Distr.
GENERAL

CAT/C/28/Add.5
9 February 2000

Original: ENGLISH

COMMITTEE AGAINST TORTURE

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION

Initial reports of States parties due in 1995

Addendum

UNITED STATES OF AMERICA

[15 October 1999]

CONTENTS

Introduction

I. GENERAL INFORMATION

A. Constitutional and legal framework

B. United States criminal justice system

C. Competent authorities and remedies

D. Treaties and the United States legal system

E. Information and publicity

F. Factors affecting implementation

G. Statistics

II. IMPLEMENTATION OF SPECIFIC ARTICLES

Articles 1 and 2. Definition and prohibition

Article 3. Non-refoulement

Article 4. Torture as a criminal offence

Article 5. Jurisdiction

Article 6 Detention and preliminary inquiry in cases
of extradition

Article 7. Extradite or prosecute

Article 8. Extraditable offences

Article 9. Mutual legal assistance

Article 10. Education and information

Article 11. Interrogation techniques

Article 12. Prompt and impartial investigation

Article 13. Right to complain

Article 14. Right of redress and/or compensation

Article 15. Coerced statements

Article 16. Other cruel, inhuman or degrading treatment
or punishment

List of annexes*

I. United States reservations, understandings and declarations and Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment

II. Relevant constitutional and legislative provisions

III. Information on capital punishment

IV. INS regulations on torture

V. Department of State regulations on torture

Introduction

1. The Government of the United States of America welcomes the opportunity to report to the Committee against Torture on measures giving effect to its undertakings under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in accordance with article 19 thereof. The organization of this initial report follows the revised General Guidelines of the Committee against Torture regarding the form and content of initial reports to be submitted by States parties (CAT/C/4/Rev.2).

2. This report has been prepared by the U.S. Department of State with extensive assistance from the Department of Justice and other relevant departments and agencies of the Federal Government. Substantial contributions were also solicited and received from interested non governmental organizations, academics and private citizens. The report covers the situation in the United States and the measures taken to give effect to the Convention through September 1999.

3. The United States ratified the Convention against Torture in October 1994, and the Convention entered into force for the United States on 20 November 1994. In its instrument of ratification (deposited with the Secretary General of the United Nations on 21 October 1994), the United States made a declaration pursuant to article 21, paragraph 1, recognizing the competence of the Committee against Torture, on a reciprocal basis, to receive and consider a State party’s claims that another State party is not fulfilling its obligations under the Convention. The United States also conditioned its ratification on two reservations and a number of interpretive understandings; these are included at annex I and discussed at the relevant portions of this report.

4. In 1992 the United States became a party to the International Covenant on Civil and Political Rights, some provisions of which may be considered to have wider application than those of the Convention against Torture. The initial United States report under the Covenant, which provides general information related to United States compliance with and implementation of obligations under the Covenant, was submitted to the Human Rights Committee in July 1994 (see HRI/CORE/1/Add.49 and CCPR/C/81/Add.4). The United States also ratified the International Convention on the Elimination of All Forms of Racial Discrimination at the same time as it ratified the Convention against Torture. In February 1995 the United States signed the Convention on the Rights of the Child.

5. The United States has long been a vigorous supporter of the international fight against torture. United States representatives participated actively in the formulation of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1975, and in the negotiation of the Convention against Torture. The United States continues to be the largest donor to the United Nations Voluntary Fund For Victims of Torture, having contributed over $12.6 million as of August 1999. The United States Government pursues allegations of torture by other governments as an integral part of its overall human rights policy, highlighting such issues in its annual Country Reports on Human Rights Conditions.

6. Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.

7. No Government, however, can claim a perfect record in each of the areas and obligations covered by the Convention. Abuses occur despite the best precautions and the strictest prohibitions. Within the United States, as indicated in this report, there continue to be areas of concern, contention and criticism. These include instances of police abuse, excessive use of force and even brutality, and death of prisoners in custody. Overcrowding in the prison system, physical and sexual abuse of inmates, and lack of adequate training and oversight for police and prison guards are also cause for concern. The national conscience was sharply challenged in 1991 by the widely publicized beating of Rodney King by four officers of the Los Angeles Police Department and by their subsequent prosecution by state and federal authorities. More recently, a Haitian immigrant, Abner Louima, was brutalized by New York City policemen after being taken into custody. Concerns about the excessive use of force by federal agents arose from widely publicized incidents in 1992 at Ruby Ridge, Idaho, and in 1993 in Waco, Texas; similar charges were levelled against the Philadelphia Police Department in connection with the May 1985 bombing of the headquarters of the radical African-American organization MOVE.

8. As a result of these and other instances, American society has renewed its efforts to ensure that appropriate guidelines on the use of force are respected and that the prohibitions against torture and other forms of physical, mental and psychological abuse by law enforcement and correctional officials are observed in practice. Indeed, in 1994 the United States Congress enacted important legislation which authorizes the Attorney-General to institute civil lawsuits to obtain remedies for patterns or practices of misconduct by law enforcement agencies and agencies responsible for the incarceration of juveniles. The Department of Justice is actively enforcing this statute, as well as older laws that permit criminal prosecution of law enforcement and correctional officers who wilfully deprive individuals of their constitutional rights, and statutes that enable the Department of Justice to obtain civil relief for abusive conditions in state prisons and local jails.

9. In addition, in the United States, some have voiced concerns related to other areas covered by or related to the Convention, such as non-consensual scientific and medical experimentation, treatment of the mentally ill and illegal immigrants in custody, and imposition of capital punishment. These and other issues are discussed in connection with article 16.

10. Every unit of Government at every level within the United States is committed, by law as well as by policy, to the protection of the individual’s life, liberty and physical integrity. Each must also ensure the prompt and thorough investigation of incidents when allegations of mistreatment and abuse are made, and the punishment of those who are found to have committed violations. Accomplishment of necessary reforms and improvements is a continued goal of government at all levels. The United States intends to use its commitments and obligations under the Convention to motivate and facilitate a continual review of the relevant policies, practices, and institutions in order to assure compliance with the treaty.

I. GENERAL INFORMATION

11. Torture does not occur in the United States except in aberrational situations and never as a matter of policy. When it does, it constitutes a serious criminal offence, subjecting the perpetrators to prosecution and entitling the victims to various remedies, including rehabilitation and compensation. Although there is no federal law criminalizing torture per se, any act falling within the Convention’s definition of torture is clearly illegal and prosecutable everywhere in the country, for example as an assault or battery, murder or manslaughter, kidnapping or abduction, false arrest or imprisonment, sexual abuse, or violation of civil rights.

A. Constitutional and legal framework

12. The United States of America is a federal republic of 50 states, together with a number of commonwealths, territories and possessions. The United States Constitution, including its various amendments, is the central instrument of government and the supreme law of the land. It establishes a representative system of democratic governance at the federal level and guarantees a republican system at the state and local levels.

13. The Federal Government consists of three separate branches: the Executive (the President and the various executive departments and agencies), the Legislative (the United States Congress, consisting of the Senate and the House of Representatives) and the Judiciary (an independent three-tiered system of courts headed by the U.S. Supreme Court). In the federal system, laws are enacted by the Congress, enforced by the Executive Branch through its various departments and agencies, and interpreted and applied by the judiciary.

14. Under the United States Constitution, the Federal Government is a government of limited authority and responsibility. Those powers not delegated to the Federal Government are specifically reserved to the states and the people. The resulting division of authority means that state and local governments retain significant responsibility in many areas. This allocation of governmental responsibility has particular relevance to certain aspects of the implementation of the Convention against Torture. For example, although there is a continually evolving and expanding body of federal criminal law and procedure, criminal law is still largely a matter of state competence, and the precise nomenclature, rules, procedures and punishments vary from state to state. However, in all states, as well as at the federal level and in the commonwealths and territories, criminal law and procedure must meet the minimum standards provided by the United States Constitution. All individuals, regardless of nationality or citizenship, are entitled to constitutional protection.

15. Each of the 50 constituent states has its own constitution as well, and the state governmental structures closely parallel that of the Federal Government with separate executive, legislative and judicial branches. Essentially, each state is a sovereign entity, inherently free to promulgate and enforce laws and policies that pertain exclusively to that state. State authority is limited under the federal Constitution only to the extent that the relevant authority has been delegated to (or “pre-empted” by) the Federal Government. Thus, in addition to the adoption and enforcement of general criminal law, the power of state government extends to nearly all aspects of the regulation of matters internal to the state, such as the establishment and maintenance of state courts, prisons and correctional institutions; the regulation of industries, businesses, professions, and commerce; educational institutions; regulation of property; and so forth.

16. Each state consists in turn of many subordinate governmental entities, including counties (or parishes), various forms of municipal jurisdictions (cities, towns, townships, villages, boroughs, etc.), and other types of governmental units (such as water, school, housing and fire districts). In some instances, state and local governments have created regional authorities, for such purposes as economic development or resource management. Nationwide there are some 87,000 local governmental units, including approximately 3,000 counties, 3,500 towns and municipalities, and 15,000 school districts. Nine cities have populations in excess of 1 million persons; over 65 cities exceed 250,000 persons. Many of these subordinate units exercise, in one fashion or another, a measure of the regulatory or “police power” of the state, including in its criminal, enforcement or custodial dimensions.

