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Prisoner Human Rights Advocacy, Quigley & Godchaux, 2015

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LEGAL STUDIES RESEARCH PAPER SERIES
PAPER NUMBER 2015-12

Prisoner Human Rights
Advocacy
Professor William P. Quigley
(Co-author, with Sara Godchaux)
16 Loy. J. Pub. Int. L. 359 (2015)

This paper can be freely downloaded from the
Social Science Research Network at:
http://ssrn.com/abstract=2702550

PRISONER HUMAN RIGHTS ADVOCACY

Bill Quigley* and Sara Godchaux**
I.
II.
III.

Introduction
A Human Rights Approach to Injustice
Overview of United Nations Human Rights for Prisoners
A. Protection of Prisoners from Torture and Mistreatment
B. Guarantee of an Adequate Standard of Living and
Conditions of Confinement
C. Health and Healthcare Rights of Prisoners
i.
General Medical Services for Prisoners
ii.
Psychiatric Services for Prisoners Suffering
from Mental Health Disorders
D. The Rehabilitation and Social Reformation of
Prisoners
i.
Work
ii.
Education

* Bill Quigley, Professor of Law and Director of the Loyola Law Clinic & the
Gillis Long Poverty Law Center. In gratitude to Risa Kaufman, Johanna Kalb, and
Jeanne Woods, who reviewed this piece and offered pertinent suggestions, and to
Maryclare Diller for her research assistance.
** Sara Godchaux, Staff Attorney at the Southern Poverty Law Center in New
Orleans, Louisiana. Those interested in further study in this area would profit, as
we do, from reviewing the following: Caroline Bettinger-Lopez, Primer on the InterAmerican Human Rights System, 42 CLEARINGHOUSE REV., Number 11-12 (MarchApril 2009); Alvin J. Bronstein & Jenni Gainsborough, Using International Human
Rights Laws and Standards for US Prison Reform, 24 PACE L. REV. 811 (2004);
Martha F. Davis, Johanna Kalb & Risa E. Kaufman, HUMAN RIGHTS ADVOCACY IN
THE UNITED STATES (West Academic Publ’g 2014); Jenni Gainsborough, Women in
Prison: International Problems and Human Rights Based Approaches to Reform , 14
WM. & MARY J. WM. & L. 271 (2007); Martin A. Geer, Human Rights and Wrongs in

Our Own Backyard: Incorporating International Human Rights Protections under
Domestic Civil Rights law – A Case Study of Women in United States Prisons, 13
HARV. HUM. RTS. J. 71 (2000); Deborah Labelle, Bringing Human Rights Home to
the World of Detention, 40 COLUM. HUM. RTS. REV. 79 (2008); Deborah LaBelle,
Ensuring Rights for All: Realizing Human Rights for Prisoners, BRINGING HUMAN
RIGHTS HOME, VOLUME 3: PORTRAITS OF THE MOVEMENT (Praeger Publ’n 2008);
Sara A. Rodriguez, The Impotence of Being Earnest: Status of the United Nations
Minimum Rules for the Treatment of Prisoners in Europe and the United States, 33
NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 61 (2007); Gwynne Skinner, Bringing
International Law to Bear on the Detention of Refugees in the United States, 16
Willamette J. Int’l L. & Disp. Resolution 270 (2008); BRINGING HUMAN RIGHTS
HOME (Cynthia Soohoo, Catherine Albisa & Martha Davis, eds. Praeger Publishing
2008); Dirk van Zyl Smit, Regulation of Prison Conditions, 39 CRIME AND JUST. 503,
549-553 (2010); Eric Tars, Who Knows What Lurks in the Hearts of Human Rights

Violators? The Shadow (Reporter) Knows--Human Rights Shadow Reporting: A
Strategic Tool for Domestic Justice, 42 CLEARINGHOUSE REV. 475 (2009); Kim P.
Turner, Raising the Bars: A Comparative Look at Treatment Standards for Mentally
Ill Prisoners in the United States, United Kingdom, and Australia, 16 CARDOZO J.
INT’L & COMP. L. 409, 442-444 (2008); Jeanne M. Woods & Hope Lewis, HUMAN
RIGHTS AND THE GLOBAL MARKETPLACE: ECONOMIC, SOCIAL AND CULTURAL
DIMENSIONS (Transnational Publr. 2005).



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iii.
Religion
iv.
Contact With the Outside World
E. Complaints, Inspections, and other Procedures
F. Rules Governing Special Groups of Prisoners
i.
Juveniles in Prison
ii.
Women in Prisons
IV.
How U.N. Prisoner Human Rights Advocacy Operates
A.
Prisoner Complaints to U.N. Special Rapporteurs
B.
Examples of Prisoner Human Rights Complaints to
U.N. Special Rapporteur on Torture
i.
Human Rights Challenge to Mistreatment of
Detained Juveniles in Massachusetts
ii.
Human Rights Challenges to California
Solitary Confinement
iii.
Human Rights Challenges to Guantanamo
iv.
Other Prisoner Human Rights Challenges
Reviewed by U.N. Special Rapporteur
C.
Shadow Reports to U.N. Human Rights Monitors
V.
Prisoner Advocacy with Inter-American Commission on
Human Rights
VI.
Conclusion

2015]
I.

Prisoner Human Rights Advocacy

3

INTRODUCTION

Every hour of every day, in every city and county in this
country, people are degraded, mistreated, and abused in and by
our jails and prisons. United States courts offer only very narrow
and extremely costly opportunities for prisoners to seek justice.
Human rights advocacy is not a magic solution to these
widespread injustices. Nevertheless, it does offer another option
for prisoners to tell their stories about how they experience
injustice to people who actually care about human rights. This
article shows how human rights advocacy, despite U.S. opposition
to international human rights protections for prisoners, can be a
useful tool to challenge ongoing injustices faced by prisoners.
Because the United States is the prison capital of the
world, advocacy for and with prisoners is critical.1 Traditional
litigation for prisoners has made great strides, but is extremely
costly, lawyer intensive, and time consuming. The courts and
Congress have also intentionally made prisoner litigation
difficult.
Historically, the U.S. Constitution has been a major
source of protection for prisoners’ rights in this country.2 The
Constitution protects prisoners and courts can, and will, hold jail
administrators, supervisors, and the like accountable for violation
of inmates’ rights. Although constitutional advocacy has been
successful to improve prison conditions and otherwise protect
many rights of prisoners over the last several decades, prison
conditions in which prisoners exist in the U.S. remain
horrendous.3
1. Roy Walmsley, World Prison Population List (tenth edition), INT’L. CENTRE
PRISON STUDIES, A PARTNER OF THE UNIV. OF ESSEX (2013),
http://www.prisonstudies.org/sites/prisonstudies.org/files/resources/downloads/wppl_
10.pdf.
2. For a more detailed description of the history of prisoners’ rights in this
country, see Roberta M. Harding, In the Belly of the Beast: A Comparison of the
Evolution and Status of Prisoners’ Rights in the United States and Europe, 27 GA. J.
INT’L & COMP. L. 1, 7-21 (1998).
3. See generally Sharon Dolovich, Foreword: Incarceration American-Style, 3
HARV. L. & POL’Y REV. 237 (2009); Sharon Dolovich, Exclusion and Control in the
Carceral State, 16 BERKELEY J. CRIM. L. 259 (2011); A Nation Behind Bars: A
Human
Rights
Solution,
HUM.
RTS.
WATCH
(May
6,
2014),
http://www.hrw.org/sites/default/files/related_material/2014_US_Nation_Behind_Bar
s_0.pdf.
FOR



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Despite these critical ongoing problems in our jails and
prisons, Congress and the courts continue to severely limit the
protections and remedies available for prisoners.4 Constitutional
litigation has tremendous power and can make long-lasting
impact, but prisoners often do not have access to these remedies
because of the cost, time and scarcity of lawyers involved. 5
Increased human rights advocacy, as the examples below
indicate, can offer lower cost alternative ways to challenge
solitary confinement, mistreatment of juveniles, better
protections for women prisoners and opportunities for organizing
against the injustices of the prison system.
The U.S. has the highest incarceration rate per capita in
the entire world at 707 prisoners per 100,000 people.6 It also has
the largest number of people behind bars with 2.2 million people
in local jails and state and federal prisons.7 While the United
States only makes up 5% of the world’s population, it incarcerates
approximately 25% of the world’s prisoners.8
To put these rates into international perspective, compare
the United States’ incarceration rate of 707 per 100,000 people to
some other countries’ incarceration rates: Mexico -- 214 per
100,000 people; Canada – 118 per 100,000 people; England – 148
per 100,000; Russia – 467 per 100,000 people; China – 124 per

4. Marissa C.M. Doran, Lawsuits as Information: Prisons, Courts, and A Troika
Model of Petition Harms, 122 YALE L.J. 1024, 1036-42 (2013) (showing the push for
limitations on prisoner litigation under the Prison Litigation Reform Act); see also
David M. Adlerstein, In Need of Correction: The “Iron Triangle” of the Prison
Litigation Reform Act, 101 COLUM. L. REV. 1681 (2001); No Equal Justice: The
Prison Litigation Reform Act in the United States, HUM. RTS. WATCH (June 17,
2009), http://www.hrw.org/sites/default/files/reports/us0609web.pdf (this report
documents the negative effect of the PRLA which has resulted in numerous
dismissals of prisoner rights cases in federal courts).
5. Alvin J. Bronstein & Jenni Gainsborough, Using International Human
Rights Laws and Standards for U.S. Prison Reform, 24 PACE L. REV. 811 (2004); see
generally Deborah Labelle, Bringing Human Rights Home to the World of Detention,
40 COLUM. HUM. RTS. L. REV. 79 (2008) (Labelle is one of the trailblazers in the use
of human rights in domestic litigation, and in this article she outlines how this can
be done.).
6. World Prison Brief: United States of America, INT’L CENTRE FOR PRISON
STUDIES, http://www.prisonstudies.org/country/united-states-america (last visited
April 7, 2015).
7. Id. According to the U.S. Bureau of Justice Statistics, in 2012, the United
States held 744,524 people in local jails and 1,483,900 people in state or federal
prisons. Id.
8. Mass Incarceration Problems, AM. CIV. LIBERTIES UNION (2012),
https://www.aclu.org/files/assets/massincarceration_problems.pdf.

2015]

Prisoner Human Rights Advocacy 

100,000 people.9
The United States has not always had such a high prison
rate. In fact, in 1980, the United States’ total jail and prison
population was a mere 501,886 people.10 This means that the
number of United States prisoners has increased by over 300%
since 1980.11 Interestingly, this exponential growth does not
correlate with either the infinitely smaller general population
growth of the United States nor crime rates over the same time
period. Since 1980 the U,S. population has grown from 227
million to 318 million people, only a 39 percent increase.12 In
the same time period, both the number and rate of crime has
decreased.13
As the United States continues to lead the world in
incarceration, United States prisoners continue to suffer human
rights abuses and other issues regarding their treatment, safety,
and health. Prison rape, the overuse of solitary confinement,
prison overcrowding, inhumane and substandard conditions of
confinement, lack of access to medical and psychological care are
just a handful of the problems plaguing our prisons and affecting
our millions of prisoners.
For example, sexual assault behind bars affects one in ten
juveniles, and despite severe underreporting, four percent of state
and federal inmates reported sexual abuse in 2011-2012.14 That
9. Highest to Lowest – Prison Population Rate, INT’L CENTRE FOR PRISON
STUD.,
http://www.prisonstudies.org/info/worldbrief/wpb_stats.php?area=all&category=wb_
poprate (last visited Feb. 20, 2015).
10. James Austin, Ending Mass Incarceration: Charting a New Justice
Reinvestment,
AM.
CIV.
LIBERTIES
UNION,
*2,
https://www.aclu.org/files/assets/charting_a_new_justice_reinvestment_final_0.pdf
(last visited Feb. 20, 2015).
11. Id.
12. See 2014 data at State & County Quickfacts, U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/states/00000.html (last visited Feb. 20, 2015). For
1980, see Historical National Population Estimates, U.S. CENSUS BUREAU (June 28,
2000),
http://www.census.gov/popest/data/national/totals/pre1980/tables/popclockest.txt.
13. Table 302. Crimes and Crime Rates by Type of Offense: 1980 to 2008, U.S.
CENSUS
BUREAU
(2011),
http://www.census.gov/compendia/statab/2011/tables/11s0302.pdf.
14. Jamie Fellner, Stop Prison Rape Now, HUM. RTS. WATCH (Sept. 4, 2013),
http://www.hrw.org/news/2013/09/04/stop-prison-rape-now; David Kaiser & Lovisa



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means approximately 60,000 inmates are sexually assaulted by
other inmates or staff every year according to the Bureau of
Justice Statistics.15 Likewise, the last few decades have seen an
explosion in the use of solitary confinement in prisons in the
United States.16 Experts estimate that approximately 80,000
prisoners are held in some form of solitary confinement.17
Accomplishing the task of prison reform in order to
overcome these injustices in the prison system is a daunting task.
However, a potential and promising solution to these problems is
that of supporting and promoting human rights. Human rights
advocacy can be a powerful opportunity for prisoners to put the
injustices before the public, a useful supplement to litigation, and
a low cost alternative tool to highlight and address continuing
violations of prisoners’ rights.18 This paper will provide an
overview of basic human rights; discuss the various human rights
that are afforded to prisoners; examine the workings of the U.N.
Human Rights Advocacy; and conclude with prisoner advocacy
under the Inter-American Commission on Human Rights.

