “take all appropriate measures” to bring domestic law into conformity; these measures include legislation, but are not limited to it. One
might argue that Medell´ın requires a conclusion that the CRPD is nonself-executing. Medell´ın emphasized the word “undertakes” as a way of
showing an intent by state parties that a treaty be non-self-executing.242
The Court treated the use of that word as indicating something more like
a promise to take action, rather than an acceptance of a presently binding
obligation. The word “undertake” or some variation appears in the
CRPD thirteen times.243 The context of Medell´ın was, however, quite
different. In Medell´ın, there was an underlying concern that finding selfexecution in the case before it would deprive the United States of its
flexibility in the U.N. Security Council concerning the enforcement of
236. U.S. CONST. art. VI, cl. 2.
237. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 115
cmt. e (1987)
238. Restatement § 111 (“Courts in the United States are bound to give effect to . . .
international agreements of the United States, except that a ‘non-self-executing’ agreement will
not be given effect as law.”).
239. 552 U.S. 491 (2008).
240. Id. at 504.
241. Restatement §111.
242. Medell´ın, 552 U.S. at 492.
243. CRPD, supra note 4, preamble, art. 4, art. 8, art. 23, art. 29, art. 31, art. 32.

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orders by the International Court of Justice.244 No such circumstance
would be present in a challenge to supermax facilities.
A better approach focuses on the comment in the Restatement that
“[s]ome provisions of an international agreement may be self-executing
and others non-self-executing.”245 The issue of self-execution should not
be determined for the treaty as a whole, but on a case-by-case basis.
Some provisions clearly would require implementing legislation or perhaps executive action. Any obligation that could be enforced by traditional injunctive relief, on the other hand, would seem appropriate for
self-executing status. The treaty concerns individual rights and obligates
state parties to ensure that persons who are disabled have access to justice.246 An injunction against the use of supermax facilities would be
entirely within a court’s traditional competence.247
As the Restatement notes, however, the Senate does have the power
to attach a condition to ratification providing that the treaty should be
non-self-executing. Whether the Senate would do so in the case of the
CRPD is of great significance because, as shown, without such a condition there would be a very strong basis for a court to enjoin the use of
supermax facilities as a violation of the CRPD. Even with such a condition, the treaty would still have some significance in U.S. courts. Courts
would consider the CRPD in construing federal and state regulations and
statutes and in interpreting the Constitution.248 Still, the question of the
conditions that the Senate might attach to ratification (including regarding self-execution) is an important one and is discussed in the next
section.
2.

THE IMPACT OF CONDITIONS TO THE SENATE’S CONSENT
TO RATIFICATION

The United States has never given a human rights treaty a “clean”
ratification—that is, one devoid of qualifying reservations, understand244. Medell´ın, 552 U.S. at 492.
245. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111
cmt. h (1987).
246. CRPD, supra note 4, art. 13.
247. Cf. Brown v. Plata, 131 S. Ct. 1910 (2011) (upholding federal court order to end
overcrowding in California prisons).
248. See Roper v. Simmons, 543 U.S. 551, 554, 578 (2005) (acknowledging the
“overwhelming weight” of international law and of the Convention on the Rights of the Child
(CRC) when striking down the juvenile death penalty, despite the United States not having ratified
the CRC); see also Atkins v. Virginia, 536 U.S. 304 (2002); State v. Romano, 155 P.3d 1102,
1114 n.14 (Haw. 2007) (relying partially on the United Nations Convention for the Suppression of
the Traffic in Person and the Exploitation of the Prostitution of Others); In re Peggy, 767 N.E.2d
29, 38 (Mass. 2002) (stating that while the CRC is not binding on U.S. courts, the ruling of the
court was “completely in accord with principles expressed therein”).

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ings, and declarations (RUDs). It is unlikely that any ratification of the
CRPD will depart from this pattern. Accordingly, it is important to consider what kinds of RUDs the Senate might adopt in any future ratification of the CRPD and what impact they would have on the United
States’ use of supermax facilities.
The Senate’s use of RUDs will likely fall into two categories: those
that affect implementation and enforcement of the CRPD and those that
affect the substantive obligations the United States takes on in ratifying
the CRPD. As an examination of the likely RUDs makes clear, the conditions the Senate adopts will have a significant impact on domestic
implementation and enforcement, but are unlikely to prevent ratification
of the CRPD from having important effects on the use of supermax
facilities.
a.