17. The same is true of other governmental levels which exist independently of the constituent states: the District of Columbia (seat of the Federal Government); the commonwealths of Puerto Rico and the Northern Mariana Islands; and the unincorporated territories of American Samoa, the United States Virgin Islands, and Guam. While the specific governmental arrangements differ, in each case duly constituted local authorities in fact exercise criminal law enforcement authority and jurisdiction on a local basis.

18. This complicated federal structure both decentralizes police and other governmental authority and constrains the ability of the Federal Government to affect the law of the constituent jurisdictions directly. Although torture and cruel, unusual or inhuman treatment or punishment are prohibited in every jurisdiction, not every instance in which such acts might occur is directly subject to federal control or responsibility.

19. For this reason it was considered necessary to condition United States ratification of the Convention against Torture upon an understanding reflecting the respective competencies of the various governmental units in regard to certain provisions of the Convention. The understanding (full text at annex I) states that United States obligations under the Convention shall be implemented by the Federal Government to the extent of its legislative and judicial jurisdiction, and otherwise by the state and local governments. With respect to those provisions which most significantly implicate state and local authority (arts. 10-14 and 16), the Federal Government expressly committed itself to taking measures “appropriate to the Federal system” so that, in turn, the competent authorities of the constituent units “may take appropriate measures for the fulfilment of the Convention”. The intent was to make clear that steps by the Federal Government that are necessary to effect compliance at the state and local level will be consistent with the federal structure of the domestic governmental arrangements.

20. It is important to emphasize that the “federalism” understanding does not detract from or limit the substantive obligations of the United States under the Convention, nor does it exempt any state or local officials from the Convention’s requirements regarding the prohibition, prevention and punishment of torture or cruel, inhuman or degrading treatment or punishment. It is also important to recognize that the fundamental constitutional protections, including in particular the prohibition against cruel and unusual punishment, operate as restrictions at all levels of the government; all persons in the United States, regardless of their status, receive constitutional protection, in particular the protection against cruel and unusual punishment.

21. In the United States, the rights of individuals, including those of detainees and convicted inmates, are protected by the rule of law. Government officials generally respect and act in accord with the relevant standards. When they do not, an independent judiciary can enforce those rules against them. In the following discussion, this is reflected through frequent citation to judicial decisions as well as statutes.

B. United States criminal justice system

22. The enactment and enforcement of criminal law remains primarily a function of state and local governments in the United States. In fact, the emphasis in the United States has traditionally been on local law enforcement. Despite a growing body of federal law and an expanded role for federal law enforcement agencies (especially the Federal Bureau of Investigation or “FBI”), the majority of offences proscribed by law, the vast preponderance of crimes committed, and the overwhelming bulk of criminal prosecutions in the United States remain matters of state and local law and institutions. Local control helps to ensure that the criminal justice system is (and is perceived to be) responsive to the concerns of the affected population; it also permits states and localities to experiment with new approaches to criminal justice issues. Local experiences have proven to be one of the great strengths of the United States system; at the same time, the United States Constitution and federal laws (including treaties) provide clear and effective constraints throughout the country, so that local experimentation does not infringe fundamental rights. These factors also add rich diversity and complexity to the United States criminal justice system.

23. Federal. At the federal level, the only crimes which the United States Congress is expressly authorized by the Constitution to punish are piracies, felonies on the high seas, offences against the law of nations, treason, and counterfeiting of the securities and current coin of the United States (art. I, sec. 8, cl. 10; art. I, sec. 8, cl. 5 and 6; art. III, sec. 6). Nonetheless it has long been recognized that criminal legislation may be based in the Commerce Clause, art. I, sec. 8, cl. 3, and that Congress has inherent power to create, define and punish other crimes whenever necessary to carrying out the responsibilities of Government (art. I, sec. 8., cl. 18). See, e.g., Brooks v. United States, 267 United States 432 (1925); United States v. Fox, 95 U. S. 670 (1878).

24. Those crimes are set forth primarily in Part I of Title 18 of the United States Code. They define as federal offences a range of illegal acts which pertain to functions uniquely within the purview of the Federal Government (e.g., counterfeiting and forgery, customs, espionage, mail or wire fraud, passports and visas), which occur on or against federal property or against federal officials or employees in the conduct of their official duties (e.g., bribery, graft, fraud, obstruction of justice, assault, killing), or which are of special federal concern (e.g., aircraft hijacking and sabotage, firearms and explosives, gambling, terrorism, piracy, kidnapping, sexual exploitation of children). Some federal crimes are specified elsewhere in the United States Code (e.g., those concerning food and drug offences, monetary transactions, offences under the Internal Revenue Code). The rules governing criminal procedure at the federal level are also set forth in Title 18 as well as Title 28 and in the Federal Rules of Criminal Procedure. A separate chapter of Title 18 governs international extradition.

25. Criminal law enforcement and crime prevention programmes at the federal level are primarily the responsibility of the Attorney-General of the United States and the U.S. Department of Justice, which she directs. The Attorney-General is also responsible for coordination and implementation of the Federal Government’s sizeable programmes of assistance to state and local law enforcement authorities.

26. There is no single national police force and no law enforcement agency with universal jurisdiction in the United States. Some 50 separate law enforcement agencies exist at the federal level, employing approximately 69,000 officers or special agents authorized to carry firearms and make arrests. The United States Government’s principal criminal investigative agency is the FBI. Its jurisdiction extends to all violations of federal law except those specifically assigned to another federal agency. Several other investigative and law enforcement agencies are also found within the Department of Justice, including the Drug Enforcement Administration, the U.S. Marshals Service, the Federal Bureau of Prisons, and (within the Immigration and Naturalization Service) the Border Patrol. Within the Treasury Department are the Secret Service, the Bureau of Alcohol, Tobacco and Firearms, the Customs Service, and the enforcement arm of the Internal Revenue Service. The Department of the Interior oversees the National Park Service, including the U.S. Park Police, and the enforcement officers of the Fish and Wildlife Service. Law enforcement powers are also exercised by the Federal Protective Service (within the General Services Administration), the Postal Inspection Services, the U.S. Capitol Police and the Diplomatic Security Service of the U.S. Department of State among others. In addition, each of the military departments has criminal investigation organizations.

27. Criminal prosecutions under federal law are generally initiated and directed by the offices of the 93 United States Attorneys, which function as the regional representatives of the Justice Department throughout the country. In some cases, the responsibility may be exercised by officials from the Criminal or other Divisions of the main Justice Department in Washington, D.C.

28. Criminal cases are tried before the 94 federal courts of original jurisdiction (called U.S. District Courts) pursuant to federal rules of evidence and criminal procedure. The right to a jury trial in all criminal prosecutions is guaranteed by the Sixth Amendment to the United States Constitution. Imposition of sentence upon those found guilty is a function of the courts. The U.S. Marshals Service is responsible for providing support and protection to the federal courts, including the protection, custody and transport of federal prisoners and the apprehension of federal fugitives.

29. Individuals convicted of federal crimes are sentenced to the custody of the United States Attorney-General. The Federal Bureau of Prisons, which exercises responsibility over these convicted persons, operates 94 correctional facilities throughout the nation, including 10 penitentiaries, 54 correctional institutions, and 15 prison camps. Where individual prisoners

are placed depends upon the severity of their offences, their criminal history, and any special needs or requirements. As of July 1999, approximately 117,331 adults were incarcerated in Federal Bureau of Prison facilities.

30. Federal prisoners may also be sentenced directly to privately-owned community corrections centres, also known as “half-way houses”. These facilities are usually owned and administered by private, non-profit service organizations (such as the Salvation Army, religious organizations, etc.) under contract to the Department of Justice. Such facilities are administered by professional staff and are monitored by the Federal Bureau of Prisons, which provides training and inspects the facilities to ensure compliance with federal regulations.

31. The U.S. Parole Commission is responsible for the granting, denial and revocation of parole for federal offenders. The Office of the Pardon Attorney, in consultation with the Attorney-General, assists the President in exercising his authority to grant executive clemency in accordance with article 2, section 2 of the United States Constitution. Federal prisoners whose crimes were committed after November 1987 must by law serve at least 85 per cent of their sentences (except that federal life sentences must be served in full).

32. Each of the commonwealths and territories, as well as the District of Columbia, employs its own law enforcement (police and investigative) forces. Criminal jurisdiction is vested in an appropriate federal District Court, except in the District of Columbia, which operates its own criminal justice system for minor offences (more serious offences - felonies - are tried in the U.S. District Court).

33. State and local. The 50 constituent states of the Union retain broad authority to regulate public health, safety, morals and welfare within their respective jurisdictions, including through the exercise of criminal law. Unlike the Federal Government, they need not base the exercise of such authority in a specific provision of the federal Constitution but derive their powers from their own constitutions and statutes. All must nonetheless comply with the relevant rights and protections accorded individuals under the United States Constitution.

34. Enforcement of state law is the responsibility of the state Attorney-General under the direction of the Governor. Most criminal prosecutions, however, are in fact initiated and pursued by public prosecutors at the county or municipal level, in state or local courts. Prosecutors may be elected or appointed, depending on local practice. At all levels, prosecutors in the United States enjoy a high degree of independence in the discharge of their responsibilities.

35. While each state (except Hawaii) maintains some form of state wide law enforcement body (the majority denominated as highway patrol agencies, others as “state police”), these authorities in fact exercise relatively limited jurisdiction. Virtually all of the 3,000 or so county governments have their own independent police forces, typically directed by an elected sheriff. There are also thousands of separate city, town and other local law enforcement agencies; nearly three quarters of the 650,000 full time police employees in the United States work for municipal police agencies. All told, some 15,000 separate city, county and state law enforcement agencies exist in the United States. Most local police departments are small; over 90 per cent employ fewer than 50 sworn officers, and approximately half have fewer than 10.