Stannow, The Shame of Our Prisons: New Evidence, NEW YORK REV. BOOKS (Oct.
24, 2013), http://www.nybooks.com/articles/archives/2013/oct/24/shame-our-prisonsnew-evidence/.
15. Allen J. Beck, Marcus Berzofsky, Rachel Caspar & Christopher Krebs,

Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12: National
Inmate Survey, U.S. DEP’T OF JUSTICE: BUREAU OF JUSTICE STATISTICS, NCJ 241399
(May 2013), http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf.
16. Shira E. Gordon, Note, Solitary Confinement, Public Safety, and
Recidivism, 47 U. MICH. J. L. REFORM 495, 495-502 (2014).
17. Sal Rodriguez, FAQ, SOLITARY WATCH: NEWS FROM A NATION IN LOCKDOWN
(2012), http://solitarywatch.com/facts/faq/.
18. Alvin J. Bronstein & Jenni Gainsborough, The International Context of

U.S. Prison Reform: Using International Human Rights Laws and Standards for
U.S. Prison Reform, 24 PACE L. REV. 811 (2004).
Martin A. Geer, Human Rights and Wrongs in Our Own Backyard:
Incorporating International Human Rights Protections under Domestic Civil Rights
Law – A Case Study of Women in United States Prisons, 13 HARV. HUM. RTS. J. 71
(2000).
Martha F. Davis, Law, Issue Frames and Social Movements: Three Case
Studies, 14 U. PA. J.L. & SOC. CHANGE 363, 370- 377 (2011) (Professor Davis
illustrates how a human rights frame can guide domestic social justice advocacy with
three examples: the Poverty Law movement of the 1960s; the Maryland Legal Aid
Bureau; and the National Center on Homelessness and Poverty).
Early civil rights litigators looked to human rights advocacy when the courts
were hostile. For example, in 1946, a human rights complaint was filed with the
United Nations to force the US to eliminate racial discrimination. Raymond M.
Brown, The Civil Rights Movement’s Early Embrace of Human Rights , NEW JERSEY
LAWYER, THE MAGAZINE, Feb. 2014.

2015]
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Prisoner Human Rights Advocacy

365

A HUMAN RIGHTS APPROACH TO INJUSTICE

Human rights are basic privileges and fundamental
freedoms that are inherent to all human beings, meaning all
people of all nations are entitled to them regardless of race,
nationality, place of residence, sex, national or ethnic origin,
religion, language, or any other status.19 They are, as one of the
pioneers in U.S. human rights advocacy proclaimed, “A source of
social justice in the US.”20
These rights include civil and political rights such as the
right to life, liberty and freedom of expression. They also entail
social, cultural and economic rights including the right to food,
the right to work, and the right to receive an education.21 These
basic rights are expressed and protected by international norms,
conventions, treaties, guiding principles, and other sources of
international law.22 States in every region of the world have
signed and ratified international and regional treaties,
conventions, and rules confirming these basic human rights.23
Sources for these rights include the charter of the United
Nations, the Universal Declaration of Human Rights, the
19. Rhonda Copelon, The Indivisible Framework of International Human
Rights: A Source of Social Justice in the U.S. , 3 N.Y. CITY L. REV. 59 (1998);
Catherine Powell, Introduction: Locating Culture, Identity and Human Rights, 30
COLUM. HUM. RTS REV. 201 (1999); see also Louis B. Sohn, The New International
Law: Protection of the Rights of Individuals Rather than States , 32 AM. U.L. REV. 1
(1982) (Sohn provides an excellent historical and political overview of the
development of human rights laws); see also Human Rights Basics, AMNESTY INT’L,
http://www.amnestyusa.org/research/human-rights-basics (last visited Feb. 10,
2015); see also What are human rights?, UNITED NATIONS HUM. RTS., OFFICE OF
THE
HIGH
COMMISSIONER
FOR
HUM.
RTS.,
http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx (last visited Feb.
19, 2015).
20. See Copelon, supra note 19.
21. Human Rights Basics, supra note 19.
22. Id.
23.
Making
Standards
Work,
PENAL
REFORM
INT’L
(1995),
http://www.penalreform.org/wp-content/uploads/2013/05/man-2001-makingstandards-work-en.pdf; see also The Foundation of International Human Rights
Law: The Universal Declaration of Human Rights, UNITED NATIONS,
http://www.un.org/en/documents/udhr/hr_law.shtml (last visited Mar. 26, 2015)
(“Today, all United Nations member States have ratified at least one of the nine core
international human rights treaties, and 80 percent have ratified four or more,
giving concrete expression to the universality of the UDHR and international human
rights.”).

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International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights,
and the adoption of dozens of additional declarations and
covenants including the U.N. Convention against Torture.24
The Universal Declaration of Human Rights (UDHR),
adopted by the United Nations General Assembly in 1948
following the end of the Second World War, is generally agreed to
be the foundational document of international human rights
law.25 The UDHR set forth the basic civil, political, economic,
social, and cultural rights and fundamental freedoms that all
human beings should enjoy.26 Originally, the UDHR was merely
meant to be a non-binding statement of principles.27 Today,
many of its provisions are so widely accepted that they have
taken on the status of customary international law. Its principles
have been reiterated, codified, and made binding on states in
subsequent treaties.28 The UDHR has inspired more than 80
international human rights treaties and declarations, as well as
other international instruments such as guidelines and principles
which serve to facilitate the understanding, implementation and
further development of international human rights law, and a
great number of regional human rights conventions, as well as
domestic human rights bills and constitutional provisions.29
Any analysis of human rights advocacy in the U.S. must
acknowledge the resistance of the government to be bound by
international standards protecting prisoners.30 While the U.S.’s
24. Sohn, supra, note 19, at 11-12.
25. Michael J. Perry, The Morality of Human Rights, 50 SAN DIEGO L. REV. 775
(2013).
26. Id.
27. Hurst Hannum, The Status of the Universal Declaration of Human Rights
in National and International Law, 25 GA. J. INT’L & COMP. L. 287, 317-318 (199596); see also, Ben Saul, In the Shadow of Human Rights: Human Duties, Obligations,
and Responsibilities, 32 COLUM. HUM. RTS. L. REV. 565, 604 (2001).
28. Sohn, supra note 19, at 32.
29. The Foundation of International Human Rights Law: The Universal
Declaration of Human Rights, UNITED NATIONS (Sept. 16, 2014),
http://www.un.org/en/documents/udhr/hr_law.shtml (last visited Mar. 26, 2015).
30. The U.S. has failed to sign or ratify several of the most significant
international human rights treaties – and even those it has ratified were adopted
with a package of reservations, understandings and declarations that purport to
limit the domestic impact of these rights. Louis Henkin, U.S. Ratification of Human
Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT’L L. 341 (1995).
Generally, the U.S. is more resistant to these norms than many of the world’s
governments. See Dirk van Zyl Smit, Regulation of Prison Conditions, 39 CRIME &
JUST. 503, 549-53 (2010) (explaining international comparisons and the U.S.’s role).

2015]

Prisoner Human Rights Advocacy

367

position makes it challenging to do so, these protections can be
and are raised in federal court litigation.31 While human rights
are sometimes described as “soft law” because they are often
found in non-binding international documents and are
consequently difficult to enforce,32 they are international norms,
which can be useful advocacy tools to challenge government
abuses.
Further, even when the U.S. ratifies human rights
treaties, it does so with a set of reservations, understandings and
declarations (RUDS), which restrict the ability of courts to apply
the treaties.33 Human rights advocacy has also proven to be an
important part of social movements like the successful campaign
of the Coalition of Immokalee Workers in Florida, and the Poor
People’s Economic Human Rights Campaign.34
III.

OVERVIEW OF UNITED
RIGHTS FOR PRISONERS

NATIONS

HUMAN

All persons are entitled to the protections of human rights,
including prisoners.35 While some liberties are lost when a person
31. See generally MARTHA F. DAVIS, JOHANNA KALB, & RISA E. KAUFMAN,
HUMAN RIGHTS ADVOCACY IN THE UNITED STATES 123 (West Academic Pub. 2014);
see also Johanna Kalb, Human Rights Treaties in State Courts: The International
Prospects of State Constitutionalism after Medellin, 115 PENN STATE L. REV. 1051,
1051-52 (2011); Martha F. Davis, The Spirit of Our Times: State Constitutions and
International Human Rights, 30 N.Y.U. REV. L. & SOC. CHANGE 359, 370-71 (2006)
(“Even if a treaty is deemed non-self-executing, the United States and its constituent
states are still bound by it. As such, a court considering the legality of government
action must take such treaty obligations into account. Even on the federal level, the
non-self-executing nature of a treaty simply precludes private enforcement action
and use of the treaty to secure jurisdiction. It does not bar judicial consideration and
enforcement of the treaty's terms once a cause of action and jurisdiction is secured on
some other basis.”).
32. Gunther F. Handl, et al., A Hard Look at Soft Law, 82 AM. SOC’Y INT’L L.
PROC. 371 (1988).
33. David Sloss, Using International Law to Enhance Democracy, 47 VA. J.
INT’L L. 1, 3 (2006).
34. Martha Davis, The Pendulum Swings Back: Poverty Law in the Old and
New Curriculum, 34 FORDHAM URB. L.J. 1391, 1410-11 (2007). For additional
examples, see Martha Davis, Law, Issue Frames and Social Movements: Three Case
Studies, 14 U. PA. J. L. & SOC. CHANGE 363, 363-64 (2011) (describing examples of
human rights lawyering in social change movements).
35. Martin A. Geer, Human Rights and Wrongs in Our Own Backyard:

Incorporating International Human Rights Protections under Domestic Civil Rights
Law – A Case Study of Women in United States Prisons, 13 HARV. HUM. RTS. J. 71,

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is imprisoned, that does not mean that prisoners may be denied
their human rights or dignity.36
Human rights for prisoners are based on many
international sources, starting with the 1948 Universal
Declaration of Human Rights (UDHR), which promised “[n]o one
shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”37
The 1976 International Covenant on Civil and Political
Rights (ICCPR) (a component of the International Bill of Rights)
contains a number of protections for prisoners including the
requirement that “[a]ll persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity
of the human person.”38 While the U.S. has ratified the ICCPR, it
only did so with reservations to limit the protections to that
which is protected by the Fifth, Eighth, and Fourteenth
Amendments of the U.S. Constitution.39 This, and the fact that
the treaty is not self-executing and Congress has not yet
approved the implementing legislation, has the effect of limiting
its protections for U.S. prisoners.40 However, international
protections can still be helpful with domestic litigation in
determining the current standards of decency.41

116 (2000) (“There are as many as seventeen conventions, declarations and
principles under international human rights law which may be sources of protection
for US women prisoners….”); Sara A. Rodriguez, The Impotence of Being Earnest:

Status of the United Nations Standard Minimum Rules for the Treatment of
Prisoners in Europe and the United States, 33 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 61 (2007) (notes that the U.S. is not doing a very good job of
conforming to these principles but they are still important tools when combined with
domestic enforcement).
36. Suzanne M. Bernard, An Eye for an Eye: The Current Status of
International Law on the Humane Treatment of Prisoners, 25 RUTGERS L. J. 759,
760-61 (1994).
37. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/217(III) (Dec. 10, 1948) [hereinafter Universal Declaration of Human Rights].
38. International Covenant on Civil and Political Rights, art. 10 (1), 999
U.N.T.S. 171 (entered into force Mar. 23, 1976, adopted by the United States Sept. 8,
1992), available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[hereinafter International Covenant on Civil & Political Rights].
39. John Quigley, Criminal Law and Human Rights: Implications of the United
States Ratification of the International Covenant on Civil and Political Rights, 6
HARV. HUM. RTS. J. 59, 71 (1993).
40. Susanna Y. Chung, Prison Overcrowding: Standards in Determining Eighth
Amendment Violations, 68 FORDHAM L. REV. 2351, 2376-77 (2000).
41. Id. at 2376, 2396-2400.

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Following the 1976 ratification of the ICCPR, the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) was enacted in 1984
to prohibit intentional infliction of severe physical or mental pain
and suffering.42 CAT requires each nation to report every four
years on what they have done to comply.43 The U.S. has also
ratified the Convention on the Elimination of All Forms of Racial
Discrimination (CERD), which prohibits racial, ethnic and
national origin discrimination.44
The U.S. ratifies treaties in such a way that the treaty
bodies cannot consider individual complaints against the U.S.
The only way these issues come before the treaty bodies is
through periodic treaty reviews. The bodies that monitor treaty
reports frequently publish helpful general comments that
interpret the treaties they oversee.45 Participation by advocates
in these processes can also be helpful for groups as part of their
overall strategy to articulate their positions before international
bodies and garner media attention for their causes.46
The United Nations has also endorsed Standard Minimum
Rules for the Treatment of Prisoners, which was first formally

42. Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, art. 19, opened for signature December 10, 1984, 1465
U.N.T.S. 85; G.A. Res. 34/169, art. 5, U.N. Doc. A/RES/169 (entered into force June
26, 1987) [hereinafter Convention against Torture].
43. Id.
44. Audrey Daniel, The Intent Doctrine and CERD: How the United States
Fails to Meet Its International Obligations in Racial Discrimination Jurisprudence, 4
DEPAUL J. FOR SOC. JUST. 263 (2011).
45. Compare Committee against Torture, Concluding observations on the third
to fifth periodic reports of the United States of America, ¶ 15, 1364th and 1267th
Sess., Nov. 12-13, 2014, and adopted at 1276th and 1277th Sess., Nov. 20, 2014, U.N.
Doc. CAT/C/USA/CO/3-5 (Dec. 19, 2014) (where the report concludes with the
comments by the Committee against Torture on the recent periodic reports by the
US),
available
at
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqh
Kb7yhsuLMmIdNURtE47fFHU%2bcDW3YqC%2f3zHkM7HdrMe8Ha0T3LrxFZw2D
BuPPjJtmrR1GUBC%2fjzvD8gcT%2fCPPgMygXRPGjD4yWY90dyGDoPyZiQO4,
with Laurence Helfer, Forum Shopping for Human Rights, 148 U. PA. L. REV. 285,
362 (1999).
46. The Advocates for Human Rights, Chapter 9. Advocacy at the United
Nations, *199, http://www.theadvocatesforhumanrights.org/uploads/ch_9_2.pdf (last
visited Mar. 18, 2015).