RUDs relating to implementation and enforcement

Past U.S. practice indicates that the Senate will likely adopt two
RUDs that will affect domestic implementation and enforcement. The
first is a provision declaring that the entire treaty is non-self-executing.
The United States adopted such a declaration in connection with the
International Covenant on Civil and Political Rights,249 the International
Covenant on the Elimination of Racial Discrimination,250 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.251 Such a declaration would deprive federal and
state courts of the power to enforce the treaty. Critics have decried the
practice and suggested ways to lessen its impact,252 but inclusion of such
a provision appears highly likely if the CRPD is to win ratification.
249. See US ICCPR conditions, supra note 42; U.N. Secretary-General, Treaty Collections:
International Covenant on Civil and Political Rights (Aug. 21, 2011), http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (stating that the “the
United States declares that the provisions of articles 1 through 27 of the Covenant are not selfexecuting”).
250. U.N. Secretary-General, Treaty Collections: International Convention on the Elimination
of All Forms of Racial Discrimination (Oct. 21, 1994), http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en#EndDec (stating that “the United
States declares that the provisions of the Convention are not self-executing”).
251. CAT Treaty Collections, supra note 210 (stating that “the United States declares that the
provisions of articles 1 through 16 of the Convention are not self-executing“).
252. E.g., David Sloss, The Domestication of International Human Rights: Non-Self-Executing
Declarations and Human Rights Treaties, 24 YALE J. INT’L L. 129 (1999); see also Harold
Hongju Koh, Commentary, Is International Law Really State Law?, 111 HARV. L. REV. 1824
(1998). Even Harold Koh, the current legal advisor at the Department of State, has criticized the
United States’ pattern of RUDs, stating, “To proceed with such a qualified, ‘swiss cheese’
ratification in which the legal exceptions would overshadow the core act of ratification would be
politically unwise, legally questionable, and practically unnecessary to protect American national
interests.” Harold Hongju Koh, Why America Should Ratify the Women’s Rights Treaty
(CEDAW), 34 CASE W. RES. J. INT’L L. 263, 271 (2002).

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Ratification even with a non-self-execution declaration would have
some impact. Courts are bound to take even a non-self-executing treaty
into account in interpreting domestic law. Ratification would formally
commit the United States to the basic aims of the CRPD, making clear,
for example, that the United States could not reject international criticism of how it handles disability issues as an intrusion on its sovereignty. And it would give a rallying point for domestic advocates for
people with disabilities.
A second likely condition concerning implementation and enforcement would be an understanding concerning federalism. In ratifying the
International Covenant on Civil and Political Rights (ICCPR), the
United States stated that it understood
that this Covenant shall be implemented by the Federal Government
to the extent that it exercises legislative and judicial jurisdiction over
the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise
jurisdiction over such matters, the Federal Government shall take
measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate
measures for the fulfillment of the Covenant.253

The U.S. government also submitted a similar understanding when it
ratified the Convention Against Torture.254 These federalism understandings have come under severe criticism.255 While their meaning is
not entirely clear, these reservations are plainly intended to create some
kind of division of responsibilities between the federal government and
the states in implementing the treaty. It seems likely that a similar proviso will be included in any ratification of the CRPD. With the exception of a few federally run supermax prisons such as the ADX Florence
and the USP Marion facility, most other supermax facilities are staterun.256 Such an understanding could complicate application of the CRPD
to state supermax facilities.
b.

RUDs limiting the substantive scope of the CRPD

Typically, when the United States has ratified human rights treaties,
it has made use of reservations and understandings to bring the United
States’ treaty obligations into conformity with existing domestic law.
This approach undercuts much of the domestic benefits of ratification,
253. US ICCPR Conditions, supra note 42.
254. CAT Treaty Collections, supra note 210.
255. See Carlos Manuel V´azquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV.
1317, 1353–57 (1999). But see Edward T. Swaine, Does Federalism Constrain the Treaty
Power?, 103 COLUM. L. REV. 403, 442–43, 425 n.96 (2003).
256. Arrigo & Bullock, supra note 29, at 624.