36. None of these law enforcement agencies operates in precisely the same manner. They perform a variety of functions, from crime prevention and investigation to arrest and detention of suspects, custodial and correctional duties for convicted offenders, to probation, parole and pardon. The large number of institutions, personnel, governmental units and other structures involved in the United States criminal justice system makes it difficult to assure that all correctional and police officers and staff are given similar training, for example in the area of human rights. However, the availability of the courts and the large number of lawyers throughout the United States help to assure some degree of consistency in protecting human rights at all levels.

37. Prosecution of state and local crimes generally takes place before a state court of general jurisdiction. In some states, a separate system of criminal appeals exists. Some cities operate separate criminal courts. In every case, convicted offenders enjoy a right to seek review by the highest state court; in many cases, there also exists a right to seek a discretionary grant of review from the U.S. Supreme Court. In certain circumstances, state and local criminal cases may also be taken before federal courts through a writ of habeas corpus. In all cases, however, individuals have access to federal courts to vindicate their rights under the United States Constitution. Most states have parole boards to decide whether and when a prisoner may be released before the expiration of his or her sentence (e.g., taking account of good behaviour and special achievements). On the average, state prisoners serve approximately 41 per cent of their sentences.

38. State prisons are normally operated by state correctional agencies, reporting to the state Governor or Attorney-General. In some cases they are part of the health and human services division or the law enforcement division of the state government. Nationally, there are some 1,375 state operated penal institutions (including prisons, prison hospitals, half way houses, and work release centres).

39. At the regional, county and local levels, jails and other short-term detention centres are supervised by the county or local governments where they are located. These facilities (approximately 3,300 nationally) are generally used to confine persons upon arrest, pending arraignment and trial, conviction and sentencing. Most are small; according to a 1988 survey, two thirds of the local jails had daily populations of fewer than 50 inmates. County jails, as well as county governments, are ultimately responsible to their respective state governments. In six states the jail and prison systems are combined. In some large metropolitan areas, municipal or city governments may also exercise correctional authority, subject to state and federal law. Many states have systems of jail inspections to ensure that these local facilities are operated in conformity with state standards. Some jurisdictions have undertaken “privatization” of prisons, subject to state supervision and control.

40. The American Correctional Association, a private non profit organization, administers a voluntary accreditation scheme for prisons in the United States and Canada based on standards considered essential to good correctional management. The Federal Bureau of Prisons voluntarily complies with these standards.

41. Military. The Congress of the United States established a separate system of military justice for members of the United States armed forces. Service members on active duty are subject to the Uniform Code of Military Justice (UCMJ), a comprehensive criminal code and set of procedures established in 1950 and found in Title 10 of the United States Code. Cases of alleged criminal conduct covered by the UCMJ are investigated and, when substantiated, resolved in an appropriate manner, ranging from non judicial punishment to one of three types of courts martial (summary, special or general). Military jurisdiction over the criminal conduct of its members extends to acts committed on or off the military installation, regardless of whether the member is on or off duty, and regardless of where in the world the offence takes place. With respect to their non military activities, active duty service members are subject to ordinary United States criminal law and courts. The military justice system does not extend to civilians with a few narrow exceptions (e.g., civilians serving with the armed forces in the field overseas in time of war).

42. In a trial by court martial, the accused service member is accorded the full range of constitutional rights, including representation by a qualified defence counsel at no charge to the individual. Any court martial that results in a sentence of confinement for a year or more, in discharge from the service or in capital punishment is automatically reviewed by the Service’s Court of Criminal Appeals. Those courts, which are composed of senior military attorneys assigned full time as appellate court judges, examine the records of trial for both factual and legal error. Decisions can be appealed to the United States Court of Appeals for the Armed Forces, on which five civilian judges sit. Adverse decisions can be reviewed further by the U.S. Supreme Court on a discretionary basis.

43. In fiscal year 1995 (1 October 1994 to 30 September 1995), the military Services (Army, Air Force, Navy, Marine Corps and Coast Guard) conducted 1,949 general courts martial, 3,307 special courts martial, 1,786 summary courts martial, and 75,444 non judicial punishment actions.

44. Separate correctional facilities and programmes are operated by the military services subject to uniform rules and policies established by the Department of Defense (DoD). Pursuant to DoD Directives, commanding officers of confinement facilities are only authorized to impose one or more of the following administrative disciplinary measures for prisoner misconduct: reprimand or warning; deprivation of one or more privileges; extra duties; reduction in custody grade or classification; segregation on regular or restricted diet after medical clearance; or forfeiture or suspension of earned good time. Members of the military who have been deprived of their liberty are required to be treated humanely and with respect for their dignity and in a structured behavioural environment, the fundamental goals of which are reformation and rehabilitation.

C. Competent authorities and remedies

45. There is in the United States no single statute, authority or mechanism by which basic human rights and fundamental freedoms are guaranteed or enforced. Instead, the essential protection of human rights and fundamental freedoms is afforded by the various guarantees set forth in the federal Constitution and statutes as well as in the constitutions, statutes and law of the several states and other constituent units. Responsible authorities thus include executive branch officials, those with administrative authority, legislators and judges, among others. This

diffuse structure provides extensive legal protections and a wide variety of enforcement and remedial possibilities, ranging from criminal law enforcement, civil damage suits, and administrative measures.

46. In consequence, responsibility for the protection and promotion of fundamental freedoms, including freedom from torture, is shared by the various branches of government at all levels. In the Federal Government, the President is responsible for enforcing the law. His chief assistant in this task is the Attorney General. Within the Department of Justice, the Civil Rights Division bears principal responsibility for the effective enforcement of federal civil rights laws, the Criminal Division and regional U.S. Attorneys Offices for prosecuting most federal crimes, and the Bureau of Prisons for the oversight and management of federal correctional institutions. At the state level, the elected Governor and/or Attorney General may share responsibility with an independent human rights commission; many local jurisdictions, including most large cities, also have such bodies. At all levels, an independent judiciary exists to guarantee fundamental rights, including freedom from torture, cruel and unusual punishment, equal protection and due process, and a fair trial. Finally, the large and active community of non governmental organizations in the United States works constantly to ensure that abuses that occur are brought to light and that government is responsive to the will of the people. A strong and independent press (including print and electronic media) serves an important role in this regard.

47. In 1994, Congress enacted a new federal law to implement the requirements of the Convention against Torture relating to acts of torture committed outside United States territory. This law, which is codified at 18 U.S.C. § 2340 et seq., extends United States criminal jurisdiction over any act of (or attempt to commit) torture outside the United States by a United States national or by an alleged offender present in the United States regardless of his or her nationality. The statute adopts the Convention’s definition of torture, consistent with the terms of United States ratification. It permits the criminal prosecution of alleged torturers in federal courts in specified circumstances.

48. Any act falling within the Convention’s definition is clearly illegal and prosecutable everywhere in the country. Because existing criminal law was determined to be adequate to fulfil the Convention’s prohibitory obligations, and in deference to the federal state relationship, it was decided at the time of ratification not to propose enactment of an omnibus implementing statute for the Convention or to adopt a single federal crime of torture.

49. Torture has always been proscribed by the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishments”. This Amendment is directly applicable to actions of the Federal Government and, through the Fourteenth Amendment, to those of the constituent states. See Robinson v. California, 370 U.S. 660, reh’g den. 371 U.S. 905 (1962); Estelle v. Gamble, 429 U.S. 97 (1976). While the constitutional and statutory law of the individual states in some cases offers more extensive or more specific protections, the protections of the right to life and liberty, personal freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the United States Constitution provide a nationwide standard of treatment beneath which no governmental entity may fall. The constitutional nature of this protection means that it applies to the actions of officials throughout the United States at all levels of government; all individuals enjoy protection under the Constitution, regardless of nationality or citizenship.
50. Every state constitution also contains detailed guarantees of individual liberties, in most cases paralleling the protections set forth in the federal bill of rights. For example, nearly all state constitutions expressly forbid cruel and unusual punishment (including acts constituting “torture”) and guarantee due process protections no less stringent than those in the federal Constitution. The constitutions of 33 states also contain specific protections against unreasonable searches and seizures; only two state constitutions lack explicit protection against self incrimination in criminal cases; and only five lack double jeopardy clauses. Even in such cases, however, defendants are not deprived of the protections afforded by the federal Constitution: United States constitutional protections are applicable throughout the United States, and the constitutional due process provision is broadly construed by the courts. In some cases, state law guarantees rights not explicitly recognized by the federal Constitution (such as privacy, education or access to courts), the protections afforded by state law sometimes exceeds those required by the federal Constitution.