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approved by the Economic and Social Council in 1957.47 These
standards, while not having the force of law in the U.S., are “an
important [international] point of reference” for the rights of
prisoners.48 Additionally, there are a number of other principles,
codes, committee reports, and resolutions that provide the
foundation for the protection of human rights of prisoners.49
In 2005, the United Nations High Commissioner on
Human Rights (UNHCR) published an excellent four part series
on human rights and prisons designed to teach prison officials,
worldwide, what their duties were under international human
rights law.
This manual provides an in-depth examination of the
standards and sources of human rights in prisons. The first
component is a 222 page manual on human rights training for
prison officials.50 The second part of the package is a 362 page
compilation of international human rights instruments
concerning the administration of justice.51 The third part is a
198 page trainer’s guide which provides instructions and tips for
training prison officials.52 The final part is a 34 page pocketbook
of international human rights standards designed to be an
accessible and portable reference for prison officials.53
47. Bernard, supra note 36, at 770-75 (discussing the origins of these the
Standard Minimum Rules and her elaboration on how to implement the human
rights afforded to prisoners. These Rules were drafted in 1933 by the International
Penal and Penitentiary Commission and approved by the Assembly of the League of
Nations in 1934. Further, they were revised and approved by the Economic and
Social Council (ECOSOC) in 1957. Still, the Rules are not legally binding and do not
have the force of law. The goal of establishing SMR was to encourage their
enactment in national penal codes. They established minimum guidelines, which
may be adapted to the political, economic and social and legal circumstances of
individual countries.).
48. Id. at 775; see also Sara A. Rodriguez, The Impotence of Being Earnest:

Status of the United Nations Minimum Rules for the Treatment of Prisoners in
Europe and the United States, 33 NEW ENGL. J. ON CRIM. & CIV. CONFINEMENT 61
(2007) (noting that the U.S. does not do a good job of conforming to these principles
but they are still important tools when combined with domestic enforcement).
49. Bernard, supra note 36, at 775-90.
50. U.N. HIGH COMM’N FOR HUM. RTS., HUM. RTS. & PRISONS: MANUEL ON
HUM. RTS. TRAINING FOR PRISON OFFICIALS, U.N. Sales No. E.04.XIV.1 (2005).
51. U.N. HIGH COMM’N FOR HUM. RTS., HUM. RTS. & PRISONS: A COMPILATION
OF INT’L HUM. RTS. INSTRUMENTS CONCERNING THE ADMIN. OF JUST., U.N. Sales No.
E.04.XIV.4 (2005).
52. U.N. HIGH COMM’N FOR HUM. RTS., HUM. RTS. & PRISONS: TRAINER’S GUIDE
ON HUM. RTS. TRAINING FOR PRISON OFFICIALS, U.N. Sales No. E.04.XIV.6 (2005).
53. U.N. HIGH COMM’N FOR HUM. RTS., HUM. RTS. & PRISONS: A POCKETBOOK
OF INT’L HUM. RTS. STNDS. FOR PRISON OFFICIALS, U.N. Sales No. E.04.XIV.5 (2005).

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The following sections describe the types of protections
afforded to prisoners under international human rights law.
These principles and standards are certainly not an exhaustive
list, but are meant to be a survey of what types of protections are
available for prisoners under international human rights law and
a starting place for those interested in using international human
rights law as a basis for prison reform and the augmentation of
prisoner rights.
A. Protection of
Mistreatment

Prisoners

from

Torture

and

One of the most basic tenets of international human rights
law is that “[n]o one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment,” including
prisoners.54 There are no exceptions to this rule and no
exceptional circumstances can be invoked as justification for the
use of torture. 55
Under international law, “torture” is defined as “any act
by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing
him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other
54. Universal Declaration of Human Rights, supra note 37; Int’l Covenant on
Civ. & Political Rts., art. 7, Mar. 23, 1976, U.N.T.S. No. 14668, vol. 999, p. 171;
Convention against Torture, supra note 42, art. 5; see, e.g., Convention against
Torture, supra note 42, preamble, art. 16(1) (“Each State Party shall undertake to
prevent in any territory under its jurisdiction other acts or cruel, inhuman or
degrading treatment or punishment. . . .”); id. art. 5 (“No one shall be subjected to
torture or to cruel, inhuman, or degrading punishment or treatment. . . .”); Int’l
Covenant on Civ. & Political Rts., art. 7, Mar. 23, 1976, U.N.T.S. No. 14668, vol. 999,
p. 171 (“No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. . . .”); G.A. Res. 43/173, Prin. 6, U.N. Doc. A/RES/173 (Dec.
9, 1988) (“No person under any form of detention or imprisonment shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment. . . .”).
55. Convention against Torture, supra note 42, art. 2.2 (“No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a justification
of torture.”).

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person acting in an official capacity....”56
torture in international law is clear.

Vol. 16

This prohibition of

Human rights law also prohibits other mistreatment of
prisoners by other acts of cruel, inhuman or degrading treatment
Law
or punishment that does not amount to torture.57
enforcement officials, including prison officials, are only
permitted to use force when it is strictly necessary.58
States, as well as refraining from acts of torture and
mistreatment, have a duty to undertake comprehensive measures
to prevent torture or any other mistreatment of prisoners.59 As
set forth in more detail below and in the particular applicable
treaties, this includes: (1) adequate training of prison staff,
directly involved in the custody, interrogation or treatment of
prisoners;60 (2) investigating claims of torture and, prosecuting
perpetrators;61 and (3) ensuring that victims have access to safe
and effective complaint procedures, compensation and
rehabilitation.62
All prison officials must be fully informed, educated, and
trained about the prohibition of torture and other
mistreatment.63 Prison officials cannot cite to orders from a
superior officer as a justification of torture.64
Any prisoner who alleges that he or she has been
subjected to torture or other mistreatment has the right to file a
complaint which must be promptly and impartially examined by
competent authorities.65 Furthermore, steps must be taken to
ensure that the complainant and witnesses are protected against
56. Convention against Torture, supra note 42, art. 1 (Note that mental
suffering is included. This is important for implications for the use of solitary
confinement. Efforts addressed to the abolition of solitary confinement as a
punishment, or to the restriction of its use, should be undertaken and encouraged.).
57. Id. art. 16.
58. G.A. Res. 34/169, art. 3, U.N. Doc. A/RES/34/169 (Dec. 9, 1988).
59. See PENAL REFORM INTERNATIONAL, TORTURE PREVENTION: KEY FACTS
http://www.penalreform.org/priorities/torture-prevention/key-facts/ (last visited Feb.
9, 2015).
60. Convention against Torture, supra note 42, art. 10.
61. Id. art. 12.
62. Id. art. 14. See generally PENAL REFORM INTERNATIONAL, TORTURE
PREVENTION:
KEY
FACTS
http://www.penalreform.org/priorities/tortureprevention/key-facts/ (last visited Feb. 9, 2015).
63. Convention against Torture, supra note 42, art. 10.
64. Id. art. 2.
65. Id. art. 13.

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all mistreatment or intimidation as a consequence of his
complaint or any evidence given.66
B. Guarantee of an Adequate Standard of Living and
Conditions of Confinement
All prisoners are guaranteed the right to an adequate
standard of living, which includes food, drinking water, living
space, clothing and bedding.67 This guarantee to prisoners is
derived from the Universal Declaration of Human Rights, which
provides: “Everyone has the right to a standard of living adequate
for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary
social services. . . .”68
The Standard Minimum Rules (“SMR”) and other
conventions contain several articles detailing specific standards
that must be met in order to fulfill the guarantee to an adequate
standard of living for all prisoners. As for clothing, if prisoners
are not allowed to wear their own clothing, they shall be provided
with suitable clothing for the climate that is adequate to
maintain good health.69 The SMR mandates that clothing cannot
be degrading or humiliating, but it does not provide guidance or
examples regarding what may constitute “degrading” or
“humiliating.”70 An example of what is likely to violate this rule
is the requirement of Arizona Sheriff Joe Arpaio that inmates in
his facility wear pink underwear; a requirement that was found,
when applied to an inmate in need of psychiatric treatment, to be
deliberate indifference to the inmate’s serious medical needs.71 In
addition, there must be facilities for regularly keeping clothing

66. Convention against Torture, supra note 42, art. 13.
67. Universal Declaration of Human Rights, supra note 37, art. 25.
68. Id.
69. Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30,
1955 by the First United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, E.S.C. Res. 663C, Annex I, at rule 17(1), U.N. ESCOR, 24th
Sess., Supp. No. 1, U.N. Doc. A/CONF/611 (July 31, 1957), amended by E.S.C. Res.
2076, at 35, U.N. ESCOR, 32nd Sess., Supp. No. 1, U.N. Doc. E/5988 (May 13, 1977),

available

at

http://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_T
reatment_of_Prisoners.pdf [hereinafter Standard Minimum Rules].
70. Id.
71. Wagner v. County of Maricopa, 747 F.3d 1048, 1053(9th Cir. 2012).

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clean.72
Prisoner accommodations, especially sleeping areas, must
meet “all requirements of health,” meaning the conditions cannot
be harmful to the prisoner’s health.73 In particular, prisoners
must be given adequate air space, floor space, lighting, heating,
and ventilation.74 Furthermore, all prisoners shall be provided
with his or her own bed, as well as clean and sufficient bedding,
with facilities for keeping the bedding clean.75
These rules all have important implications for preventing
prison overcrowding. Prison overcrowding endangers the basic
rights, including the right to an adequate standard of living and
the right to humane standards of physical and mental health.76
Despite language that “guarantees” prisoners the right to an
adequate standard of living, prisons all over the world
consistently, and egregiously, breach these rules.
C. Health and Healthcare Rights of Prisoners
The U.N. Committee on Economic, Social and Cultural
Rights declares the right to health extends beyond both timely
and appropriate health care. The Committee asserts it includes
safe food, water, working conditions and an overall healthy
environment.77
In accordance with this minimum standard, the U.N.
Standard Minimum Rules for Treatment of Prisoners and the
other conventions set forth a number of measures to protect
prisoners’ physical and mental health. These standards are laid
out below.
i. General Medical Services for Prisoners
Principle 9 of the Basic Principles for the Treatment of
Prisoners verifies that prisoners are entitled to access the same
72. Standard Minimum Rules, supra note 69, rules 17(2) & 18.
73. Id. rule 10 (“All accommodation provided for the use of prisoners and in
particular all sleeping accommodation shall meet all requirements of health, due
regard being paid to climatic conditions and particularly to cubic content of air,
minimum floor space, lighting, heating and ventilation.”).
74. Id.
75. Id. rule 19.
76. See Chung, supra note 40, at 2376, 2396-2400.
77. United Nations, Econ. & Soc. Council, Comm. On Econ., Soc., and Cultural
Rights, 22nd, 23rd, and 24th Sess., p. 129, U.N. Doc. E/C.12/2000/21, Supp. No. 2
(2001).

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health services generally available in that country without
discrimination due to their incarcerated status.78 According to
the 1982 Principles of Medical Ethics, medical personnel have a
duty to provide an equivalent quality of healthcare to those who
are imprisoned as those who are not.79
According to the Principles on Detention or Imprisonment,
all prisoners should undergo a medical examination as soon as
possible after they are admitted into prison to scan for any
The examination and any
physical or mental illnesses.80
necessary medical treatment must be provided for free.81
Prisoners who require specialist treatment must be transferred to
specialized institutions or to hospitals, unless hospital facilities
are provided in the institution.82
The SMR states that all decisions about a prisoner’s
health should only be made on medical grounds – without regard
to a person’s incarcerated status -- and should only be made by
medically qualified personnel.83 Prisoners have the right to
request a second medical opinion.84 Furthermore, prisoners have
78. Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, ¶ 9, U.N.
Doc. A/RES/45/111 (Dec. 14, 1990) (“Prisoners shall have access to the health
services available in the country without discrimination on the grounds of their legal
situation.”).
79. G.A. Res. 37/194, ¶ 1, U.N. Doc. A/RES/37/194 (Dec. 18, 1982) (“Health
personnel, particularly physicians, charged with the medical care of prisoners and
detainees have a duty to provide them with protection of their physical and mental
health and treatment of disease of the same quality and standard as is afforded to
those who are not imprisoned or detained.”).
80. Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, G.A. Res. 43/173, Prin. 24, U.N. Doc. A/RES/43/173 (Dec.
9, 1988) [hereinafter Principles on Detention and Imprisonment] (“A proper medical
examination shall be offered to a detained or imprisoned person as promptly as
possible after his admission to the place of detention or imprisonment, and thereafter
medical care and treatment shall be provided whenever necessary. This care and
treatment shall be provided free of charge.”); Standard Minimum Rules, supra note
69, rule 24 (“The medical officer shall see and examine every prisoner as soon as
possible after his admission and thereafter as necessary, with a view particularly to
the discovery of physical or mental illness and the taking of all necessary measures;
the segregation of prisoners suspected of infectious or contagious conditions; the
noting of physical or mental defects which might hamper rehabilitation, and the
determination of the physical capacity of every prisoner for work.”).
81. Principles on Detention or Imprisonment, supra note 80, prin. 24.
82. Standard Minimum Rules, supra note 69, rule 22(2).
83. Id. rule 25.
84. Principles on Detention or Imprisonment, supra note 80, prin. 25.