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but it seems likely that the Senate will utilize such conditions in the case
of the CRPD. The difference between this kind of RUD and those that
relate to implementation and enforcement is important. The latter have
no impact on U.S. obligations on the international plane. For example,
even if a treaty is non-self-executing, the United States remains obligated as a matter of international law to implement its provisions. In
contrast, substantive adjustments to the obligations of the treaty do
affect the extent of U.S. obligations on the international plane.
Past examples of the practice of limiting the treaty obligations the
United States takes on are numerous. Some of them are quite specific.
For example, when the United States ratified the ICCPR, it reserved the
right to apply the death penalty to those who were juveniles at the time
they committed a crime.257 At the time, U.S. law permitted such executions,258 but Article 6 of the ICCPR forbade them.259 As noted earlier,
when the United States ratified the Convention Against Torture, it limited the definition of Torture under Article 1 by adopting an “understanding” that no act inflicting severe mental pain could constitute
torture unless the mental suffering was “specifically intended to inflict
severe physical or mental pain”; the pain was “prolonged”; and the
mental harm resulted from certain specified conditions, including the
“administration . . . [of] procedures calculated to disrupt profoundly the
senses or personality.”260 According to the Department of Justice, this
understanding was so that “mental torture would rise to a severity seen
in the context of physical torture.”261
Other RUDs have been framed more broadly. One example relates
to Article 16 of the Convention Against Torture, which prohibits “cruel,
inhuman or degrading treatment or punishment.”262 When the United
States ratified the Convention Against Torture, it adopted a reservation
that it would be bound by Article 16 “only insofar as the term ‘cruel,
inhuman or degrading treatment or punishment’ means the cruel and
unusual punishment prohibited” by the Constitution.263
As to the RUDs that the Senate might consider in relation to the
257. See US ICCPR Conditions, supra note 42; see also David P. Stewart, United States
Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations,
Understandings, and Declarations, 42 DEPAUL L. REV. 1183 (1993).
258. See Stanford v. Kentucky, 492 U.S. 361 (1989), overruled by Roper v. Simmons, 543
U.S. 551 (2005).
259. International Covenant on Civil and Political Rights art. 6, Dec. 16, 1966, S. Treaty Doc.
No. 95–20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171.
260. CAT Treaty Collections, supra note 210.
261. Memorandum from Jay C. Bybee, Office of Legal Counsel, U.S. Dep’t of Justice, to
Alberto Gonzales, Counsel to the President 18 (Aug. 1, 2002).
262. CAT Treaty Collections, supra note 210.
263. Id.

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CRPD, the most obvious candidate concerns Article 15 of the treaty.
The United States might well adopt a declaration concerning the meaning of torture and a reservation regarding cruel, inhuman or degrading
treatment or punishment along the lines of the RUDs adopted in connection with the Convention Against Torture. Presumably the intention
would be to limit the U.S. obligations under the CRPD to those of current domestic law. If successful, adoption of such RUDs could preclude
the Committee from criticizing the United States’ use of supermax facilities as a violation of the CRPD.
In gauging whether these RUDs would have their intended effect,
two considerations are paramount. First, what substantive impact would
they have on the United States’ obligations regarding torture and cruel,
inhuman or degrading treatment or punishment? Second, would they be
valid under international law? With regard to the first point, there is a
potential tension between the two RUDs. The declaration on mental suffering as torture would not, by its terms, seem to rule out application of
the CRPD to supermax facilities. The reservation regarding cruel and
unusual punishment would.
Article 15 of the CRPD does not define torture, but the definition in
Article 1(1) of the Convention Against Torture might well give guidance. That Article defines torture as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person.”264 As previously stated, the U.S. declaration on torture would preclude mental suffering from constituting torture unless the harm was
prolonged and rose to the severity of physical pain. This requirement
would be satisfied in the case of supermax facilities because loneliness
can actually manifest itself as severe physical pain, making solitary confinement a form of “no-touch torture”265 and causing the mental effects
of solitary confinement to fit under the United States’ tailored definition
of torture.
The U.S. declaration on torture also added requirements that the
suffering be intentionally inflicted—the declaration refers to suffering
“specifically intended” to inflict severe mental pain, as the result of procedures “calculated” to “profoundly disrupt” the senses or personality.266 Certainly supermax facilities meet the latter criterion: the whole
point is to disrupt the senses. If such a declaration is read, though, to
require that officials be driven by evil motives—that is, if they must
want to inflict pain and to destroy personality—then it could present a
264. CAT, supra note 73, art. 1.
265. Kluger, supra note 105.
266. CAT Treaty Collections, supra note 211.