51. Remedies. United States law provides various avenues for seeking redress, including financial compensation in cases of torture and other violations of constitutional and statutory rights relevant to the Convention. Besides the general rights of appeal, these can include any of the following, depending on the circumstances:

• Seeking a writ of habeas corpus, which guarantees judicial review of the reasons for and conditions of detention and ensures that a person who believes his or her detention violates constitutionally protected rights has access to an independent and impartial court for a determination of its propriety;
• Filing criminal charges, which can lead to investigation and possible prosecution;

• Bringing a civil action in federal or state court under the federal civil rights statute, 42 U.S.C. § 1983, directly against state or local officials for money damages or injunctive relief;

• Seeking damages for negligence of federal officials and for negligence and intentional torts of federal law enforcement officers under the Federal Tort Claims Act, 22 U.S.C. § 2671 et seq., or of other state and municipal officials under comparable state statutes;

• Suing federal officials directly under provisions of the United States Constitution for “constitutional torts”, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v. Passman, 442 U.S. 228 (1979);

• Challenging official action or inaction through judicial procedures in state courts and under state law, based in statutory or constitutional provisions;

• Seeking civil damages from participants in conspiracies to deny civil rights under 42 U.S.C. § 1985;

• Bringing civil suits for damages based on international legal prohibitions against torture under the Alien Tort Claims Act, and the Torture Victims Protection Act, 28 U.S.C. § 1350, and note;

• Pursuing administrative remedies, including proceedings before civilian complaints review boards, for the review of alleged police misconduct;

• The Federal Government may institute civil proceedings under the Pattern or Practice of Police Misconduct Provision of the Crime Bill of 1994, 42 U.S.C. § 14141, to eliminate patterns or practices of misconduct by law enforcement agencies and their parent organizations. Similarly, the Federal Government may institute administrative and civil proceedings against law enforcement agencies receiving federal funds who discriminate on the basis of race, sex, national origin, or religion;

• Individuals may bring administrative actions and civil suits against law enforcement agencies receiving federal funding that discriminate on the basis of race, sex, national origin, or religion, under the federal civil rights laws. See 42 U.S.C. § 2000d (Title VI) and 42 U.S.C. § 3789d (Safe Streets Act);

• In the case of persons in detention, the Federal Government may institute proceedings under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, to eliminate a pattern or practice of abuse in any state prison, jail or detention facility.

52. Illustrative cases. Within the Federal Government, the Civil Rights Division of the Department of Justice is the primary institution responsible for enforcing federal civil rights statutes. While its duties are much broader, the Division, and in particular its Criminal Section, does investigate and prosecute incidents of misconduct of local, state and federal law enforcement officials. The Criminal Section receives some 8,000 10,000 complaints annually, conducts or coordinates some 3,000 investigations, and files charges in 40 50 criminal cases. Allegations of official misconduct constitute the majority of all complaints reviewed by the Section. In addition, the Special Litigation Section investigates and brings civil actions to eliminate patterns or practices of law enforcement misconduct. The Section is currently investigating complaints against a number of police departments and sheriff’s offices and has filed civil suits resulting in court enforceable agreements to eliminate systemic misconduct with several law enforcement agencies.

53. Examples of recent activity relevant to the prohibition of torture and cruel, inhuman or degrading treatment under the Convention against Torture include the following:

• In January 1995, a sheriff in Gulf County, Florida was convicted of using his position to coerce five female inmates to engage in sexual acts with him. United States v. Harrison, N.D.Fla.

• In June 1996, a foreman at the Federal Correctional Institute in Danbury, Connecticut was charged with engaging in a long term sexual relationship with an inmate; that employee was subsequently convicted of sexual abuse of a ward under 18 U.S.C. § 2243(b).

• In February 1997, the former warden of the Pearl River County jail pleaded guilty to sexually abusing women prisoners in his custody.

• In April 1996, a New Orleans, Louisiana police officer and two other individuals were convicted of conspiring to murder a woman who witnessed the police officer beating a young man. The day after she reported the beating incident to the police department’s Internal Affairs Division, the woman was shot to death while standing on a street corner. The police officer and one civilian defendant were convicted. United States v. Davis, E.D.La.

• In Texas, a Galveston police officer was sentenced to 15 years in prison after being convicted of repeatedly coercing women into engaging in sexual acts by threatening them with jail or physical harm. United States v. Sanchez, S.D. Texas, 1994.

• A Bureau of Indian Affairs officer was sentenced to 30 months in prison after pleading guilty to raping a young Indian woman when she was being detained at a BIA detention facility in Arizona. United States v. Wescogame, D. Arizona, 1993.

• In March and May 1999, the Department of Justice settled lawsuits against the States of Arizona and Michigan that were brought under the Civil Rights of Institutionalized Persons Act of 1980; the lawsuits alleged that female inmates in Arizona and Michigan prisons were being subjected to improper sexual conduct by correctional officers, including rape, sexual assault, and unlawful invasion of privacy.

• Eleven correctional officers at a Mississippi state penitentiary were charged in April 1994 in the beating of an escaped inmate when he was recaptured and handcuffed. The inmate was kicked a dozen times, thrown into the back of a pick up truck and hit several times in the head, face and shoulder with guns. He suffered several lacerations and a severed artery. Six of the defendants pled guilty. The trial of the remaining five defendants resulted in two convictions and three acquittals.

• In May 1995, a former INS detention enforcement officer at the INS’s Krome Processing Service Center pleaded guilty to beating a detainee. The detainee had been knocked unconscious and received lacerations to his face as well as bruises to his stomach. United States v. Calejo, S.D.Fla.

• In August 1997, four New York City police officers were charged with brutalizing Abner Louima, a Haitian immigrant, in Brooklyn. Two were accused of beating the victim on the way to the station house following his arrest during a scuffle outside a Flatbush nightclub; the other two were accused of assaulting him with a toilet plunger in the station house bathroom. Initially charged under state sexual abuse and assault laws, the latter were subsequently prosecuted under federal civil rights law, which permits a more severe punishment. All were suspended from duty. To date, one officer has pleaded guilty to beating and sodomizing Louima, and another was convicted of conspiracy to sodomize and of civil rights violations. Two additional officers are awaiting trial on obstruction of justice charges.

• In May 1991, members of the Los Angeles Police Department were videotaped beating a motorist, Rodney King, who had been detained for a traffic violation and was alleged to be resisting arrest. Many said the incident exemplified the use of excessive force by police against black and Latino citizens. Following the acquittal of four officers in a Los Angeles county court on state charges, two of the four were convicted in a federal prosecution of criminal violations of the victim’s civil rights. The victim has also obtained a court award of civil damages and compensation.

• In April 1997, a Federal District Court entered a consent decree between the United States and the City of Pittsburgh and the Pittsburgh Bureau of Police resolving the United States’ allegations that the Police Bureau had engaged in a pattern or practice of using excessive force and had conducted improper searches and seizures. The consent decree requires the Bureau to institute comprehensive reforms in police supervision, training, discipline, and the manner in which it investigates public complaints of police misconduct.

• A similar consent decree was entered in Federal District Court in September 1997 between the Federal Government and the City of Steubenville, Ohio, and the Steubenville Police Department resolving allegations that the Police Department had been engaged in a pattern or practice of using excessive force and engaging in improper searches and seizures.

• In June 1996, the United States entered a settlement agreement with the Iberia Parish, Louisiana Sheriff’s Department, requiring the department to cease using inhumane restraint techniques on detainees.

• Prisoners at the D.C. Department of Corrections Occoquan Facility, part of Lorton Prison, filed a class action challenge in federal court regarding the conditions of their confinement. Following a trial in 1989, the court ruled in their favour, describing the prison as dangerously understaffed. In December 1995 the situation had grown still worse, prompting an additional judicial finding that the prison was suffering from a “non functional disciplinary system”, rampant drug use and weapons possession, violence against both staff and prisoners, and other conditions requiring the appointment of specially appointed officers to address the prevailing “culture of violence and inmate control”.

• In July 1998 the Department of Justice notified the City of Columbus, Ohio of its intent to file a civil lawsuit alleging that the Columbus police are engaging in a pattern or practice of excessive force, false arrests, and improper searches and seizures; the Department and the city currently are conducting pre suit settlement negotiations. Similarly, in April 1999 the Department of Justice notified the State of New Jersey of its intent to file a civil suit alleging that State Police officers are engaging in a pattern or practice of conducting discriminatory traffic stops; the Department and the State are currently conducting pre suit settlement negotiations.

• In March 1998 the United States entered into a comprehensive settlement agreement with the State of Georgia to resolve the United States’ investigation of unlawful conditions of confinement at 31 juvenile correctional facilities in the State. The settlement requires the State to develop and implement remedial plans in numerous areas, including protection from harm, medical care, and mental health care. In December 1997 the United States similarly entered into a consent decree with the Commonwealth of Puerto Rico to resolve the United States’ lawsuit challenging conditions of confinement in 20 juvenile facilities in Puerto Rico. In November 1998 the United States filed suit against the State of Louisiana concerning four juvenile facilities in that state, and interim, partial agreements with the state have been reached.

• In the past several years, the United States has entered into consent decrees and settlements to obtain remedies for deficient conditions at numerous other prisons and local jails around the country, including a Montana State men’s prison; facilities in the Territory of Guam and the Commonwealth of the Northern Mariana Islands; and jails in Maricopa County (Phoenix) and Gila County, Arizona, and Clay County and Dooly County, Georgia.

D. Treaties and the United States legal system

54. In addition to the Convention against Torture, the United States is party to a number of treaties concerning the protection of human rights. In 1992 the United States adhered to the International Covenant on Civil and Political Rights, article 7 of which sets forth the basic protection of all against torture and other cruel, inhuman or degrading treatment or punishment. The United States has also ratified the Convention on the Elimination of All Forms of Racial Discrimination and has signed the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.