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the right to access a qualified dentist.85 Prison staff must ensure
the full protection of the health of prisoners in their custody and,
in particular, must take immediate action to ensure medical
attention where required.86 This means that all requests by
prisoners to see a doctor must be taken seriously and promptly
responded to.
At every prison, there must be at least one available,
qualified medical officer who also has some knowledge of
psychiatry.87 The medical officer’s duties include: (1) seeing and
examining every prisoner as soon as possible after his admission
and thereafter as necessary;88 (2) to care for the physical and
mental health of the prisoners—including seeing daily all sick
prisoners, all prisoners who complain of illness, and any prisoner
to whom his attention is specially directed;89 (3) to report to the
director of the facility if he believes that “a prisoner’s physical or
mental health has been or will be injuriously affected by
continued imprisonment or by any condition of imprisonment;”90
and (4) to regularly inspect and advise the director of the prison
on health issues such as food, hygiene, sanitation, living
conditions and exercise available at the institution.91
ii. Psychiatric Services for Prisoners Suffering
From Mental Health Disorders
The U.S. Department of Justice estimates that 56 percent
of state prisoners, 45 percent of federal prisoners and 64 percent
of local jail inmates have mental health disorders.92

85. Standard Minimum Rules, supra note 69, rule 22(3).
86. G.A. Res. 34/169, art. 6, U.N. Doc. A/RES/169 (Dec. 9, 1988).
87. Standard Minimum Rules, supra note 69, rule 22(1) (“The medical services
should be organized in close relationship to the general health administration of the
community or nation. They shall include a psychiatric service for the diagnosis and,
in proper cases, the treatment of states of mental abnormality.”).
88. Standard Minimum Rules, supra note 69, rule 24.
89. Id. rule 25(1).
90. Standard Minimum Rules, supra note 69, rule 25(2).
91. Id. rule 26.
92. Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and
Jail Inmates, U.S. Dep’t of Justice: Bureau of Justice Statistics (Sept. 2006),
available at http://www.bjs.gov/content/pub/pdf/mhppji.pdf; see also, Mental Illness,

Human Rights and Prisons: Human Rights Watch Statement for the Record to the
Senate
Judiciary
Committee
(Sept.
22,
2009),
http://www.hrw.org/news/2009/09/22/mental-illness-human-rights-and-usprisons#_ftn2.

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Human rights considerations demand that services for
psychiatric diagnosis and treatment be available at every
prison.93 If a prisoner is determined to be insane, he or she must
not remain in prison, but shall be transferred as soon as possible
to a mental institution.94 Prisoners suffering from other mental
health disorders must be treated in specialized institutions under
medical management.95
While incarcerated, prisoners
health disorders must be supervised
Furthermore, steps should be taken to
continuation of psychiatric treatment
prisoner.97
D.

The Rehabilitation
Prisoners

and

suffering from mental
by a medical officer.96
ensure, if necessary, the
after the release of the
Social

Reformation

of

The main human rights goal of prison authorities in their
treatment of prisoners should be to encourage personal
reformation and social rehabilitation.98 Therefore, prisons should
be centered around the goal of helping prisoners “lead lawabiding and self-supporting lives after their release.”99 Work,
education, vocational training, religious training, and contact
with the outside world are all essential ways to meet this goal of
rehabilitation of prisoners.100
93. Standard Minimum Rules, supra note 69, rule 22(1). For a discussion on
how U.S. courts are reluctant to embrace international human rights law analysis
for mentally ill prisoners, see Kim P. Turner, Raising the Bars: A Comparative Look

at Treatment Standards for Mentally Ill Prisoners in the United States, United
Kingdom, and Australia, 16 CARDOZO J. INT’L & COMP. L. 409, 442-444 (2008).
94. Standard Minimum Rules, supra note 69, rule 82(1).
95. Id. rule 82(2).
96. Id. rule 82(3).
97. Id. rule 83.
98. International Covenant on Civil and Political Rights, supra note 38, art.
10(3) (“The penitentiary system shall comprise treatment of prisoners the essential
aim of which shall be their reformation and social rehabilitation.”).
99. Standard Minimum Rules, supra note 69, rules 65 & 66(1).
100. Id. rule 66(1) (“To these ends, all appropriate means shall be used,
including religious care in the countries where this is possible, education, vocational
guidance and training, social casework, employment counseling, physical
development and strengthening of moral character, in accordance with the individual
needs of each prisoner, taking account of his social and criminal history, his physical
and mental capacities and aptitudes, his personal temperament, the length of his
sentence and his prospects after release.”).

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i. Work
As part of such rehabilitation, prisoners who are medically
fit are required to work.101 The work they are given should
provide them with skills that will help them find a job upon their
release from prison and allow them to contribute to their own
financial support and that of their families, thereby facilitating
their transition back into society.102 Prisons should provide
vocational training, particularly for young prisoners.103
Prisoners should be paid for their work.104 With regard to
their wages, prisoners should be allowed to spend part, send part
Furthermore, national legislation
home, and save part.105
governing health and safety at work applies equally in prison as
it does in the community.106
ii. Education
All prisoners have the right to education while
incarcerated, as well as the right to take part in cultural
activities; both of these are aimed at the full development of the
human personality.107 This right is derived from the universal,
basic human right to education for all people. Article 26 of the
UDHR provides that “everyone has the right to education.”108
101. Standard Minimum Rules, supra note 69, rules 66(1) & 71; Basic
Principles for the Treatment of Prisoners, G.A. Res. 45/111, ¶8, U.N. Doc.
A/RES/45/111 (Dec. 14, 1990).
102. Standard Minimum Rules, supra note 69, rules 66(1) & 71; Basic
Principles for the Treatment of Prisoners, G.A. Res. 45/111, ¶ 8, U.N. Doc.
A/RES/45/111 (Dec. 14, 1990).
103. Standard Minimum Rules, supra note 69, at rule 71(5).
104. Universal Declaration of Human Rights, supra note 37, art. 23; Standard
Minimum Rights, supra note 69, at rule 73(1); see also William P. Quigley, Prison

Work, Wages, and Catholic Social Thought: Justice Demands Decent Work for
Decent Wages, Even for Prisoners, 44 SANTA CLARA L. REV.1159 (2004).
105. Standard Minimum Rules, supra note 69, rule 76(2)-(3).
106. Id. rules 72(1) & 74.
107. Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, ¶ 6,
U.N. Doc. A/RES/45/111 (Dec. 14, 1990) (“All prisoners shall have the right to take
part in cultural activities and education aimed at the full development of the human
personality.”).
108. Standard Minimum Rules, supra note 69, rule 26; International Covenant
on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. Doc. No.
14531, opened for signature Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3,
1976) (Likewise, article 13 of ICESCR, which the U.S. has not ratified, acknowledges
that the right to education belongs to “everyone,” and that such a right serves to
strengthen one’s sense of human dignity, to develop one’s potential to the fullest, and
to promote societal harmony and tolerance. Further, the ICESCR declares “The

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In light of this universal right, prisons must provide and
encourage education and cultural activities.109 Education is
compulsory for young and illiterate prisoners, and “so far as
practicable, the education of prisoners shall be integrated with
the educational system of the country so that after their release
they may continue their education without difficulty.”110 Finally,
all prisoners must have access to an adequate library.111
iii. Religion
Because freedom of religious belief is a basic human right,
all prisoners shall have the right to observe their own religions
and to have access to ministers of those religions.112
Furthermore, prisoners must be allowed access to qualified
representatives of any religion.113
iv. Contact With the Outside World
“General human rights to interaction and communication
are not abrogated by the fact of imprisonment.”114 To the
contrary, contact with the outside world is generally considered
to be an essential part of a prisoner’s reintegration into
society.115
States Parties to the present Covenant recognize the right of everyone to education.
They agree that education shall be directed to the full development of the human
personality and the sense of its dignity, and shall strengthen the respect for human
rights and fundamental freedoms. They further agree that education shall enable all
persons to participate effectively in a free society, promote understanding, tolerance
and friendship among all nations and all racial, ethnic or religious groups, and
further the activities of the United Nations for the maintenance of peace.”).
109. Universal Declaration of Human Rights, supra note 37, arts. 26 & 27;
Standard Minimum Rules, supra note 69, rules 40, 77-78.
110. Standard Minimum Rules, supra note 69, rule 77.
111. Standard Minimum Rules, supra note 69, rule 40 (“Every institution shall
have a library for the use of all categories of prisoners, adequately stocked with both
recreational and instructional books, and prisoners shall be encouraged to make full
use of it.”).
112. Universal Declaration of Human Rights, supra note 37, art. 18;
International Covenant on Civil & Political Rights, supra note 38, at art. 18(1).
113. Standard Minimum Rules, supra note 69, rule 41.
114. Making Standards Work, PENAL REFORM INT’L 101 (1995),
http://www.penalreform.org/wp-content/uploads/2013/05/man-2001-makingstandards-work-en.pdf.
115. Id. See also Standard Minimum Rules, supra note 69, rule 61 (“The
treatment of prisoners should emphasize not their exclusion from the community,
but their continuing part in it.”).

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However, by the very nature of being imprisoned, there
must necessarily be some limitations on these general rights.116
Principle 5 of the Basic Principles for the Treatment of Prisoners
spells out this balance:
Except for those limitations that are demonstrably
necessitated by the fact of incarceration, all prisoners
shall retain the human rights and fundamental
freedoms set out in the Universal Declaration of
Human Rights, and, where the State concerned is a
party, the International Covenant on Economic, Social
and Cultural Rights, and the International Covenant
on Civil and Political Rights and the Optional Protocol
thereto, as well as such other rights as are set out in
other United Nations covenants.117
Under this framework, all prisoners do have the right to
communicate with the outside world, especially their families, at
regular intervals—through both correspondence and visitation.118
As the Standard Minimum Rules provide:
From the beginning of a prisoner’s sentence
consideration shall be given to his future after release
and he shall be encouraged and assisted to maintain or
establish such relations with persons or agencies
outside the institution as may promote the best
interests of his family and his own social
rehabilitation.119
If a prisoner requests to be imprisoned near his home, this
should be honored if possible.120 Furthermore, all prisoners must
be provided with adequate opportunity to communicate and/or
visit with a lawyer in a timely manner, in full confidentiality, and
116. Making Standards Work, PENAL REFORM INT’L 101 (1995),
http://www.penalreform.org/wp-content/uploads/2013/05/man-2001-makingstandards-work-en.pdf.
117. Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, ¶ 5,
U.N. Doc. A/RES/45/111 (Dec. 14, 1990).
118. Standard Minimum Rules, supra note 69, rules 37 & 79; see also
Principles on Detention or Imprisonment, supra note 80, prin. 19 (“A detained or
imprisoned person shall have the right to be visited by and to correspond with, in
particular, members of his family and shall be given adequate opportunity to
communicate with the outside world, subject to reasonable conditions and
restrictions as specified by law or lawful regulations.”).
119. Standard Minimum Rules, supra note 69, rule 69.
120. Principles on Detention or Imprisonment, supra note 80, prin. 20.

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without censorship.121 Additionally, foreign prisoners shall be
allowed to communicate with their diplomatic and consular
representatives.122 Prisoners are entitled to stay informed about
all important news items.123
E.

Complaints, Inspections, and other Procedures

Any prisoner whose rights and freedoms have been
violated has the right to a remedy which shall be determined by a
competent court or other authority.124 Prisoners have the right
to make complaints regarding their treatment and to have such
complaints dealt with promptly and confidentially.125 If a
prisoner files a complaint and it is rejected or not responded to in
a timely manner, he can bring it before a judge or other
authority.126 Prisons must provide to all prisoners information
regarding prison regulations, the complaint system, and the
disciplinary procedures when they enter the prison.127
With regard to allegations of torture, States must
guarantee a prompt and impartial investigation whenever there
are reasonable grounds to believe an act of torture or other
mistreatment has been committed.128
Prisons must be inspected on a regular basis by qualified
inspectors appointed by a competent authority that is separate
121. Principles on Detention or Imprisonment, supra note 80, prin. 18; see also
Basic Principles on the Role of Lawyers, 8th U.N. Cong. on the Prevention of Crime
and the Treatment of Offenders, principle 8 (Aug. 27 – Sep. 7, 1990) (“All arrested,
detained or imprisoned persons shall be provided, with adequate opportunities, time
and facilities to be visited by and to communicate and consult with a lawyer, without
delay, interception or censorship and in full confidentiality. Such consultations may
be within sight, but not within the hearing, of law enforcement officials.”).
122. Standard Minimum Rules, supra note 69, rule 38.
123. Id. rule 39.
124. International Covenant on Civil and Political Rights, supra note 38, art. 2;
see also Convention against Torture, supra note 42, art. 13; see also Principles on
Detention or Imprisonment, supra note 80, prin. 33.
125. Principles on Detention or Imprisonment, supra note 80, prin. 33;
Standard Minimum Rules, supra note 69, rule 36.
126. Principles on Detention or Imprisonment, supra note 80, prin. 33, ¶ 4.
127. Standard Minimum Rules, supra note 69, rule 35.
128. Convention against Torture, supra note 42, art. 12; Principles on the
Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, G.A. Res. 55/89, U.N. Doc. A/RES/55/89, ¶ 2
(Dec. 4, 2000).

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from the prison administration.129 Every prisoner has the right
to communicate openly and confidentially with the inspectors
outside the presence of prison staff.130
F.