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serious obstacle.267 However, such an extreme reading of the declaration
should be avoided.268
A U.S. reservation on the meaning of cruel, inhuman or degrading
treatment or punishment under Article 15 of the CRPD would likely
limit it to whatever constitutes cruel or unusual punishment under the
Constitution. This reservation could well be a problem for application of
Article 15 to supermax facilities, because as noted earlier, courts have so
far rejected challenges to prolonged solitary confinement under the
Eighth Amendment.269 Paradoxically, this could mean that the use of
supermax facilities could constitute torture under Article 15, but not
cruel, inhuman or degrading treatment under Article 15. How U.S.
courts or the Committee might resolve this paradox remains to be seen.
The second question one might raise about the reservations to Article 15 is whether they are valid under international law. Article 46 of the
CRPD provides that “[r]eservations incompatible with the object and
purpose of the present Convention shall not be permitted.”270 Given the
fundamental nature of the ban on torture under international law—it
constitutes a peremptory norm271—one might wonder how any qualification to or limitation on a treaty provision banning torture could be
compatible with its object and purpose. While this question is important—and could have relevance to the potential RUDs discussed
below—there is no definitive mechanism for resolving disputes over the
validity of reservations. The likely declaration that the treaty is non-selfexecuting means that U.S. courts would not have the occasion to rule on
this question, and while the Committee could express views on the subject, the United States would almost certainly consider such comments
to be non-binding. In any event, for the reasons given in the next section,
the validity or invalidity of any Article 15 RUD will have little impact
on the application of the CRPD to supermax facilities.
Potential RUDs for other parts of the treaty will likely pose more
difficult problems for the Senate. Already there is some political sparring over highly controversial issues. For example, U.S. officials have
stated in reference to the term “reproductive health” in the CRPD272 that
267. Michael L. Perlin & Henry A. Dlugacz, “It’s Doom Alone That Counts”: Can
International Human Rights Law Be an Effective Source of Rights in Correctional Conditions
Litigation?, 27 BEHAV. SCI. & L. 675, 693 (2009).
268. Vienna Convention, supra note 54, art. 31(1).
269. See supra Part IV.B.3.
270. CRPD, supra note 4, art. 46.
271. Restatement § 702 cmt. n (1987).
272. Jeanne E. Head, U.N. General Assembly Approves Disability Convention; Clear
Understanding That the Term “Sexual and Reproductive Health” Does Not Include a Right to
Abortion Reaffirmed, NAT’L RIGHT TO LIFE (Dec. 13, 2006) http://www.nrlc.org/UN/Disability
ConventionApproved.html.

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“the phrase . . . does not include abortion, and its use in that Article does
not create any abortion rights, and cannot be interpreted to constitute
support, endorsement, or promotion of abortion.”273
Some of the likely RUDs would have only indirect or limited effect
on the question of supermax facilities. For example, one might predict
that the Senate will seek to limit the CRPD definition of “disability.”
Some conservative groups opposed to ratification of the CRPD have
already criticized its definition of disability on the ground that it “invites
abuse by persons or groups who do not suffer from a recognized medical
disability yet seek resources and protection under the authority of the
convention.”274 Rather than accept paragraph (e) of the preamble to the
CRPD, which states that disability is an “evolving” concept, the Senate
might prefer to tie the definition to that under the Americans with Disabilities Act (ADA).275 One such reservation could be framed as follows:
“The United States considers itself bound by the convention only insofar
as the term “disability” is understood in the ADA” (or federal law generally). Under the ADA, a disabled person is one who has “a physical or
mental impairment that substantially limits one or more . . . major life
activities” and “has a record of such an impairment” or has been
“regarded as having such an impairment.”276 While any limitation on the
definition of disability under the CRPD seems unnecessary, simply
using the ADA definition of disability in connection with the CRPD
would be unlikely to pose any barrier to the conclusion that the use of
supermax facilities is inconsistent with the treaty. It is entirely predictable that the Senate will consider attaching a condition to ratification
that aims to exempt supermax confinement from coverage by the convention. What is debatable, however, is whether any such RUD would
be both effective and feasible.
What RUDs might be sufficient to remove supermax facilities from
scrutiny under the CRPD? While it might be far more desirable to ratify
the treaty without seeking to blunt its domestic impact, ratification of the
treaty without any RUDs is not a realistic prospect. Therefore, it makes
sense to ask what those RUDs might be in relation to the issue of disablement through long-term solitary confinement.
273. Id.
274. STEVEN GROVES, THE HERITAGE FOUND., RATIFICATION OF THE DISABILITIES
CONVENTION WOULD ERODE AMERICAN SOVEREIGNTY 10 (2010), available at http://www.
heritage.org/research/reports/2010/04/ratification-of-the-disabilities-convention-would-erodeamerican-sovereignty#_ftn32.
275. CRPD, supra note 4, preamble.
276. Americans with Disabilities Act (ADA) of 1990, 42 U.S.C.§ 12102(1) (2006). The ADA
then provides further clarification by defining “major life activities” as “caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, [and] standing . . . .” Id.
§ 12102(2).