55. Under article VI, cl. 2, of the United States Constitution, duly ratified treaties become part of the “Supreme Law of the Land”, equivalent in legal stature to enacted federal statutes. Accordingly, to the extent of any inconsistency, they may displace previously adopted state and federal law and may be displaced by subsequently adopted federal law. Where they touch on matters previously within the purview of state and local government, they may also serve to “federalize” the issue, thus affecting the allocation of authority between the states and the central government.

56. In United States practice, provisions of a treaty may be denominated “non self executing”, in which case they may not be invoked or relied upon as a cause of action by private parties in litigation. Only those treaties denominated as “self executing” may be directly applied or enforced by the judiciary when asserted by private parties in the absence of implementing legislation. This distinction derives from the U.S. Supreme Court’s interpretation of article VI, cl. 2, of the Constitution. See Foster v. Neilson, 27 Pet. 253, 314 (1829). The distinction is one of domestic law only; in either case, the treaty remains binding on the United States as a matter of international law.

57. Even where a treaty is “non self executing”, courts may nonetheless take notice of the obligations of the United States thereunder in an appropriate case and may refer to the principles and objectives thereof, as well as to the stated policy reasons for ratification. See, e.g., Sale v. Haitian Centers Council, 509 U.S. 155 (1994).

58. Generally, when necessary to carry out its treaty obligations, and in particular when existing domestic law must be conformed to the requirements of the treaty, the United States will, as a matter of domestic procedure, enact implementing legislation. This was the case, for example, with the Genocide Convention (for which implementing legislation is codified at 18 U.S.C. §§ 1091 93). Where domestic law already makes adequate provision for the requirements of the treaty and is sufficient to enable the United States to meet its international obligations, the United States does not generally believe it necessary to adopt implementing legislation.

59. In the case of the Convention against Torture, as noted above, implementing legislation was adopted with respect to the obligations imposed by article 5 concerning jurisdiction over extraterritorial acts of torture by United States citizens and by others “found” in the United States whom it does not extradite. In addition, the obligations of article 3 (“non refoulement”) have been effectively implemented through federal administrative process and procedure and regulations. See 22 C.F.R. Parts 3, 103, 208, 235, 238, 240, 241 and 253, reprinted in 64 Federal Register 33 at 8478 8496 (19 February 1999) (INS regulations); 22 C.F.R. Part 95, reprinted in 64 Federal Register 38 at 9435 9437 (26 February 1999) (Department of State regulations).

60. Non self executing declaration. More generally, however, the United States considered existing law to be adequate to its obligations under the Convention and determined that it would not be appropriate to establish a new federal cause of action, or to “federalize” existing state protections, through adoption of omnibus implementing legislation. For those reasons, in its instrument of ratification, the United States declared the substantive provisions of the Convention (arts. 1 16) to be “non self executing”. Thus, as a matter of domestic law, the treaty in and of itself does not accord individuals a right to seek judicial enforcement of its provisions. However, this declaration in no way limits or circumscribes the international obligations of the United States under the Convention.

61. Judicial reference to the Convention. The Convention against Torture has been cited and referenced in a number of federal judicial proceedings to date, including, inter alia, the following decisions: Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (suit by expatriate Guatemalans against the former Minister of Defense of Guatemala under the Alien Tort Claims Act and Torture Victims Protection Act); Kadic v. Karazdic, 70 F.3d 232 (2d Cir. 1995) (suit by Bosnians against the self proclaimed president of Bosnia Herzegovina for torture, genocide and other crimes under TVPA and ATCA); Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992) (suit by Argentinian family against the Government of Argentina for torture); In Re Estate of Ferdinand E. Marcos, 25 F.3rd 1467 (9th Cir. 1994), see also 94 F.3d 539 Cir. 1996) (suit under ACTA against former Philippine President Marcos alleging torture and other cruel, inhuman and degrading treatment); Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767 (9th Cir. 1996) (also suit against former President Marcos under ATCA); In Re Extradition of John Cheung, 968 F. Supp. 791 (D. Conn. 1997) (application of non refoulement provision of the Convention against Torture to extradition request from Hong Kong). See also U.S. v. Ekwunoh, 888 F. Supp. 369 (E.D.N.Y. 1994).

62. A number of federal courts have also recognized that the right to be free from torture and cruel, inhuman or degrading treatment or punishment is an accepted norm of customary

international law. See Abebe Jira v. Negero, 72 F.3d 844 (11th Cir. 1996), cert. denied, 519 U.S. 830, 117 S.Ct. 961 (1996); Najarro de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385 (5th Cir. 1985); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).

63. In many of these cases, United States courts looked to the Convention for guidance in determining whether there exists a customary international legal norm which prohibits torture and cruel, inhuman or degrading treatment or punishment. Although it is not self executing, the Convention was viewed by these courts as illustrative of the general agreement among states that such practices are unlawful. Thus, the Convention has played a significant role in the development of international human rights law in United States courts.

E. Information and publicity

64. As a general matter, people in the United States are keenly aware of and assertive about their rights. Students at all levels of the educational system receive extensive instruction in, and exposure to, fundamental civil and political rights, including those relevant to the prohibition and prevention of torture and cruel, inhuman or degrading treatment or punishment. The scope, meaning and enforcement of individual rights are constantly discussed in the media, openly and vibrantly debated within the legislatures by political parties, and litigated before the courts at all levels.

65. Information about human rights treaties is freely and readily available to any interested person in the United States. The constitutional requirement that the U.S. Senate give its advice and consent to ratification of treaties ensures that there is a public record of its consideration, typically on the basis of a formal transmittal by the President, a record of the Senate Foreign Relations Committee’s public hearing and the Committee’s report to the full Senate, together with the action of the Senate itself. Moreover, the text of any such treaty, whether or not the United States is a party, can be readily obtained from any number of sources.

66. In the case of the Convention against Torture, the record of its consideration is set forth in several official documents, including, inter alia, the Message from the President transmitting the Convention to the Senate, dated 20 May 1988 (Sen. Treaty Doc. 100 20); the printed record of the public hearings before the Senate Foreign Relations Committee on 30 January 1990 (S. Hrg. 101 718); the Report and Recommendation of the Senate Foreign Relations Committee, dated 30 August 1990 (Exec. Report 101 30); and the record of consideration on the floor of the Senate on 27 October 1990, printed at Cong. Rec. S14486 (daily ed.).

67. At the hearing before the Senate Foreign Relations Committee, representatives of various non governmental organizations involved in human rights, as well as concerned academics and legal practitioners, appeared to testify in person or submitted written comments for consideration by the Committee and inclusion in its formal records. The Administration was represented by the Departments of Justice and State.

68. As part of a programme to increase public awareness of human rights obligations throughout the country, this report is being published and made available to the public through the Government Printing Office and the depositary library system. In addition, copies of the report and the Convention are being widely distributed within the executive branch of the United States Government and to federal judicial authorities, as well as to relevant state officials, state and local bar associations and non governmental human rights organizations. Further, a copy of this report will be posted on the U.S. Department of State web page: <http://www.state.gov>.

69. Copies of the Convention have been provided to the Attorneys General of the 50 states and of the other constituent units of the United States, with a request that it be further distributed to local officials within their respective jurisdictions.

F. Factors affecting implementation

70. The United States Government acknowledges continuing allegations of specific types of abuse and ill treatment in particular cases, the existence of areas of concern in the context of the criminal justice system, and obstacles to full achievement of the goals and objectives of the Convention. These include allegations and instances (and in some cases even patterns or practices) of:

• police abuse, brutality and unnecessary or excessive use of force, including inappropriate use of devices and techniques such as tear gas and chemical (pepper) spray, tasers or “stun guns”, stun belts, police dogs, handcuffs and leg shackles;

• racial bias and discrimination against members of minorities, as reflected, inter alia, in statistical disparities in instances (as well as allegations) of harassment and abuse;

• sexual assault and abuse of prisoners by correctional officers and other prisoners;

• ill treatment of and discrimination against prisoners in custody, including inadequate medical care, especially for those with mental illnesses or who are HIV positive;

• lack of police accountability, including failure to discipline, prosecute and punish police misconduct;

• overcrowding of prison facilities;

• excessively harsh conditions and unnecessarily stringent procedures in “supermaximum” security facilities for violent prisoners, including wrongful confinement to such units;

• confinement of children in substandard or abusive correctional facilities;

• under funding of governmental agencies, including correctional institutions.

71. The United States Government is aware of these difficulties and is working to overcome them. At the same time, the Government believes that, overall, the country’s law enforcement agencies and correctional institutions set and maintain high standards of conduct for their officers and treatment for persons in their custody. Among the elements that promote compliance with the standards of the Convention are strong policy guidance and enforcement from the Federal Government, independent promotional and investigative activities by knowledgeable non governmental groups and organizations, and the availability of effective administrative and judicial remedies for those who believe they have been the victims of abuse or excess.

G. Statistics

72. In the United States there exists no single, comprehensive collection or collation of national statistics regarding allegations or complaints of torture, excessive use of force by police or lesser forms of official ill treatment, nor is there any centralized register of persons arrested or detained, lawsuits filed, trials held, sentences imposed or damage awards rendered for such violations. The reason lies primarily in the diffusion of criminal justice authority.