Rules Governing Special Groups of Prisoners
i. Juveniles in Prison

“Children are to benefit from all the human rights
guarantees available to adults.”131 Thus, when children are
detained or imprisoned, they are entitled to the same rights as
adults as well as additional care and protection applicable only to
juveniles, as detailed below.132
Children who are incarcerated must never be subjected to
corporeal punishment, solitary confinement, capital punishment,
or life imprisonment without possibility of release.133 In all cases
involving juveniles, detention or imprisonment should always be
treated as a last resort and for the shortest period necessary.134
Alternatives to imprisonment should be used wherever
possible.135

129. Principles on Detention or Imprisonment, supra note 80, prin. 29, ¶ 1;
Standard Minimum Rules, supra note 69, rule 55.
130. Standard Minimum Rules, supra note 69, rule 36(2) & 55; Principles on
Detention or Imprisonment, supra note 80, prin. 29, ¶ 2.
131. U.N. HIGH COMM’N FOR HUM. RTS., HUM. RTS. & PRISONS: A POCKETBOOK
OF INT’L HUM. RTS. STNDS. FOR PRISON OFFICIALS, U.N. Sales No. E.04.XIV.5 (2005);
Universal Declaration of Human Rights, supra note 37, arts. 1 & 25, ¶ 2; Convention
on the Rights of the Child, G.A Res. 44/25, U.N. Doc. A/RES/44/25 Preamble, ¶ 1
(Sept. 2, 1990) [hereinafter Convention on Children’s Rights] (Children are defined
as “every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier.”); International Covenant on
Civil & Political Rights, supra note 38, preamble.
132. United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (“The Beijing Rules”), G.A. Res 40/33, U.N. Doc. A/RES/40/33 (Nov.
29, 1985) [hereinafter Beijing Rules]; United Nations Rules for the Protection of
Juveniles Deprived of their Liberty, G.A. Res 45/113, U.N. Doc. A/RES/45/113 (Dec.
14, 1990) [hereinafter Rules for Juveniles]; United Nations Guidelines for the
Prevention of Juvenile Delinquency (The Riyadh Guidelines), G.A. Res 45/112, U.N.
Doc. A/RES/45/112 (Dec. 14, 1990); Guidelines for Action on Children in the Criminal
Justice System, Economic and Social Council Res. 1997/30 (July 21, 1997).
133. Convention on Children’s Rights, supra note 131, art. 37(a); Beijing Rules,
supra note 132; Rules for Juveniles, supra note 132, ¶ 64, 66, 67.
134. See generally, The Issue, PENAL REFORM INTERNATIONAL,
http://www.penalreform.org/priorities/justice-for-children/issue/ (last visited Mar. 9,
2015); Convention on Children’s Rights, supra note 130, art. 37(b).
135. Id.

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The purpose of detention for juveniles should always be
rehabilitation rather than punishment.136
When detained,
children must be treated in a manner which promotes their sense
of dignity and worth, reflects their best interests, takes their age
and specific needs into account, and ultimately facilitates their
reintegration into society.137 Thus, children in custody should
receive care, protection and all necessary medical and physical
assistance.138 Incarcerated juveniles have the right to education
and vocational training.139 Prisons must make special efforts to
allow detained children to receive visits from and communicate
with family members.140
Furthermore, children must always be detained separately
from adults and be brought to trial as quickly as possible.141
Parents must be notified of the admission, transfer, release,
sickness, injury, or death of a juvenile.142
Any disciplinary procedures involving a child shall respect
the child’s dignity and be designed to instill in the child “a sense
of justice, self-respect, and respect for the basic rights of every
person.”143 Weapons are prohibited in institutions housing
juveniles.144

136. See generally, The Issue, PENAL REFORM INTERNATIONAL,
http://www.penalreform.org/priorities/justice-for-children/issue/ (last visited Mar. 9,
2015); Convention on Children’s Rights, supra note 130, art. 37(b).
137. Convention on Children’s Rights, supra note 131, arts. 3 & 37; Beijing
Rules, supra note 132, rules 1, 5, & 6; Rules for Juveniles, supra note 132, rules 1, 4,
14, 31, 79, & 80.
138. Id.
139. Rules for Juveniles, supra note 132, rules 38 & 42.
140. Convention on Children’s Rights, supra note 131, art. 9, 10, 37(c); Beijing
Rules, supra note 132, rules 13.3, 26.5, 27.2; Standard Minimum Rules, supra note
69, rule 37; Rules for Juveniles, supra note 132, rule 59.
141. Id.
142. Convention on Children’s Rights, supra note 131, art. 37(c) & 40, ¶ 2(b)(ii);
Beijing Rules, supra note 132, rules 10.1 & 26.5; Standard Minimum Rules, supra
note 69, rules 37 & 44; Rules for Juveniles, supra note 132, rules 56 & 57.
143. Rules for Juveniles, supra note 132, rule 66.
144. Id. at rule 65.

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ii. Women in Prisons
Women are entitled to the equal protection of all human
rights as men.145 Women who are incarcerated shall not be
discriminated against and shall be protected from all forms of
violence or exploitation.146 As such, female prisoners must be
housed separately from male prisoners.147 To the extent possible,
men and women should be kept in separate institutions, but if
this is not possible, then the section of a prison for women must
be kept completely separate from the men.148 Furthermore,
under international human rights law, there is an absolute
prohibition on cross-gender supervision—women prisoners are
only to be supervised and searched by female officers and staff.149
IV.

HOW
U.N.
PRISONER
ADVOCACY OPERATES

HUMAN

RIGHTS

The main way prisoners can file individual human rights
communications is directly with the U.N. Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.150
The United Nations Office of the High
Commissioner for Human Rights has appointed 38 independent

145. Universal Declaration of Human Rights, supra note 37, art. 2;
International Covenant on Civil & Political Rights, supra note 38, art. 3; Convention
on the Elimination of all Forms of Discrimination against Women (CEDAW), G.A.
Res. 34/180, art. 1-3, U.N. Doc. A/34/46 (Dec. 18, 1979); Declaration on the
Elimination of Violence against Women, art. 3 G.A. Res. 48/104, U.N. Doc.
A/RES/48/04 (Dec. 20, 1993). Unfortunately CEDAW has not been ratified by the US
so its use in prisoner advocacy is lessened. For an excellent overview of this, see
Jenni Gainsborough, Women in Prison: International Problems and Human Rights
Based Approaches to Reform, 14 WM. & MARY J. WOMEN L. 271 (2007).
146. Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW), G.A. Res. 34/180, arts. 1, 6, & 7, U.N. Doc. A/34/46 (Dec. 18,
1979); Declaration on the Elimination of Violence against Women, arts. 2 & 4, G.A.
Res. 48/104, U.N. Doc. A/RES/48/04 (Dec. 20, 1993); see also Robin Levi, Nerissa
Kunakemakorn, Azadeh Zohrabi, Elizaveta Afanasieff, & Nicole Edwards-Masuda,

Creating the "Bad Mother": How the U.S. Approach to Pregnancy in Prisons Violates
the Right to Be a Mother, 18 UCLA WOMEN'S L.J. 1, 63-74 (2010) (discusses
international human rights law and how it can be helpful for pregnant women
prisoners).
147. Standard Minimum Rules, supra note 69, rule 8(a).
148. Id.
149. Standard Minimum Rules, supra note 69, rule 53.
150. See Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment: Introduction, UNITED NATIONS HUMAN
RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/SRTortureIndex.aspx (last
visited Mar. 11, 2015).

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human rights experts to report on specific themes of human
rights.151 Each of these experts is called a Special Rapporteur.
The main expert on prisoner human rights issues is the Special
Rapporteur tasked with reviewing complaints on Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment.152
For group issues, not individual communications, the
United Nations Human Rights Council accepts complaints and
investigates “consistent patterns of gross and reliably attested
violations of all human rights and all fundamental
freedoms….”153 Advocacy groups can also use international
human rights standards as benchmarks in reports showing how
authorities are failing in their responsibilities towards prisoners.
For example, the ACLU issued a comprehensive report detailing
151. See Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment: Introduction, UNITED NATIONS HUMAN
RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/SRTortureIndex.aspx (last
visited Mar. 11, 2015); the 38 areas of human rights include: adequate housing; sale
of children; cultural rights; people with disabilities; education; environment;
extrajudicial, summary or arbitrary executions; extreme poverty; food; peaceful
assembly; freedom of expression; freedom of religion; physical and mental health;
human rights defenders; independence of judges and lawyers; indigenous peoples;
internally displaced persons; mercenaries; migrants; minority issues; older persons;
promotion of truth, justice, reparation and guarantees of non-recurrence; racism;
slavery; international solidarity; terrorism; management of hazardous substances
and wastes; trafficking of persons; transnational corporations and other businesses;
water and sanitation; and women in law and practice. See information regarding
each subject matter at Thematic Mandates, UNITED NATIONS HUMAN RIGHTS:
OFFICE
OF
THE
HIGH
COMMISSIONER
FOR
HUMAN
RIGHTS,
http://www.ohchr.org/EN/HRBodies/SP/Pages/Themes.aspx (last visited Mar. 11,
2015).
152. See Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment: Introduction, UNITED NATIONS HUMAN
RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/SRTortureIndex.aspx (last
visited Mar. 11, 2015). Many nations are uncomfortable with the power of Special
Rapporteurs to investigate and critique their human rights record and have
launched various campaigns to rein them in. For a discussion of this by an
exemplary former Special Rapporteur, see Philip Alston, Hobbling the Monitors:
Should U.N. Human Rights Monitors be Accountable? 52 HARV. INT’L L.J. 561
(2011).
153. See Human Rights Council Complaint Procedure, UNITED NATIONS
HUMAN RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaint
ProcedureIndex.aspx(last visited Mar. 11, 2015).

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human rights abuses of immigrant detainees in the U.S. utilizing
international standards.154
There is also the option of the Inter-American Human
Rights system.155 Opportunities for advocates to raise complaints
also arise when the U.S. human rights record is up for review for
compliance with individual treaties and during the regular
Universal Periodic Review.156 These types of human rights
advocacy provide opportunities for public education, organizing
and advocacy with persuasive power and authority, as the
following examples demonstrate.157
A. Prisoner Complaints to UN Special Rapporteur
The Special Rapporteur on Torture is directed to perform
several human rights tasks.
The mandate of that office comprises three main
activities: 1) transmitting urgent appeals to States
with regard to individuals reported to be at risk of
torture, as well as communications on past alleged

154. Sunita Patel & Tom Jawetz, Conditions of Confinement in Immigration
Facilities,
ACLU
NAT’L
PRISON
PROJECT,
https://www.aclu.org/sites/default/files/pdfs/prison/unsr_briefing_materials.pdf (last
visited Mar. 11, 2015).
155. Caroline Bettinger-López, The Inter-American Human Rights System: A
Primer, 42 CLEARINGHOUSE REV. 581 (2009).
156. See the section below on Shadow Reports. See also Eric Tars, Who Knows

Detention

What Lurks in the Hearts of Human Rights Violators? The Shadow (Reporter)
Knows, Human Rights Shadow Reporting: A Strategic Tool for Domestic Justice, 42
CLEARINGHOUSE
REV.
475
(2009),
available
at
http://www.nlchp.org/Clearinghouse_Shadow_Reporting_2009-01.
157. Alvin J. Bronstein & Jenni Gainsborough, Using International Human
Rights Laws and Standards for U.S. Prison Reform, 24 PACE L. REV. 811 (2004);
Jenni Gainsborough, Women in Prison: International Problems and Human Rights
Based Approaches to Reform, 14 WM. & MARY J. WOMEN & L. 271 (2007); Martin A.
Geer, Human Rights and Wrongs in Our Own Backyard: Incorporating International

Human Rights Protections Under Domestic Civil Rights Law – A Case Study of
Women in United States Prisons, 13 HARV. HUM. RTS. J. 71 (2000); Deborah Labelle,
Bringing Human Rights Home to the World of Detention, 40 COLUM. HUM. RTS. L.
REV. 79 (2008); Sara A. Rodriguez, The Impotence of Being Earnest: Status of the
United Nations Standard Minimum Rules for the Treatment of Prisoners in Europe
and the United States, 33 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 61 (2007);
Gwynne Skinner, Bringing International Law to Bear on the Detention of Refugees
in the United States, 16 WILLAMETTE J. INTL L. & DISP. RESOL. 270 (2008); Dirk van
Zyl Smit, Regulation of Prison Conditions, 39 CRIME & JUST. 503, 549-53 (2010); Kim
P. Turner, Raising the Bars: A Comparative Look at Treatment Standards for
Mentally Ill Prisoners in the United States, United Kingdom, and Australia, 16
CARDOZO J. INT’L & COMP. L. 409, 442-44 (2008).

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cases of torture; 2) undertaking fact-finding country
visits; and 3) submitting annual reports on activities,
the mandate and methods of work to the Human
Rights Council and the General Assembly. Unlike the
complaints mechanisms of the human rights treaty
monitoring bodies, the Special Rapporteur does not
require the exhaustion of domestic remedies to act.
When the facts in question come within the scope of
more than one mandate established by the
Commission, the Special Rapporteur may decide to
approach other thematic mechanisms and country
rapporteurs with a view to sending joint
communications or seeking joint missions.158
Though they offer important advocacy opportunities, there
are limitations on the authority of Special Rapporteurs. They
have no enforcement authority and limited resources. They
cannot compel countries to comply with their recommendations.
Rather, their value is in adding pressure and shining an
international spotlight on domestic concerns, as well as offering
an opportunity for community engagement and organizing.159
At the time this article was written, the Special Rapporteur
on Torture was Mr. Juan Ernesto Mendez of Argentina.160 The
standards which are used by the Special Rapporteur to evaluate
human rights complaints and conditions are undergoing change.
In August 2013, the U.N. Special Rapporteur on Torture issued a
comprehensive report which analyzed human rights protections
for prisoners and described developments in the understanding of
how these rights should be applied by focusing on pre-trial
detention, conditions of detention, prisoner safety and prison
158. See Special Rapporteur on Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment: Introduction, UNITED NATIONS HUMAN
RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/SRTortureIndex.aspx (last
visited Mar. 11, 2015) (emphasis supplied).
159. Laura Smyth, Country-Specific Mandate Holders: The Role of the Special
Rapporteur on the Situation of Human Rights in Cambodia, 15 MELB. J. INT’L L. 155,
158-62 (2014).
160. See Juan Mendez, Special Rapporteur on Torture, UNITED NATIONS
HUMAN RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/JuanMendez.aspx
(last
visited Mar. 11, 2015).