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The most obvious place for the Senate to start is Article 4. As noted
earlier, Article 4 provides that States must “refrain from engaging in any
act or practice that is inconsistent with the present Convention and to
ensure that public authorities and institutions act in conformity with the
present Convention.”277 As this article has argued, prolonged solitary
confinement is inconsistent with Article 4. What kind of RUD might be
formulated that would exempt it from scrutiny under Article 4?
The first point to note here is that exempting supermax facilities
from claims under Article 15 (as discussed earlier) would not, by itself,
exempt them from scrutiny under Article 4. The claim that prolonged
solitary confinement causes disablement in violation of the treaty in no
way rests on the distinct assertion that such confinement amounts to
torture or cruel, inhuman or degrading treatment. Article 4(d) states that
state members must “refrain from engaging in any act or practice that is
inconsistent with the present Convention.”278 The Article 4 argument
would simply not be affected by any conclusion that solitary confinement is not torture or cruel, inhuman or degrading treatment.
Accordingly, a separate RUD would be needed to address Article 4.
And this may prove to be a daunting task, for formulating such a RUD
in a way that is politically acceptable and legally effective may well
prove difficult or impossible. Explicitly limiting the scope of Article 4
as it relates to prolonged solitary confinement would be politically
unpalatable. It is unclear how the U.S. Government would be able to
craft a reservation that would address the implicit violation of disablement without conceding that there is in fact a link between solitary confinement and long-term mental disabilities. Stating, for example, that
“nothing in Article 4 will limit the use of solitary confinement” could
easily be taken as an admission that solitary confinement does in fact
disable people and would be inconsistent with the treaty in the absence
of the reservation.
A second strategy would be to adopt a treaty-wide reservation or
understanding, stating, for example, that “nothing in this treaty bears on
the practice of long-term solitary confinement.” This kind of reservation
might be more politically palatable, as it could be read to imply not that
solitary confinement is disablement but is exempted, but that the CRPD
as a whole simply has nothing to say one way or the other as to solitary
confinement. The problem with this approach, however, is that it would
sweep too broadly, utterly exempting solitary confinement even from
Article 15 scrutiny. The United States would be announcing that even if
solitary confinement amounts to torture, whether as defined internation277. CRPD, supra note 4, art. 4.
278. Id. (emphasis added).

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ally or as narrowed by a RUD, it would still be acceptable. That is a very
different kind of approach from the likely reservation to Article 15 as
discussed earlier, which claims to accede to the ban on all forms of torture, though leaving the definition to domestic rather than international
law. Nor would it help to modify the reservation to something like the
following: “Nothing in this treaty bears on the practice of long-term solitary confinement, except insofar as it may constitute torture under Article 15.” This qualification would solve the problem of inadvertently
claiming a right to practice torture, but once again at the cost of appearing to concede that prolonged solitary confinement can be torture.
Another conceivable reservation might be one providing that “nothing in this treaty bears on the administration of prisons.” A reservation
of this sort would almost certainly be too broad to be acceptable politically. Federal law itself protects disabled prisoners.279 Simply to exempt
prisoners from the protection of the CRPD is therefore not a realistic
option.
The Senate might, however, consider more limited versions of such
a RUD. For example, it might state, “Nothing in this treaty restricts the
right of prison administrators to impose on persons under lawful detention conditions of detention that are valid under federal or state law or
the U.S. Constitution.” This reservation, if valid under Article 46, might
achieve the Senate’s aims, but once again, at the cost of seeming to
exempt the United States even from Article 15 obligations.
Alternatively, the Senate might adopt a declaration that “in the case
of persons under lawful detention, the treaty shall be interpreted to provide no more rights than are protected under federal or state law or the
U.S. Constitution.” This would make the full range of U.S. obligations
under the CRPD exactly the same as those under domestic law when it
comes to prisoners. In turn, that would give one group of people—prisoners—explicit second-class status under the CRPD, at least in the
absence of a general RUD declaring that for all those subject to U.S.
jurisdiction, the obligations of the United States under the CRPD are
limited to those under U.S. law. Because prisoners are not a politically
popular or powerful group, a reservation or declaration of this sort might
conceivably be politically possible.
The most extreme reservation would be generally to limit the scope
of Article 4 to that of the domestic law of the United States. A reservation of this sort would avoid any drawing of attention to the practice of
solitary confinement and the question of whether it violates human
rights. But if there were any textbook case for the invalidity of a reserva279. 42 U.S.C. §§ 12131, 12132; see, e.g., Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).