73. Recognizing the lack of reliable information on incidents of use of excessive force by police, the U.S. Congress has recently mandated the collection and annual reporting of data on the subject by the U.S. Attorney General. See § 210402, Title XXI, Subtitle D, Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103 322. Under the Attorney General’s direction, the Bureau of Justice Statistics (an agency within the Office of Justice Programs in the U.S. Department of Justice) and the National Institute of Justice are jointly pursuing efforts to collect national data on police use of force. Their first report, entitled “National Data Collection on Police Use of Force”, was published in April 1996, and summarizes earlier data collection efforts.

74. Other resources of statistical information at the federal level include: (1) the annual report of the Federal Bureau of Investigation entitled “Crime in the United States”; (2) the FBI’s Uniform Crime Reporting Program, which canvasses some 16,000 law enforcement agencies throughout the country; (3) the DOJ’s National Crime Victimization Survey; and (4) the annual report of the U.S. Parole Commission.

75. At the state and local levels, information has been even more difficult to obtain. Each state now has a uniform crime reporting or criminal justice information centre or records bureau which provides information to the national government. Among other available resources are those of the National Center for State Courts.

76. The following data, like the statistics elsewhere in this report, are drawn primarily from publicly available official United States Government sources, in particular the various publications of the U.S. Census Bureau and the Department of Justice’s Bureau of Justice Statistics.

77. Population. As of mid 1997, the overall population of the United States was estimated to be 267 million. Of that total, 33.8 million (or 13 per cent) describe themselves as black; 2.3 million (1 per cent) self identified as American Indian, Eskimo or Aleut; and 10 million (4 per cent) considered themselves to be Asian or Pacific Islanders. Some 29 million (11 per cent) were of Hispanic origin. About 25.8 million (9.7 per cent) were foreign born. Of these, 27 per cent were born in Mexico; other principal countries of origin were the Philippines, China (including Hong Kong), Cuba, India, Viet Nam, El Salvador, Canada, the Republic of Korea, Germany and the Dominican Republic. In California, nearly one in four residents was foreign born; other states with large foreign born populations include New York, Florida, New Jersey and Texas. Nearly one in four foreign born residents has become a United States citizen.

78. Correctional population. The Bureau of Justice Statistics estimates that as of July 1999, approximately 1.7 million adults were currently incarcerated in the United States, of whom slightly more than two thirds were in federal or state facilities and the remainder in local jails. The federal inmate population was estimated at 129,678, with 117,331 housed in Bureau of Prisons operated facilities and 12,347 in contract facilities, including community corrections centres or “halfway houses”. The state institutional population is estimated at over 1.1 million. Some 637,000 were in local jails or under correctional supervision.

79. The United States currently has the largest prison population and the highest incarceration rate of any country. Sentenced inmates numbered about 436 per 100,000 residents. By mid year 1997, 1 in every 155 United States residents was incarcerated.

80. On average, the incarcerated population has grown 6.5 per cent since 1990. The sentenced federal prison population has grown at a faster rate than that of the states. At mid 1995, the nation’s 1,500 adult correctional facilities had a capacity of 976,000 beds.

81. It is estimated that state prisons currently operate at between 16 per cent and 24 per cent over their reported capacity, and the federal correctional system at 19 per cent over its rated capacity. State and federal authorities have built 213 new prisons between 1990 and 1995, an increase of 17 per cent in facilities and some 280,000 new beds. Over 50 per cent of the nation’s prisons are less than 20 years old.

82. Among the reasons for the continuing increase of persons in detention are: an increasing number of arrests, especially for assault, drug offences and firearms violations; an increasing number of felony convictions in state and federal courts (up 5 per cent in 1994 over 1990); an increase in time served (versus length of sentence imposed); and the adoption of more stringent recidivist (habitual offender) laws.

83. In 1994 the average prison sentence imposed by state courts was six years, and by federal courts six and a half years. However, most federal prisoners (about 60 per cent) are drug offenders and on the average serve three years longer than state prisoners because the federal drug laws entail more serious punishments. Some 47 per cent of all state prisoners are serving time for violent crimes. According to a 1993 survey, 27 per cent of federal inmates and 61 per cent of state inmates had a current or past sentence for a violent crime. Approximately 12 per cent of federal prisoners and 16 per cent of state prisoners were armed when they committed the offences of which they were convicted.

84. In 1994, an estimated 14.6 million arrests were made for all criminal infractions other than traffic violations, most of them for offences involving larceny/theft; the arrest rate was 5,715 per 100,000 population.

85. At the same time, the total number of crimes has fallen in recent years, according to the FBI’s Uniform Crime Reports. Violent crimes (such as rape, murder, robbery and aggravated assault) have fallen from 3.5 million in 1992 to 3.3 million in 1995.

86. Nationally, black non Hispanics constitute about 44 per cent of the prisoner population, white non Hispanics 40 per cent, Hispanics 15 per cent, and others (Asians, Pacific Islanders, native Americans and Alaskan Natives) 1 2 per cent. Among federal prisoners, the proportion of black non Hispanics was about 38 per cent and Hispanics about 30 per cent. Relative to the number of residents in the United States population as a whole, black non Hispanic males are statistically more than twice as likely to be incarcerated as Hispanics and seven times as likely as white non Hispanics.

87. As of July 1999, women inmates comprised 7.5 per cent of all federal prisoners. In local jails, males constitute approximately 90 per cent of the inmate population. While men are 16 times more likely to be incarcerated, the number of women in custody is increasing faster than the rate for men.

88. Juveniles (generally defined by state law as persons under age 18) are usually subject to the separate juvenile justice system. Most are housed in detention facilities or correctional institutions specifically established and maintained for them. Sometimes juveniles who have been accused or convicted of acts that are crimes when committed by adults are held in local jails, where as a rule they are separated by sight and sound from the general inmate population. For certain especially serious crimes, juveniles may be accused and prosecuted as adults. Although the total number of juvenile violent crime arrests continues to decline, in 1996 juveniles still accounted for 19 per cent of all such arrests (including for murder, forcible rape, robbery and aggravated assault).

89. Abuse and brutality. The absence of reliable national statistics precludes an accurate statistical description of the frequency with which incidents of abuse and brutality by law enforcement officers take place. Within the federal prison system, however, the number of complaints from inmates is numerically small. Between 1 January 1995, and 31 December 1997 there were 2,147 allegations of staff misconduct concerning physical abuse, verbal/mental/ emotional abuse, sexual assault, or excessive use of force. Of this total, 117 were sustained (5.4 per cent) and 384 were pending investigation. Of the cases closed during fiscal year 1998, there were allegations of physical abuse of inmates against 425 staff members. Physical abuse of inmates was sustained administratively against 13 (3.1 per cent) of these individuals. None of the staff involved were convicted of criminal violations.

90. Also during fiscal year 1998, sexual abuse of inmates was sustained against a total of 24 BOP and non BOP contract employees. A total of 16 staff were convicted of criminal violations. Twenty three of the 24 employees either resigned or were terminated. One contract employee who was involved in a relationship with a former facility resident was prohibited from working with federal inmates and was reassigned.

91. The most common allegations concerned physical abuse, verbal/mental/emotional abuse, sexual assault, and excessive use of force. The majority of complaints concern abuse by other inmates, rather than guards or other correctional personnel.
92. The inmate death rate has declined significantly over the past several decades. In 1995 it was 311 per 100,000 inmates in state prisons. Most of those deaths (156 per 100,000) resulted from illness or natural causes other than AIDS (which accounted for another 100 per 100,000). The suicide rate was 16 per 100,000. In 1998, the death rate for federal prisoners was 231 per 100,000, and the suicide rate for federal prisoners was 11 per 100,000. Over the past five years the suicide average has been 13 per 100,000.

93. At the end of 1995, 2.3 per cent of all state and federal prisoners were reported by prison authorities to be infected with the human immunodeficiency virus (HIV). The rate for state prisoners alone was 2.4 per cent, and for federal prisoners approximately 1 per cent.

II. IMPLEMENTATION OF SPECIFIC ARTICLES

Articles 1 and 2: Definition and prohibition

A. Definition of torture

94. United States understandings. In order to clarify the meaning of “torture” and to delineate the scope of application of the Convention with the greater precision required under United States domestic law, the United States conditioned its ratification upon several understandings related to article 1. The full text of these understandings is at annex I. In essence, they provide that:

95. The intentional infliction of “mental” pain and suffering is appropriately included in the definition of “torture” to reflect the increasing and deplorable use by States of various psychological forms of torture and ill treatment, such as mock executions, sensory deprivations, use of drugs, and confinement to mental hospitals. As all legal systems recognize, however, assessment of mental pain and suffering can be a very subjective undertaking. There was some concern within the United States criminal justice community that in this respect the Convention’s definition regrettably fell short of the constitutionally required precision for defining criminal offences. To provide the requisite clarity for purposes of domestic law, the United States therefore conditioned its ratification upon an understanding that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.

96. For similar reasons of clarity and specificity, United States adherence was conditioned on the understanding that the definition of “torture” in article 1 is intended to apply “only to acts directed against persons in the offender’s custody or physical control” in order to clarify the relationship of the Convention to normal military and law enforcement operations.

97. A further understanding was intended to make clear that the term “sanctions” in article 1 includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. However, as this understanding explicitly noted, a State party could not through the imposition of domestically lawful “official sanctions” defeat the object and purpose of the Convention to prohibit torture.

98. The United States further stated its view that the term “acquiescence”, as used in article 1, requires that a “public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity”. The purpose of this condition was to make it clear that both actual knowledge and “wilful blindness” fall within the definition of “acquiescence” in article 1.