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violence, medical and mental health services, discipline and
punishment, solitary confinement, vulnerable populations within
prisons, access to legal representation, and independent
oversight.161
B. Examples of Prisoner Human Rights Complaints to
U.N. Special Rapporteur on Torture
i. Human Rights Challenge to Mistreatment
of Detained Juveniles in Massachusetts
In 2010, the Special Rapporteur on Torture was asked to
investigate use of electric shock and long term restraint used in
the treatment of juveniles in a residential program in Canton
Massachusetts.162 The children were subjected to “aversion
therapy” which included electric shocks and physical restraint.
The appeal to the human rights monitor was a 57 page brief filed
by Mental Disabilities Rights International, now Disability
Rights International, documenting the treatment and abuses at
the center.163 The Rapporteur looked into this and asked the

161. See the following report, which describes the importance of the Standard
Minimum Rules for the Treatment of Prisoners and suggests updates, U.N.
Secretary-General, Torture and other cruel, inhuman or degrading treatment or
punishment: Note by the Secretary -General, U.N. Doc. A/68/295 (Aug. 9, 2013),
available
at
http://antitorture.org/wpcontent/uploads/2013/09/SMR_Report_August_2013.pdf.
162. This urgent appeal was filed to the United Nations Special Rapporteur on
Torture by Mental Disability Rights International, now called Disability Rights
International, or DRI. See Laurie Ahern & Eric Rosenthal, Torture not Treatment:

Electric Shock and Long-Term Restraint in the United States on Children and
Adults with Disabilities at the Judge Rotenberg Center, Urgent Appeal to the United
Nations Special Rapporteur on Torture, MENTAL DISABILITY RTS. INT’L (2010),
http://www.disabilityrightsintl.org/wordpress/wpcontent/uploads/USReportandUrgentAppeal.pdf.
The
Special
Rapporteur
acknowledged receiving the complaint and initially asked the U.S. to respond. See
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Summary of information, including individual cases, transmitted to
Governments and replies received, case 234, U.N. Doc. A/HRC/16/52/Add.1 (Mar. 1,
2011) (by Juan E. Mendez). See Eric Rosenthal & Laurie Ahern, When Treatment is
Torture: Protecting People with Disabilities Detained in Institutions , 19 HUM. RTS.
available
at
BRIEF
2
(2012),
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1817&context=h
rbrief.
163. Laurie Ahern & Eric Rosenthal, Torture not Treatment: Electric Shock

and Long-Term Restraint in the United States on Children and Adults with
Disabilities at the Judge Rotenberg Center, Urgent Appeal to the United Nations
Special Rapporteur on Torture, MENTAL DISABILITY RTS. INT’L (2010), available at
http://www.disabilityrightsintl.org/wordpress/wpcontent/uploads/USReportandUrgentAppeal.pdf.

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U.S. government to investigate and respond.164 The U.N.
Rapporteur presented this situation as part of his report to the
U.N. Human Rights Council in Geneva and concluded that the
rights of the students “have been violated under the UN
Convention
against
Torture
and
other
international
standards.”165 The U.S. responded that when this was brought to
their attention, new regulations were put in place to prevent this
type of therapy.166
ii. Human Rights Challenges to California
Solitary Confinement
In March 2012, twenty California prisoners and fifteen
organizations filed a complaint with the U.N. Special Rapporteur
on Torture on behalf of 4,000 prisoners being held in isolated
segregation.167 Their communication told over twenty individual
stories of people being held in isolation, most for many years, one
for seventeen years.168 Their complaint was also filed with the
United Nations Working Group on Arbitrary Detention.169
164. Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Summary of information, including individual cases,
transmitted to Governments and replies received, case 234, U.N. Doc.
A/HRC/16/52/Add.1 (Mar. 1, 2011) (by Juan E. Mendez).
165. Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Observations on communications transmitted to
Governments and replies received, case United States of America, p. 83-84, U.N. Doc.
A/HRC/22/53/Add.4 (March 4, 2013) (by Juan E. Mendez).
166. Id. case United States of America, p. 84-85.
167. Peter A. Schey & Carlos R. Holguin, Urgent Petition to United Nations

Juan E. Mendez UN Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, CENTER FOR HUMAN RIGHTS AND
CONSTITUTIONAL
LAW
(2012),
available
at
http://www.centerforhumanrights.org/PDFs/Final%20Public%20UN%20Petition%20t
o%20Special%20Rapporteur%20on%20Torture.pdf (last visited Mar. 11, 2015).
168. Peter A. Schey & Carlos R. Holguin, Urgent Petition to United Nations

Juan E. Mendez UN Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, CENTER FOR HUMAN RIGHTS AND
available
at
CONSTITUTIONAL
LAW
(2012),
¶
18,
http://www.centerforhumanrights.org/PDFs/Final%20Public%20UN%20Petition%20t
o%20Special%20Rapporteur%20on%20Torture.pdf (last visited Mar. 11, 2015).
169. Peter A. Schey & Carlos R. Holguin, Urgent Petition to United Nations
Working Group on Arbitrary Detention, Human Rights Council, United Nations
General Assembly, CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW (2012),

available

at

http://www.centerforhumanrights.org/PDFs/Fin.%20PUBLIC%20UN%20Petition%20
Committee%20on%20Arbit%20Detention.pdf.

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Amnesty International joined in and issued a report finding that
California’s use of solitary confinement violates international
human rights laws.170
In May 2012, a federal lawsuit was filed challenging the
use of prolonged solitary confinement on behalf of prisoners, some
of whom had been in solitary confinement for 28 years.171 On
July 8, 2013, thousands of California prisoners, including many of
the people who filed the international human rights complaint,
began a peaceful hunger strike to protest solitary confinement.172
On August 16, 2013, over 300 prisoners in solitary confinement in
California asked the U.N. Special Rapporteur to visit the prison
and to meet with them and help resolve the human rights
violations.173
The U.N. Special Rapporteur on Torture, Juan E. Mendez,
issued a public statement in August 23, 2013 in which he urged
the U.S. government to abolish the use of prolonged or indefinite
solitary confinement.174 The Special Rapporteur observed that
there are about 80,000 prisoners in the U.S. who are subject to
solitary confinement, nearly 12,000 of which are in California.
He went on to ask for an absolute ban on solitary confinement of
juveniles, people with psychosocial disabilities or other
disabilities and health conditions, pregnant and breastfeeding
women and those serving life sentences or those on death row.175

170. USA: The Edge of Endurance, Prison Conditions in California’s Security
Units,
AMNESTY
INT’L
(2012),
http://www.amnesty.org/en/library/asset/AMR51/060/2012/en/3af9a573-df33-4d9bbfdb-5ef393df2b24/amr510602012en.pdf.
171. See Second Amended Complaint, Ruiz v. Brown, No. 4:09-cv-05796-CW,
(N.D. Cal. 1990), available at http://ccrjustice.org/files/Ruiz-Amended-ComplaintMay-31-2012.pdf.
172. Ian Lovett, Inmates End Hunger Strike in California, N.Y. Times (Sept. 5,
2013),
http://www.nytimes.com/2013/09/06/us/inmates-end-hunger-strike-incalifornia.html.
173. UN Torture Rapporteur Juan Mendez Visits Hunger Strike Families ,
PRISONER HUNGER STRIKE SOLIDARITY COALITION
(Oct.
22,
2013),
https://www.popularresistance.org/un-torture-rapporteur-juan-mendez-visits-hungerstrike-families.
174. California Jails: “Solitary Confinement Can Amount to Cruel Punishment,
Even Torture” – UN rights expert, UNITED NATIONS, OFFICE OF HIGH
COMMISSIONER FOR HUMAN RIGHTS (Aug. 23, 2013), available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13655&La
ngID=E.
175. Id.

Housing

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In its 2014 review of U.S. compliance with the Convention
Against Torture, the U.N. Committee on the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment issued conclusions and recommendations noting
concern with the extensive use of solitary confinement and other
forms of isolation in U.S. prisons and jails.176 The Special
Rapporteur visited the California Pelican Bay prison in December
2014.
iii. Human Rights Challenges to Guantanamo
A number of human rights complaints were filed on behalf
of Guantanamo prisoners, often as supplements to federal
litigation or when federal litigation proved less than receptive.
Five people confined at Guantanamo who were not U.S. citizens
challenged the use of waterboarding, sexual humiliation, short
shackling and the deployment of dogs in interrogation sessions
calling them torture.177 Another prisoner of Guantanamo, held
for over twelve years without charge, challenged torture,
degrading and inhuman treatment at several U.S. bases in
Afghanistan and Guantanamo.178 Others from Algeria asked
that they not be repatriated to Algeria out of fear of torture
there.179
The Special Rapporteur has tried repeatedly to visit the
U.S. Guantanamo prison but has not been permitted free access
176. Committee against Torture, Concluding observations on the third to fifth
periodic reports of the United States of America, ¶ 20, 1264th and 1267th Sess., Nov.
12-13, 2014, and adopted at 1276th and 1277th Sess., Nov. 20, 2014, U.N. Doc.
CAT/C/USA/CO/3-5
(Dec.
19,
2014),
available
at
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqh
Kb7yhsuLMmIdNURtE47fFHU%2bcDW3YqC%2f3zHkM7HdrMe8Ha0T3LrxFZw2D
BuPPjJtmrR1GUBC%2fjzvD8gcT%2fCPPgMygXRPGjD4yWY90dyGDoPyZiQO4.
177. See Report of the Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment, Observations on communications
transmitted to Governments and replies received, addendum, ¶ 154, U.N. Doc.
A/HRC/22/53.Add.4 (March 12, 2013) (by Juan E. Mendez).
178. See Report of the Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment, Observations on communications
transmitted to Governments and replies received, addendum, ¶ 155, U.N. Doc.
A/HRC/22/53.Add.4 (March 12, 2013) (by Juan E. Mendez).
179. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Summary of information, including individual
cases, transmitted to governments and replies received, addendum , cases 235 &236,
U.N. Doc. A/HRC/16/52/Add. 1 (March 1, 2011) (Juan E. Mendez).

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to the prisoners.180 The U.N. Committee on the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment noted its deep concern about
Guantanamo issues and found them to be a CAT violation in its
review of the human rights record of the U.S. in November
2014.181
iv. Other Prisoner Human Rights Challenges
Reviewed by U.N. Special Rapporteur
The Special Rapporteur looks at complaints by individuals
whose human rights are being violated and reviews more
systematic abuses of detained people. In 2009, the Special
Rapporteur investigated widespread reports of pregnant women
in U.S. jails and prisons being restrained by their ankles and
wrists when being transported to the hospital and undergoing
childbirth, despite the presence of armed guards.182
In 2010, the Special Rapporteur received information and
asked the U.S. to report back on a mentally ill juvenile in
Montana, who was imprisoned since he was fifteen and
transferred to an adult facility that kept him in solitary for over a
year.183 Also in 2010, a number of organizations filed a human
180. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Observations on communications transmitted
to Governments and replies received, addendum, ¶ 154, U.N. Doc.
A/HRC/22/53.Add.4 (March 12, 2013) (Juan E. Mendez).
181. Committee against Torture, Concluding observations on the third to fifth
periodic reports of the United States of America, ¶ 20, 1264th and 1267th Sess., Nov.
12-13, 2014, and adopted at 1276th and 1277th Sess., Nov. 20, 2014, U.N. Doc.
CAT/C/USA/CO/3-5
(Dec.
19,
2014),
available
at
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqh
Kb7yhsuLMmIdNURtE47fFHU%2bcDW3YqC%2f3zHkM7HdrMe8Ha0T3LrxFZw2D
BuPPjJtmrR1GUBC%2fjzvD8gcT%2fCPPgMygXRPGjD4yWY90dyGDoPyZiQO4.
182. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Summary of information, including individual
cases, transmitted to Governments and replies received, addendum , case 275, U.N.
Doc. A/HRC/13/39/Add. 1(February 25, 2010) (Manfred Nowak).
The ACLU reported that in 2012 a federal court in Illinois approved a $4.1
million dollar settlement for women and girls who had undergone this mistreatment.
See Amy Fettig, $4.1 Million Settlement Puts Jails on Notice: Shackling Pregnant
Women is Unlawful, ACLU: BLOG OF RIGHTS (May 24, 2012), available at
https://www.aclu.org/blog/content/41-million-settlement-puts-jails-notice-shacklingpregnant-women-unlawful.
183. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Summary of information, including individual
cases, transmitted to governments and replies received, addendum, case 233, U.N.
Doc. A/HRC/16/52/Add. 1 (March 1, 2011) (Juan E. Mendez) (One of the allegations is