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tion as “incompatible with the object and purpose” of a treaty,280 it
would be just this. What is the point of ratifying a treaty if its entire
substantive content is effectively cancelled in favor of domestic law in
the course of ratification—which is what such a reservation would
accomplish in practice? Obviously, a reservation that essentially
replaced the content of the treaty with current or future domestic law
would entirely negate the purpose of the treaty. A reservation of this sort
might well be invalid under international law, and more importantly,
under the CRPD itself. As previously metioned, Article 46 of the CRPD
states, “Reservations incompatible with the object and purpose of the
present Convention shall not be permitted.”281 The importance of this
observation is not that the reservation would be struck down by a court
or international body, but that the Senate would be unlikely to adopt it in
the first place.282
In short, crafting a reservation or understanding that would effectively remove prolonged solitary confinement from international scrutiny under the CRPD may well prove politically and legally impossible.
One possibility is that the Senate, upon drawing such a conclusion,
would reject the treaty in its entirety. Doing so would be unfortunate,
and it would effectively amount to a concession that prolonged solitary
confinement is inconsistent with a major human rights treaty. Alternatively, the Senate might proceed with ratification, accepting as a price of
the benefits of ratification the strong possibility that U.S. practice in
supermax facilities would now be subject to a new level of international
scrutiny. Which path the Senate takes remains to be seen.
VII.

CONCLUSION

Supermax solitary confinement runs counter to international human
rights law, undercutting its fundamental aim of “preserving the right to
human dignity.”283 The international community has developed a broad
understanding and appreciation of the mental effects produced by solitary confinement, and the United States should follow suit.
Even weighted down with qualifying conditions, U.S. ratification
of the CRPD has the potential to vindicate the rights of prisoners in
280. CRPD, supra note 4, art. 46.
281. Id.
282. Adopting such a reservation would put the United States in the company of states that
ratified the Convention on the Elimination of All Forms of Discrimination Against Women, but
took a general reservation to Article 2 (requiring states to take appropriate measures to implement
the Convention) that made compliance subject to Sharia law. See Belinda Clark, The Vienna
Convention Reservations Regime and the Convention on Discrimination Against Women, 85 AM.
J. INT’L L. 281, 299–300 (1991).
283. Miller, supra note 117, at 167.

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supermax solitary confinement. Even reduced largely to a moral statement rather than a legal instrument, the CRPD might help guide the
United States in drafting legislation and forming policy. It could provide
the groundwork for the gradual limitation and elimination of supermax
solitary confinement. Indeed, even as the treaty awaits ratification, it has
some force, given that we have signed it. The Secretariat for the CRPD
has stated:
[B]y signing the Convention or Optional Protocol, States or regional
integration organizations indicate their intention to take steps to be
bound by the treaty at a later date. Signing also creates an obligation,
in the period between signing and ratification or consent to be bound,
to refrain from acts that would defeat the object and purpose of the
treaty.284

The time to begin bringing U.S. practice into conformity with the CRPD
is now.

284. See Secretariat for the Convention on the Rights of Persons with Disabilities, Becoming a
Party to the Convention and the Optional Protocol, U.N. ENABLE, http://www.un.org/disabilities/
default.asp?id=231 (last visited Aug. 10, 2011). See also Vienna Convention, supra note 54, art.
18.

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