Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

The Walls Are Closing In! Torture in Global Prison Systems

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Bryana Spann

On March 1, 2017, Spike TV premiered the first episode of “Life: The Kalief Browder Story”, a six-part docu-series about the life, incarceration and death of Kalief Browder. In 2010, Browder was arrested at the age of sixteen for allegedly stealing a backpack and then held in pretrial detention at Riker’s Island for over 1,000 days, with more than 700 days in solitary confinement.[1] For many, his questionable detention is reminiscent of the “The Angola 3”, three men who were held in solitary confinement for a combined total of more than 100 years for the killing of a prison guard at Louisiana State Penitentiary.[2] Even in 2013, a South Carolina inmate was sentenced to 13,680 days (37.5 years) in disciplinary detention for posting on Facebook 38 times.[3] Once again, we must bring to our attention what seems to be an unrestrained administration of solitary confinement in the United States and the rest of the world.

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Solitary confinement is defined as the physical isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day.[4] Although a popular tool of punishment, it has several negative psychological effects. In an interim report, the Special Rapporteur of the on Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, Juan E .Méndez drew attention to the widespread use and disadvantages of solitary confinement.[5] Symptoms include anxiety, depression, paranoia, and self-harm for those who had no history of mental illness. [6] In fact, suicides occur disproportionately more often in segregated units than elsewhere in prison.[7] For those who entered with mental illness, there can be an exacerbation of those symptoms. [8] Even post isolation, these symptoms can continue and affect social interactions because of lack of mental health services.[9] The lack of sustained social interaction can cause impairment in the human brain similar to a traumatic injury.[10] In December 2007, several experts and in psychology and law convened at the International Psychological Trauma Symposium to issue the Istanbul Statement on the Use and Effects of Solitary Confinement.[11] The joint statement also noted that the psychological pressure when used on purpose of isolation regimes can become coercive and can amount to torture, especially when the pressure pre-trial detainees to plead guilty. [12] Effort is required to raise the level of meaningful social contacts for prisoners, via psychologists, psychiatrists, religious prison personnel, or even family and friends, to decrease the harmful effects of solitary confinement.[13] The joint statement, along with many other rights advocacy groups, has encouraged the prohibition of solitary confinement for children under the age of 18, mentally ill prisoners, and death row or life-sentenced prisoners by virtue of their sentence.[14]

Torture has long been acknowledged as a jus cogens norm in international law, meaning that a State cannot derogate from the prohibition. In the context of international organs, prolonged solitary confinement (longer than 15 days) can amount to acts prohibited by article 7 of the International Covenant on Civil and Political Rights and torture as defined in article 1 if the Convention against Torture due to the severe adverse health effects and the possible irreversible psychological effects.[15] The Subcommittee on the Prevention of Torture has pointed out that solitary confinement should not be used in the case of minors or the mentally disabled.[16] The Committee on the Rights of the Child and the Committee on the Prevention of Torture have both urged states to abolish the use of solitary confinement, or at least use it only in exceptional circumstances under strict regulation.[17]

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Although the Convention on Torture has been widely ratified with 160+ state parties, including the United States, extended solitary confinement has been one that many countries seem to make excuses for. The primary justifications for solitary confinement usually fall under five general categories: to punish an individual; to protect vulnerable individuals; to facilitate prison management of certain individuals; to protect or promote national security; or to facilitate pre-charge or pre-trial investigations.[18]

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These justifications seem to seep into the perception of the public, especially those who are opposed to the death penalty. Ramzi Yousef, the man behind the World Trade Center bombing, was sentenced to 240 years plus life in solitary confinement in 1998.[19] Anders Bering Breivik, the right-wing extremist who killed 77 people in Norway, has been kept in solitary confinement since his 21 year sentence was handed down in 2012. This is notable, since Norway has signed and ratified the ICCPR, the Convention on Torture, and the European Convention on Human Rights, including Protocols 1 – 15.[20] Most people would not deny the danger these persons pose to the public but the conversation becomes murkier when the conversation of solitary confinement turns to immigrants or prisoners of war. With over an estimated 80,000 U.S. prisoners being kept in isolation,[21] there has to be a shift in dialogue to a more humane form of punishment that does not break the psyche. As of now, the imposition of solitary confinement is at the discretion of prison administrators[22], whose main concern is to maintain prison order. However, criminal recidivism has been occurring at a higher rate for those in solitary confinement,[23] which in general poses a greater risk to the public. It may be time to look at alternative methods of punishment or make it more of a policy issue that involves the legislature so that stories, such as the Kalief Browder story, stop themselves from replicating.

[1] https://www.yahoo.com/news/time-kalief-browder-story-review-185022084.html

[2] http://www.npr.org/2016/03/19/470828257/after-decades-in-solitary-last-of-the-angola-3-carry-on-their-struggle

[3] https://www.eff.org/deeplinks/2015/02/hundreds-south-carolina-inmates-sent-solitary-confinement-over-facebook

[4] http://solitaryconfinement.org/istanbul

[5] http://www.ohchr.org/EN/HRBodies/SP/Pages/GA66session.aspx

[6] Id.

[7] http://jaapl.org/content/38/1/104

[8] http://www.ohchr.org/EN/HRBodies/SP/Pages/GA66session.aspx

[9] Id.

[10] http://www.newyorker.com/magazine/2009/03/30/hellhole

[11] http://solitaryconfinement.org/istanbul

[12][12] Id.

[13] Id.

[14] Id. See also, http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Disability/A.63.175.doc&action=default&DefaultItemOpen=1; http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Publications/Slides/SlidesChapter8.pptx&action=default&DefaultItemOpen=1.

[15] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

[16]http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fOP%2fPRY%2f1%2fADD.1&Lang=en

[17] http://www.ohchr.org/EN/HRBodies/SP/Pages/GA66session.aspx

[18] Id.

[19] http://www.cnn.com/US/9801/09/solitary.confinement/index.html

[20] http://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/chartSignature/3; http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=129&Lang=EN

[21] http://www.bbc.com/news/world-europe-35813348

[22] http://www.newyorker.com/magazine/2009/03/30/hellhole

[23] http://solitarywatch.com/facts/faq/

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Author: Ius Gentium

Ius Gentium is a legal forum for the University of Baltimore School of Law's Center for International and Comparative Law Fellows to write on and discuss international and comparative legal issues.

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