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rights complaint on behalf of Steve Richardson, a resident of Los
Angeles’ Skid Row and an active human rights advocate for
people there, indicating that he had been specifically and unfairly
targeted and incarcerated by the Los Angeles Police Department
because he was a human rights advocate.184 Mr. Richardson was
an activist in Los Angeles who had been working to promote and
defend human rights in the Skid Row community.
In 2011, the Special Rapporteur challenged the U.S.
government in the case of Bradley Manning, investigating
In 2011, the Special
prolonged solitary confinement.185
Rapporteur challenged the eleven month solitary confinement of
Bradley Manning by U.S. military authorities following his arrest
in May 2010.186 The Special Rapporteur reported on complaints
and its investigation of the torture of hundreds of detainees in
Iraq at Abu Ghraib and other places of detention.187 Also in
2011, a human rights complaint was lodged with the Special
Rapporteur by the National Immigrant Justice Center
challenging sexual abuse, solitary confinement, and withholding

that the juvenile “receives minimal water and is only allowed to eat NutraLoaf, a
food substitute comprised of different ingredients mixed together.”).
184. Letter from Becky Dennison, Co-Director, Los Angeles Community Action
Network, to Margaret Sekaggya, Special Rapporteur on the situation of human
rights defenders (Nov. 23, 2010), available at
www.nesri.org/sites/default/files/richardson_urgentappeal_0.pdf.
The
aforementioned Urgent Appeal was filed with the Rapporteur for Human Rights
Defenders, challenging the police abuse and harassment of Mr. Richardson by Los
Angeles Community Action Network, the National and Economic Social Rights
Initiative, and a coalition of groups. This complaint addressed some criminal justice
issues but was directed not to the Special Rapporteur on Torture but to the Special
Rapporteur on Human Rights Defenders. For more about this, see Cynthia Soohoo &
Diana Hortsch, Who is a Human Rights Defender? An Essay on Sexual and
Reproductive Rights Defenders, 65 U. MIAMI L. REV. 981, 982-983 (2011).
185. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Observations on communications transmitted
to Governments and replies received, addendum, ¶ 170, U.N. Doc.
A/HRC/19/61/Add.4 (Feb. 29, 2012) (Juan Mendez).
186. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Observations on communications transmitted
to Governments and replies received, addendum, ¶ 170, U.N. Doc.
A/HRC/19/61/Add.4 (Feb. 29, 2012) (Juan Mendez).
187. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Summary of information, including individual
cases, transmitted to governments and replies received, addendum, case 238, U.N.
Doc. A/HRC/16/52/Add. 1 (March 1, 2011) (Juan E. Mendez).

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of medication for HIV and hormone therapy. 188 The Special
Rapporteur challenged U.S. ill treatment and torture in
immigration facilities against sixteen gay and transgender
detainees kept and poorly treated in solitary confinement.189
In 2012, a human rights complaint was filed on behalf of
Russell Maroon Shoats, a Pennsylvania prisoner who had spent
twenty one years in solitary confinement.190
The Special
Rapporteur asked the U.S. to address the human rights
complaints of solitary confinement of Robert Cuff who was being
held in Shreveport Louisiana.191 The Special Rapporteur also
asked the U.S. to investigate and report on the detention of
Daniel Chong by the Drug Enforcement Administration who was
arrested for smoking marijuana and then left handcuffed in a five
foot by ten foot cell for five days without food, water or restroom
facilities.192

188. LGBT Clients Who Reported Gross Mistreatment in Immigration Custody
Remain Detained, (May 7, 2011), www.immigrantjustice.org/staff/blog/lgbt-clientswho-reported-gross-mistreatment-immigration-custody-remain-detained.
The
complaint is available at Letter from National Immigrant Justice Center to Officer
Margo Schlanger, Dep’t of Homeland Security (April 13, 2011), available at
http://www.immigrantjustice.org/sites/immigrantjustice.org/files/OCRCL%20Global%
20Complaint%20Letter%20April%202011%20FINAL%20REDACTED_0.pdf.
189. Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Observations on communications transmitted
to Governments and replies received, addendum, ¶ 172, U.N. Doc.
A/HRC/19/61/Add.4 (Feb. 29, 2012) (Juan Mendez).
190. The complaint, filed by family members and a coalition of human rights
groups,
is
available
at
http://russellmaroonshoats.wordpress.com/2012/07/16/complaint-to-un-specialrapporteur-international-campaign-to-free-russell-maroon-shoats-from-two-decadessolitary-confinement/. Federal litigation was filed the next year. See Shoatz v.
Wetzel, No. 2:05-MC-02025, 2014 U.S. Dist. LEXIS 9386 (W.D. Pa. 2014), available

at
https://docs.google.com/file/d/1OpkCKbSoRieq3TUnIeFrWuJjFa2_f4X9HCT2fX9jBTn
rkakoiswGyDsWk4Xt/edit?pli=1. In 2014, Russell Shoats was released from solitary
confinement to rejoin the general population. See Abolitionist Law Center, Russell

Maroon Shoatz Released From Solitary Confinement – First Time in General
Population in More than 22 Years, SAN FRANCISCO BAY VIEW, NATIONAL BLACK
NEWSPAPER,
http://sfbayview.com/2014/02/russell-maroon-shoatz-released-fromsolitary-confinement-first-time-in-general-population-in-more-than-22-years/.
191. Letter from Juan E. Mendez, Speical Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment, regarding Robert Cuff, to the
United States (June 22, 2012), available at
https://spdb.ohchr.org/hrdb/22nd/public_-_UA_USA_22.06.12_(7.2012).pdf.
192. Letter from Juan E. Mendez, Speical Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment, regarding Daniel Chong, to
the United States (July 31, 2012), available at

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In 2013, the U.N. human rights expert on torture called on
U.S. authorities to end solitary confinement of a Louisiana man,
Albert Woodfox, after four decades.
Though U.N. special
rapporteur Juan Mendez stated that solitary confinement “clearly
amounts to torture and should be lifted immediately,” to date it
has not.193
C. Shadow Reports to U.N. Human Rights Monitors
Another human rights advocacy opportunity occurs when
the United States is up for review by U.N. bodies checking on its
compliance with international human rights guarantees.194 The
U.S. has ratified three of the nine major human rights treaties:
the International Covenant on Civil and Political Rights (ICCPR);
the International Convention on the Elimination of all forms of
Racial Discrimination (CERD); and the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT).195 These reviews of U.S. government policy
evaluate policies with international human rights standards in
issues such as racism,196 torture,197 and civil rights.198 In each
https://spdb.ohchr.org/hrdb/22nd/public_-_AL_USA_31.07.12_(13.2012).pdf.
Mr. Chong was awarded $4.1 million in damages in 2013. See Stan Wilson, Daniel
Chong, Forgotten in DEA Cell, Settles Suit for $4.1 Million, CNN (Aug. 1, 2013),
http://www.cnn.com/2013/07/30/justice/california-dea-settlement/.
193. UN Rights Expert Deplores US Prisoners ‘Torture’, BIGSTORY.AP.ORG,
http://bigstory.ap.org/article/un-rights-expert-deplores-us-prisoners-torture,
(last
visited Feb. 19, 2015).
194. Carole Bettinger-Lopez, Davida Finger, Meetali Jain, Sarah Paoletti, &
Deborah M. Weisman, Redefining Human Rights Lawyering Through the Lens of
Critical Theory: Lessons for Pedagogy and Practice, 18 GEO. J. ON POVERTY L. &
POL’Y 337, n. 27 (2011); see also Pamela Quinn Saunders, The Integrated
Enforcement of Human Rights, 45 N.Y.U. J. INT’L L. & POL. 97, 101-102 (2012).
195. See Margaret Huang, “Going Global”: Appeals to International and
Regional Human Rights Bodies, 2 BRINGING HUMAN RIGHTS HOME 105, 111
(Cynthia Soohoo, Catherine Albisa, & Martha F. Davis eds., 2009). The other six,
which the U.S. has not ratified, include: the International Covenant on Economic,
Social and Cultural Rights (IESCR); the Convention on the Elimination of all Forms
of Discrimination against Women (CEDAW); the Convention on the Rights of the
Child (CRC); the International Convention on the Protection and Rights of all
Migrant Workers and Members of their Families (ICRMW); the International
Convention for the Protection of all Persons from Enforced Disappearances; and the
Convention on the Rights of Persons with Disabilities. Id. at 110-111.
196. See, e.g., International Convention on the Elimination of All Forms of
Racial Discrimination, opened for signature Dec. 21, 1965, 660 U.N.T.S. 195; G.A.
Res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966)
(entered into force Jan. 4, 1969).

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of these processes, the U.S. is required to submit reports to
demonstrate its compliance with the specific human rights
treaties. Human rights advocates submit alternative “shadow”
reports which highlight problems in the U.S. and ask the U.N. to
compel the U.S. to respond to those complaints and highlight
problems when the human rights body makes its concluding
observations about compliance.199
As an example, in 2014, prisoner human rights issues in
the U.S. were examined by the United Nations during the review
of the U.S. by the Committee against Torture. Dozens of human
rights organizations submitted shadow reports to the U.N.
pointing out issues with solitary confinement, immigration
detention, shackling pregnant inmates, and other issues.200 The
Committee included many of these concerns when it issued its
concluding observations about U.S. human rights compliance in
November 2014.201
Other treaties also offered opportunities to underscore
ongoing prisoner human rights problems like prisoner
disenfranchisement. In 2013 dozens of community and human
rights organizations submitted shadow reports to the U.N.
Human Rights Committee pointing out problems with U.S.
policies and practices when the US was up for review of
compliance with the International Covenant on Civil and Political

197. See, e.g., Convention Against Torture, supra note 42.
198. See, e.g., International Covenant on Civil and Political Rights, supra note
38.
199. Eric Tars, Who Knows What Lurks in the Hearts of Human Rights
Violators? The Shadow (Reporter) Knows, Human Rights Shadow Reporting: A
Strategic Tool for Domestic Justice, 42 CLEARINGHOUSE REV. 475 (2009), available at
http://www.nlchp.org/Clearinghouse_Shadow_Reporting_2009-01. The process of
organizing and submitting a shadow report is informal. See Producing Shadow
Reports to the CEDAW Committee: A Procedural Guide, INTERNATIONAL WOMEN’S
RIGHTS ACTION WATCH, http://www1.umn.edu/humanrts/iwraw/proceduralguide08.html (last visited Mar. 12, 2015).
200. See CAT Shadow Reports, US HUMAN RIGHTS NETWORK,
http://www.ushrnetwork.org/cat-shadow-reports (last visited Mar. 12, 2015).
201. Committee against Torture, Concluding observations on the third to fifth
periodic reports of the United States of America, 1364th and 1267th Sess., Nov. 1213, 2014, and adopted at 1276th and 1277th Sess., Nov. 20, 2014, U.N. Doc.
CAT/C/USA/CO/3-5
(Dec.
19,
2014),
available
at
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqh
Kb7yhsuLMmIdNURtE47fFHU%2bcDW3YqC%2f3zHkM7HdrMe8Ha0T3LrxFZw2D
BuPPjJtmrR1GUBC%2fjzvD8gcT%2fCPPgMygXRPGjD4yWY90dyGDoPyZiQO4.

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Rights. 202 Many of these concerns can be found in the
concluding observations about the U.S. by the Human Rights
Committee.203 Similar shadow reporting by community and
human rights organizations when the U.S. was undergoing
review for compliance with the racial discrimination
requirements of CERD yielded significant concerns in the areas of
juvenile justice, criminal justice, access to public defenders, police
brutality and detention at Guantanamo.204 Additionally, every
four years each country member of the U.N. undergoes an
evaluation of their human rights record administered by the
Human Rights Council in a process called Universal Periodic
Review (UPR).205
V.

PRISONER ADVOCACY WITH INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS

There are also opportunities for prisoner advocacy with
the Inter-American Commission on Human Rights (IACHR).206
202. See Shadow Report Submissions Compiled by the US Human Rights
Network to the United Nations Human Rights Committee (Sept. 13, 2013), available

at
http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/USA/INT_CCPR_N
GO_USA_15210_E.pdf. See also DEMOCRACY IMPRISONED: A REVIEW OF THE
PREVALENCE AND IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED
STATES
(2013),
http://sentencingproject.org/doc/publications/fd_ICCPR%20Felony%20Disenfranchise
ment%20Shadow%20Report.pdf.
203. See Human Rights Committee, Concluding observations on the fourth
report of the United States of America, 3044th, 3045th, & 3046th Sess., Mar. 13-14,
2014, and adopted at 3061st Sess., March 26, 2014, U.N. Doc. CCPR/C/USA/CO/4
available
at
(Apr.
23,
2014),
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqh
Kb7yhsijKy20sgGcLSyqccX0g1nnMFNOUOQBx7X%2bI55yhIwlkDk6CF0OAdiqu2L
8SNxDB4%2bVRPkf5gZFbTQO3y9dLrUeUaTbS0RrNO7VHzbyxGDJ%2f.
204. See Committee on the Elimination on Racial Discrimination, Concluding

observations on the combined seventh to ninth periodic reports of the United States
of America, ¶ 17, 20-23, 229th & 2300th Sess., Aug. 13-14, 2014, and adopted at
2317th Sess., Aug. 26, 2014, U.N. Doc. CERD/C/USA/CO/7-9 (Aug. 29, 2014),

available

at

http://www.ushrnetwork.org/sites/ushrnetwork.org/files/cerd_concluding_observation
s2014.pdf.
205. Terrence Rogers, Using International Human Rights Law to Combat
Racial Discrimination in the U.S. Criminal Justice System, 14 SCHOLAR 375, 424
(2011).
206. Caroline Bettinger-López, The Inter-American Human Rights System: A
Primer, 42 CLEARINGHOUSE REV. 581, 582 (2009).
See also What is the IACHR?,
ORGANIZATION OF AMERICAN STATES: INTER-AMERICAN COMMISSION ON HUMAN