99. Finally, in order to guard against the improper application of the Convention to legitimate law enforcement actions, the United States stated its understanding that non-compliance with applicable legal procedural standards (such as the Miranda warnings referred to above) does not per se constitute “torture”.

B. Prohibition of torture

100. Every act of torture within the meaning of the Convention is illegal under existing federal and state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes. Such prosecutions do in fact occur in appropriate circumstances. Torture cannot be justified by exceptional circumstances, nor can it be excused on the basis of an order from a superior officer.

101. United Stares law recognizes and protects the fundamental right of everyone to life, liberty and inviolability of his or her person. Every system of criminal law in the United States clearly and categorically prohibits acts of violence against the person, whether physical or mental, which would constitute an act of torture within the meaning of the Convention. Such acts may be prosecuted, for example, as assault, battery or mayhem in cases of physical injury; as homicide, murder or manslaughter when a killing results; as kidnapping, false imprisonment or abduction where an unlawful detention is concerned; as rape, sodomy, or molestation; or as part of an attempt or a conspiracy, an act of racketeering, or a criminal violation of an individual’s civil rights. While the specific legal nomenclature and definitions vary from jurisdiction to jurisdiction, it is clear that any act of torture falling within the Convention would in fact be criminally prosecutable in every jurisdiction within the United States.

102. In some jurisdictions, state law currently recognizes a specific crime of “murder by torture” as a statutorily enumerated type of first-degree murder (“intentional homicide”) involving wilful, deliberate and premeditated infliction of pain and suffering and subject to especially severe penalties (“malice aforethought”). See, e.g., Idaho I.C. §§ 18-4001 and 18 4003; Nevada N.R.S. § 200.033; New York Penal § 125.27; South Carolina Code 1976 § 16 3-20; Tennessee T.C.A. § 39-13-204. In few state or local jurisdictions, however, is “torture” itself a separate crime. But see California Penal Code Title 8 § 206 (prohibiting torture); Conn. G.S.A. § 53-20 (cruelty to persons); Alabama Stats. § 13A-6-65.1 (“sexual torture” as a Class A felony).

103. Eighth Amendment. Perhaps the strongest and clearest protection against torture is afforded by the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishments”.

104. This prohibition is directly applicable to actions of the Federal Government and, through the Fourteenth Amendment, to actions of the states and localities. Robinson v. California, 370 U.S. 660 (1962). It encompasses uncivilized or inhuman punishments, punishments which fail to comport with human dignity, and punishments which include undue physical suffering. Furman v. Georgia, 408 U.S. 238 (1972). It covers punishments which, although not physically “barbarous”, involve the unnecessary and wanton infliction of pain, or are “grossly disproportionate” to the severity of the crime. Hence, it includes punishments which are totally without penological justification, Rhodes v. Chapman, 452 U.S. 337 (1981), as well as prison work requirements which compel inmates to perform physical labour which is beyond their strength, which endangers their lives, or which causes undue pain, Ray v. Mabry, 556 F.2d 881 (8th Cir. 1977). Punishment at “hard labour” is no longer available as a criminal sanction under federal law, having been held many years ago to constitute excessive and grossly disproportionate punishment. Weems v. United States, 217 U.S. 349 (1910).

105. As custodians of large numbers of convicted criminals, including many dangerous individuals, prison officials may use reasonable force for purposes of self-defence, the defence of third persons, enforcement of prison rules and regulations, and prevention of escape and crime. However, the Eighth Amendment forbids public officials from deliberately inflicting pain on prisoners in an unnecessary and wanton manner, such as through beatings. In Hudson v. McMillian, 503 U.S. 1 (1992), prison officials had handcuffed and shackled a prisoner and beaten him after an argument; the inmate received bruises, swelling, loosened teeth and a cracked dental plate. The U.S. Supreme Court found that this ill-treatment constituted excessive force, in violation of the Eighth Amendment, even though the prisoner’s injuries were not serious. The Court also found culpable a supervisor who observed, but did not participate in the beating, on the ground that he should have acted to protect the victim. In Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), prison officials were found to have committed unprovoked acts of brutality when they recaptured the prison after bloody rioting by inmates; a federal appellate court enjoined state officials from future acts of brutality and torture.

106. The Eighth Amendment has also been interpreted to apply to (1) inadequate conditions of confinement resulting from an official’s “deliberate indifference” to identifiable human needs (such as continuous deprivation of food, warmth, and exercise), Wilson v. Seiter, 501 U.S. 294 (1991), and possibly overcrowding of facilities, Rhodes v. Chapman, 452 U.S. 337 (1981); (2) excessive use of force by prison officials, as well as failure to protect inmates from physical attacks by other inmates, and inadequate training or screening of guards, Whitley v. Albers, 475 U.S. 312 (1986); and (3) inadequate provision of medical, dental and psychiatric care, including an official’s deliberate indifference to an inmate’s serious medical needs which exceeds simple medical malpractice, Estelle v. Gamble, 429 U.S. 97 (1976), and Farmer v. Brennan, 511 U.S. 825 (1993) (prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement).

107. Because the Eighth Amendment incorporates contemporary standards of decency, its interpretation continues to evolve. In Helling v. McKinney, 509 U.S. 25 (1992), for example, the U.S. Supreme Court held that the health risks posed by involuntary exposure of prison inmates to environmental tobacco smoke can form the basis of a claim under the Eighth Amendment. As stated earlier in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989),

“[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being ... The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs - e.g., food, clothing, shelter, medical care, and reasonable shelter - it transgresses the substantive limits on state action set by the Eighth Amendment ...”

108. As a technical legal matter, the protections of the Eighth Amendment apply only to “punishments”, that is, to the treatment of individuals who have been convicted of a crime and are therefore in the custody of the Government. Ingraham v. Wright, 430 U.S. 651 (1977); United States v. Lovett, 328 U.S. 303 (1946).

109. Military justice system. The Eighth Amendment applies with equal force to the military justice system. Moreover, article 55 of the Uniform Code of Military Justice (“UCMJ”) specifically prohibits punishment by flogging, branding, marking or tattooing on the body, or any other cruel or unusual punishment. The article also prohibits the use of restraints known as “irons” whether single or double, except for the purpose of safe custody. Indeed, a commanding officer who orders such punishment would be acting outside the scope of his or her position and would be individually liable for the intentional infliction of bodily and emotional harm. In addition, article 93 of the UCMJ makes it a criminal offence for a military member to engage in acts constituting cruelty and maltreatment (including sexual harassment) toward a subordinate.

110. Under the UCMJ, an individual may be apprehended (“arrested”) only upon reasonable belief that an offence has been committed and that the person apprehended has committed it. Permissible grounds for, and conditions of, pre trial confinement are also spelled out in the UCMJ, including the right of the person confined to be notified of the nature of the offence charged, to remain silent, to retain civilian counsel at no expense to the Government, to military counsel at no cost, and to be familiar with the procedures for review of pre trial confinement. Pre trial confinement must be affirmed by the commander within 72 hours, and a pre trial confinement hearing is required to be conducted by a neutral and detached magistrate who may order the release of the person being confined. Once charges against the detainee are referred to trial by court martial, the appropriateness of pre-trial confinement may again be reviewed by the military judge.

111. The Department of Defense has adopted the “Common Rule” for human subjects of medical research referred to below. See 32 C.F.R. Part 219.

112. Other constitutional provisions. Because the Eighth Amendment by its terms applies to “punishments”, courts have looked to other constitutional provisions, in particular the Fourth Amendment’s protections against unreasonable searches and seizures and the due process requirements of the Fifth and Fourteenth Amendments, to preclude the abuse or ill-treatment of individuals in other custodial circumstances. These constitutional protections are applicable and enforced at all levels of government.

113. The Fourth Amendment provides that all persons shall be free from unreasonable searches and seizures and that “no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

114. The Fourteenth Amendment provides that “[n]o State [shall] deprive any person of life, liberty or property without due process of law”. The Fifth Amendment applies to the Federal Government and similarly provides that no person shall “be deprived of life, liberty, or property without due process of law”. The principle of due process provides a broad and flexible measure of protection against abuse of state power. The due process clauses of the Fifth and Fourteenth Amendments may reach actions that are technically outside Eighth Amendment purview, such as excessive use of force by law enforcement personnel during the investigative or pre trial stages. Denial of pre trial release by itself may implicate substantive and procedural due process concerns. United States v. Salerno, 481 U.S. 739 (1987).

115. Although the Eighth Amendment does not apply to “pre trial detainees”, i.e., persons lawfully arrested but not yet convicted and sentenced, the courts have ruled that such individuals enjoy equivalent protection under the Fourteenth Amendment with regard to conditions of detention. “[S]tates may not impose on pre trial detainees conditions that would violate a convicted person’s Eighth Amendment rights.” Hamm v. DeKalb County, 774 F.2d 1567, 1573 74 (11th Cir. 1985), cert. denied 475 U.S. 1096 (1986). See also Graham v. Connor, 490 U.S. 386 (1989) (the Due Process Clause of the Fourteenth Amendment protects a pre trial detainee from the use of force that amounts to punishment); Bell v. Wolfish, 441 U.S. 520 (1979); Ingraham v. Wright, 430 U.S. 651 (1977). In Lancaster v. Monroe County, Ala., 116 F.3d 1419 (11th Cir. 1997), a federal court of appeal stated that the minimum standard of medical care owed to a pre trial detainee under the Fourteenth Amendment is the same as that required under the Eighth Amendment for a convicted prisoner.