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The foundation for its work is the 1948 American Declaration on
the Rights and Duties of Man.207 This set of human rights
guarantees was adopted by the OAS months before the Universal
Declaration of Human Rights.208 The IACHR, based in
Washington D.C., was founded in 1959 “to promote the
observance and defense of human rights.”209
The IACHR offers a unique opportunity for individuals
and organizations to bring human rights complaints directly
against the U.S. and its states and have those complaints decided
in the international arena.210 People can file complaints against
the U.S. with the IACHR only six months after they have
exhausted domestic legal remedies, or they can show that seeking
such remedies is futile.211
The IACHR provides a number of services for people who
wish to file human rights complaints. There is a simple brochure
which explains what it is, how it operates, and how to file
complaints.212 There are online forms for prisoners or others to
fill out to file human rights complaints.213

RIGHTS, http://www.oas.org/en/iachr/mandate/what.asp (last visited Mar. 12, 2015);
see also DAVID WEISSBRODT, FIONNUALA NÍ AOLÁIN, JOAN FITZPATRICK, & FRANK
NEWMAN, INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS (4th ed.
2009) (describing the origins, functions, and responsibility of the Inter-American
Commission on Human Rights).
207. American Declaration of the Rights and Duties of Man, ORGANIZATION OF
AMERICAN STATES: INTER-AMERICAN COMMISSION OF HUMAN RIGHTS (1948),
http://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htm (last
visited Feb. 18, 2015).
208.
See Our
History,
ORGANIZATION
OF
AMERICAN
STATES,
http://www.oas.org/en/about/our_history.asp (last visited Mar. 12, 2015).
209. Caroline Bettinger-López, The Inter-American Human Rights System: A
Primer, 42 CLEARINGHOUSE REV. 581, 582-83 (2009). See also What is the IACHR?,
ORGANIZATION OF AMERICAN STATES: INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS (IACHR), http://www.oas.org/en/iachr/mandate/what.asp (last visited Mar.
12, 2015).
210. Caroline Bettinger-López, The Inter-American Human Rights System: A
Primer, 42 CLEARINGHOUSE REV. 581, 583 (2009).
211. See Rules of Procedure of the Inter-American Commission on Human
Rights, ORGANIZATION OF AMERICAN STATES: INTER-AMERICAN COMMISSION ON
HUMAN
RIGHTS
(IACHR),
Art.
31,
http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp (last visited Mar. 12,
2015).
212. Petition and Case System: Informational Brochure, ORGANIZATION OF
AMERICAN STATES: INTER-AMERICAN COMMISSION ON HUMAN RIGHTS (2010),
https://www.oas.org/en/iachr/docs/pdf/HowTo.pdf.
213. Instructions: Petition For Filing Petitions Alleging Human Rights
Violations,
INTER-AMERICAN
COMMISION
ON
HUMAN
RIGHTS,

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Once a complaint is filed with the IACHR there is a
preliminary decision whether the complaint meets their
requirements.214 If it does, it is assigned a case number and is
forwarded to the U.S. for its response, which is normally expected
in three months.215 If the case is authorized to go forward, the
IACHR can conduct investigations, hold public hearings, and visit
the site of the complaint.216 All public proceedings are held in
Washington, D.C.217 In serious and urgent situations, the
IACHR can request the U.S. adopt precautionary measures to
prevent irreparable harm against individuals while the entire
human rights case is proceeding.218
Human rights advocacy can have an indirect impact on
the U.S. judicial system as well.219 For example, the IACHR
challenged the legality of the death penalty for juveniles in a
2002 case, which many think helped set the stage for the U.S.

https://www.cidh.oas.org/cidh_apps/instructions.asp?gc_language=E (last visited
Mar. 12, 2015).
214. See Rules of Procedure of the Inter-American Commission on Human
Rights, ORGANIZATION OF AMERICAN STATES: INTER-AMERICAN COMMISSION ON
HUMAN
RIGHTS
(IACHR),
Art.
30,
http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp (last visited Mar. 12,
2015). There is criticism that due to increased filings and budget problems, the
IACHR can often take as much as four years for the IACHR to make the initial
determination of admissibility, and an average of six and a half years from the
beginning to the final decision.
See Maximizing Justice, Minimizing Delay:
Streamlining Procedures of the Inter-American Commission on Human Rights, THE
UNIV. OF TEX. SCH. OF LAW HUMAN RIGHTS CLINIC, 4 (2011),
https://www.utexas.edu/law/clinics/humanrights/work/Maximizing_Justice_Minimizi
ng_Delay_at_the_IACHR.pdf.
215. See Rules of Procedure of the Inter-American Commission on Human
Rights, ORGANIZATION OF AMERICAN STATES: INTER-AMERICAN COMMISSION ON
HUMAN
RIGHTS
(IACHR),
Art.
30,
§3,
http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp (last visited Mar. 12,
2015).
216. Id. at arts. 39 & 40.
217. Caroline Bettinger-López, The Inter-American Human Rights System: A
Primer, 42 CLEARINGHOUSE REV. 581, 587 (2009).
218. See Rules of Procedure of the Inter-American Commission on Human
Rights, ORGANIZATION OF AMERICAN STATES: INTER-AMERICAN COMMISSION ON
HUMAN
RIGHTS
(IACHR),
Art.
25,
http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp (last visited Mar. 12,
2015).
219. See Penny M. Venetis, Enforcing Human Rights in the United States:

Which Tribunals are Best Suited to Adjudicate Treaty-Based Human Rights
Claims?, 23 S. CAL. REV. L. & SOC. JUST. 121 (2014).

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Supreme Court to outlaw it in its 2005 decision Roper v.
Simmons. 220
Like in other U.N. human rights advocacy, there are
limitations on what the IACHR can do for prisoners and others
who file human rights complaints. 221 While it offers a public
forum to air human rights complaints and the organizing that
involves, its decisions are advisory.222 The U.S. has refused to
comply with some provisional orders of the IACHR, most
blatantly in death penalty cases.223 Advocates should also realize
there is an Inter-American Court for Human Rights, established
in 1979, which, like the Commission, is part of the OAS.
However, it is much less effective for U.S. human rights
complaints because the federal government has refused to sign on
to the treaty which gives the court jurisdiction against the United
States.224

220. See Roper v. Simmons, 543 U.S. 551 (2005). For the IACHR decision, see
Domingues v. U.S., 12.285, Inter-Am. Comm’n H.R., Report No. 62/02, 84-85 (2002).
See William A. Schabas, International Law, the United States of America and
Capital Punishment, 31 SUFFOLK Transnat’l L. Rev. 377, 398 (2008).
221. See Rules of Procedure of the Inter-American Commission on Human
Rights, ORGANIZATION OF AMERICAN STATES: INTER-AMERICAN COMMISSION ON
HUMAN
RIGHTS
(IACHR),
Arts.
39
&
40,
http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp (last visited Mar. 12,
2015); See Inter-Am. Comm’n H.R., Rules of Procedure, Art. 39: On-site investigation
–
Art.
40:
Friendly
Settlement.,
available
at
http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp (last visited February 21,
2015).
222. Caroline Bettinger-López, The Inter-American Human Rights System: A
Primer, 42 CLEARINGHOUSE REV. 581, 584-85 (2009).
223. See Jo M. Pasqualucci, Interim Measures in International Human Rights:
Evolution and Harmonization, 38 Vand. J. Transnat’l L. 1, 24 n. 119 (2005), for a
discussion of the Raul Garza death penalty case where the IACHR stated the actions
of the U.S. “emasculates the efficacy of the Commission’s process, deprives
condemned persons of their right to petition in the Inter-American human rights
system, and results in serious and irreparable harm to those individuals, and
accordingly is inconsistent with the state’s human rights obligations.” Id. (citing
Inter-Am. Comm’n H.R. Report No. 52/01, Case 55, 12.243, Juan Raul Garza (April
4, 2001)); see also 3 Sandra Babcock, Human Rights Advocacy in United States
Capital Cases, in BRINGING HUMAN RIGHTS HOME: PORTRAITS OF THE MOVEMENT 91,
103-105 (Cynthia Soohoo, Catherin Albisa, & Martha F. Davis eds., Praeger
Publishers 2008) .
224. Caroline Bettinger-López, The Inter-American Human Rights System: A
Primer, 42 CLEARINGHOUSE REV. 581, 584 (2009).

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A. Examples of IACHR Prisoner Human Rights
Advocacy
In February 2002, petitions on behalf of prisoners at
Guantanamo Bay were submitted by the Center for
Constitutional Rights, the Center for Justice and International
Law and others requested precautionary measures be taken by
the IACHR to preserve their human rights.225 In March 2002, the
IACHR granted the request for precautionary measures advising
the U.S. “to take urgent measures necessary to have the legal
status of the detainees at Guantanamo Bay determined by a
competent tribunal.” 226
In September 2012, a number of human rights groups filed
a 96 page brief supporting their petition to their IACHR
challenge to the human rights problems of incarcerating juveniles
in Michigan for life.227 Petitioners raised the cases of more than
thirty juveniles who were sentenced to life in prison in violation
of provisions of the American Declaration of Human Rights which
guarantee freedom from inhumane treatment, protection of
children, freedom from cruel or unusual punishment and the
right to rehabilitation.228 In 2013, the IACHR held a hearing on

225. See Guantanamo Advocacy at the Inter-American Commission on Human
CENTER
FOR
CONSTITUTIONAL
RIGHTS,
(IACHR),
http://ccrjustice.org/IACHRHearingGTMO (last visited February 21, 2015).
226. Precautionary Measures regarding Guantanamo: PM 259/02 – Persons
detained by the United States in Guantanamo Bay, ORGANIZATION OF AMERICAN
STATES:
INTER-AMERICAN
COMMISSION
ON
HUMAN
Rights,
http://www.oas.org/en/iachr//pdl/decisions/GuantanamoMC.asp#MC25902
(last
visited February 21, 2015).; see also Steven R. Ratner, Jus Ad Bellum and Jus in
Bello After September 11, 96 AM. J. INT’L L. 905, 913 (2002); see also Derek Jinks &
David Sloss, Is the President Bound by the Geneva Conventions? , 90 CORNELL L.
REV. 97, 114, n. 80 (2004).
227. See Hill v. United States of America, Inter-Am. Comm’n H.R., Case No.
12.866
(Sep.
4,
2012),
available
at
https://www.aclu.org/files/assets/case_no_12866_final_observations_regarding_the_m
erits_of_the_case_including_annexes.pdf. This brief contains overviews on the
jurisdiction of the IACHR, reasons for taking the case, and powerful facts. For a
comprehensive look at the intertwined litigation and campaign for human rights of
juveniles in Michigan see 3 Deborah LaBelle, Ensuring Rights for All: Realizing
Human Rights for Prisoners, in BRINGING HUMAN RIGHTS HOME: PORTRAITS OF THE
MOVEMENT 137, 139-145 (Cynthia Soohoo, Catherin Albisa, & Martha F. Davis eds.,
Praegar Publishers 2008).
228. See Hill v. United States of America, Inter-Am. Comm’n H.R., Case No.
available
at
12.866
(Sep.
4,
2012),

Rights

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[Vol. 16

juvenile incarceration with adults at the request of the ACLU
and others.229
In 2014, the IACHR expressed concern over the detention
conditions at Rikers Island prison in New York a year after the
death of an inmate with disabilities and urged the U.S. to take
the necessary steps to investigate the death and prevent a
reoccurrence.230 At the request of the ACLU and many other
human rights organizations, the IACHR held a 2013 hearing to
investigate the use of solitary confinement in the US.231
VI.

CONCLUSION

Prisoners in the United States are subjected to inhuman
treatment every hour of every day in every city and state in the
country. The nation’s federal courts are very difficult challenges
for complaints by prisoners. Human rights advocacy, while
lacking the enforcement mechanisms of federal litigation, does
offer prisoners opportunities to raise the injustices of their
conditions and treatment to people who are open to a fair
examination of the evidence. Many advocates use an intertwined
advocacy approach combining litigation and human rights
advocacy. Some use only human rights advocacy. This kind of
advocacy offers opportunities for people to tell their stories, to
document abuses and mistreatment, to educate the public and
media, to establish connections with other human rights
https://www.aclu.org/files/assets/case_no_12866_final_observations_regarding_the_m
erits_of_the_case_including_annexes.pdf.
229. See Melodie Arian, Human Rights Situation of Children Deprived of
Liberty with Adults in the United States, HUMAN RIGHTS BRIEF, CENTER FOR
HUMAN
RIGHTS
&
HUMANITARIAN
LAW
(March
14,
2010),
http://hrbrief.org/2013/03/human-rights-situation-of-children-deprived-of-libertywith-adults-in-the-united-states/.
230. See Press Release, Organization of American States: Inter-American
Commission on Human Rights (IACHR), IACHR expresses Concern over Detention
Conditions at Rikers Island Prison, United States, a year after the tragic death of an
inmate
(Sept.
18,
2014),
available
at
http://www.oas.org/en/iachr/media_center/PReleases/2014/104.asp.
231. See American Civil Liberties Union, Written Statement of the ACLU for

the Inter-American Commission on Human Rights: Hearing on Solitary Confinement
in
the
Americas,
(March
12,
2013),
available
at
https://www.aclu.org/files/assets/aclu_iachr_testimony_solitary_confinement_final_ci
te_checked.pdf; see also Center for Constitutional Rights, Written Testimony of the

Center for Constitutional Rights: Human Rights and Solitary Confinement in the
Americas: Thematic Hearing Before the Inter-American Commission on Human
Rights, CENTER FOR CONSTITUTIONAL RIGHTS (March 12, 2013), available at
http://www.aclu.org/files/assets/ccr_testimony_to_iachr_for_thematic_hearing_3-1213.pdf.

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advocates locally and internationally, and be part of the
movements for social change that are ultimately the only chance
to bring justice into this horrible system.

 

 

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