116. The Fifth Amendment safeguards the right of an individual not to be compelled to testify against himself or herself. The Fourteenth Amendment’s Due Process Clause protects against tortious acts employed with the intention of compelling confessions through fear of hurt, ill treatment or exhaustion. Adamson v. California, 332 U.S. 46 (1947).

117. The law also directly regulates the official use of force. Prison guards, sheriffs, police, and other state officials who abuse their power through the excessive use of force may be punished under the criminal provisions of the federal Civil Rights Acts, 18 U.S.C. §§ 241 and 242. Where law enforcement officials are involved in the excessive use of force, individually or in a conspiracy, victims are also protected with respect to the rights secured by the Fourth, Fifth, Eighth and Fourteenth Amendments, depending on the circumstances and the status of the victims.

118. State constitutions. Equal or additional protections are afforded under state constitutional law. For example, the Oregon Constitution provides that “no person arrested, or confined to jail, shall be treated with unnecessary rigor”. Oreg. Const. article I, § 13. This provision has been interpreted to include physically brutal treatment and to extend to needlessly harsh, degrading or dehumanizing treatment. It prohibits assaults by police officers and intimate touching by prison guards of the opposite sex, and it requires custodial officials to provide an environment that does not unnecessarily subject inmates to excessive health hazards.

119. A majority of state constitutions contain search and seizure provisions substantively identical to the Fourth Amendment, and many states (though not all) have adopted the “exclusionary rule” in state constitutional law independent of the federal rule. See, e.g., State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988); State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986).

C. Specific procedural protections

120. In addition to the prohibition against cruel and unusual punishment and the protections of the Due Process Clause, the United States criminal justice system contains a number of specific procedural mechanisms which, taken together, offer strong additional protections against the occurrence of torture and remedial opportunities in the event that it nonetheless occurs. At the risk of over-simplifying a complex body of law and procedure, these protections may be summarized as follows.

121. Habeas corpus. Of principal significance is the constitutionally recognized right of habeas corpus, which affords individuals in custody the right to an immediate judicial hearing on the legality and the conditions of their confinement and an order directing the detaining official to release them, if appropriate. In particular, a person in custody who has not been formally arrested and provided a preliminary hearing as required by law may seek immediate release by filing an application for a writ of habeas corpus in state or federal court. The writ can also be used to seek review of a final conviction, to challenge execution of a sentence, or to contest the legality of an order of confinement not resulting from a criminal sentence, for example a commitment to custody for mental incompetence or for extradition reasons. This right ensures, for example, that suspects in the United States may not be held “incommunicado”.

122. Arrest and detention. United States law imposes strict rules regarding arrest and detention of suspects by agents of the state and effectively protects individuals against arbitrary arrest and detention.

123. A person may ordinarily be detained only for a brief period unless he or she has been formally arrested or charged with a crime by complaint or indictment, or refuses to obey a lawful court order (but only so long as he or she refuses to obey). Under the Fourth Amendment, persons may be arrested only if there is “probable cause” to believe they have committed a crime. A judicial officer must authorize such detention, either by issuing a warrant for the person’s arrest or, when the arrest has taken place without a warrant, by approving the arrest within a short time (i.e., within 48 hours) after it occurs. State law also generally requires an arrest warrant except when the arresting authorities observe a crime in progress.

124. In this respect, United States law does not permit “preventive detention” solely for purposes of investigation, as it is practised in many countries. Officers must have a particularized and objective basis for suspecting an individual of criminal activity before they may detain him or her for even a limited purpose or duration (such as a “stop and frisk”). Moreover, the Fourth Amendment also protects against physical ill-treatment at the stage of arrest or investigatory stop. An objectively unreasonable use of force is not permissible. Graham v. Connor, 490 U.S. 386 (1989). In addition, the judicial officer must authorize the continued detention of the arrestee following a hearing at which it is determined that there is sufficient reason to believe the person will flee from justice or pose a threat to the public if released.

125. These constitutional requirements are binding on all levels of government within the United States. Additionally, states through their separate laws guarantee that individuals will not be arbitrarily arrested and detained by state authorities and also require prompt notification of charges and a speedy trial.

126. Right to be informed. Persons under arrest must at a minimum be informed of the offence with which they are charged and given an opportunity to see the arrest warrant as soon as is practicable. In the case of a warrantless arrest, the arresting authority must inform the arrestee of the basis for the arrest. State and federal law generally impose similar requirements in this regard.

127. Right to counsel. The right to counsel in criminal cases is guaranteed by the Sixth Amendment to the United States Constitution. This right is binding on the states via the Fourteenth Amendment. In addition, the right is also guaranteed by similar or analogous language in every state constitution (except that of Virginia). The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense”. While primarily reflecting the need for legal representation at trial, this right has been interpreted to apply whenever adversarial judicial proceedings have begun, whether or not the individual is in custody. See Massiah v. United States, 377 U.S. 201 (1964) (government attempts deliberately to elicit confession or incriminating statements after the initiation of formal charges may interfere with the right to counsel and therefore render such statements inadmissible as evidence).

128. The right to counsel applies at the preliminary hearing stage, at arraignment, and at the post-trial (sentencing) phase. See Coleman v. Alatan, 339 U.S. 1 (1990); Michigan v. Jackson, 475 U.S. 625 (1986); and Mempa v. Rhay, 389 U.S. 128 (1967). It can also apply to custodial interrogations. In Escobedo v. Illinois, 378 U.S. 478 (1964), the defendant’s confession was excluded (“suppressed”) because the police had violated his Sixth Amendment rights by telling him incorrectly at the time of interrogation that his attorney did not want to see him.

129. Inability to afford representation cannot deprive an accused of his or her right to counsel. In Gideon v. Wainwright, 372 U.S. 335 (1962), the U.S. Supreme Court found that the Sixth Amendment mandated state-paid counsel for the trial of indigent felony defendants. The right was extended to all cases including misdemeanors in which imprisonment is imposed. Scott v. Illinois, 440 U.S. 367 (1979); Argersinger v. Hamlin, 407 U.S. 25 (1972). Hence, no state can sentence an indigent convicted defendant to a term of imprisonment unless it has afforded him or her the right to assistance of appointed counsel. Constitutional notions of due process also require provision of counsel in appeals as of right. Evitts v. Lucey, 469 U.S. 387 (1985).

130. The conceptually separate Fifth Amendment right to counsel is based on the privilege against self-incrimination as it applies during custodial law enforcement interrogation and can apply even when the Sixth Amendment does not. See Miranda v. Arizona, 384 U.S. 436 (1966).

131. In some instances, state law provides, or has been interpreted to provide, defendants with even greater rights concerning assistance of counsel than the protections derived from the federal Constitution. Both Hawaii and Louisiana, for instance, provide indigents more extensive entitlement to state-appointed attorneys than is required by the United States Constitution under Gideon v. Wainwright, 372 U.S. 335 (1963) and Argersinger v. Hamlin, 407 U.S. 25 (1972). In New Jersey, the state Supreme Court has held that the consent of defence counsel is required before the prosecutor may initiate conversations with the defendant after indictment and before arraignment. See State v. Sanchez, 129 N.J. 261, 609 A.2d 400 (1992). New York law prohibits uncounselled waivers of Sixth Amendment rights, People v. West, 81 N.Y.2d 370, 599 N.S.S.2d 484 (1993). The California state Constitution extends the right to counsel to pre-indictment line ups. People v. Bustamonte, 30 Cal.3d 88, 177 Cal. Rptr. 576 (1981).

132. Custodial interrogation. United States law provides several protections against physical and mental compulsion, threats and inducements of individuals in custody. Under the Fifth Amendment’s privilege against compelled self-incrimination and the rule imposed by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), the police must inform the individual that he or she has the right to remain silent, that any statements he or she makes can be used against him or her in court, that he or she has the right to consult a lawyer and to have the lawyer present during interrogation, and that if he or she cannot afford a lawyer one will be appointed to represent him or her prior to questioning. These rights (commonly called “Miranda rights”) ordinarily attach when an individual is first subjected to custodial interrogation, even if it is in respect of a minor offence.

133. Initial appearance. Every detainee must be brought promptly before a judicial officer for an initial appearance, even when the arrest has been made pursuant to a duly issued warrant based on a showing of probable cause. Persons arrested without a warrant must be brought before a magistrate for a finding of probable cause within a reasonable time. Although “reasonable time” is not specifically defined, the U.S. Supreme Court has held that it generally cannot be more than 48 hours. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Some states apply more stringent standards to bar detention for even that length of time.

134. At the initial appearance, the accused is informed of the charges, of the right to remain silent and the consequences of choosing to make a statement, the right to request assistance of counsel, and of the general circumstances under which one can obtain pre-trial release (e.g., bail). A delay in the initial appearance may be a factor in assessing the voluntariness of any inculpatory statement made by the accused, and hence its admissibility. See McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957).

135. Exclusionary rule. Protection against self-incrimination, guaranteed under the Fifth Amendment in federal proceedings (and through the Fourteenth Amendment in state and local proceedings), operates to deter police misconduct by ordinarily preventing the Government from using the improperly obtained statement against the individual concerned. The exclusionary rule also operates with respect to violations of the Fourth Amendment (e.g., with respect to physical or bodily evidence) and the Sixth Amendment (e.g., right to counsel). As indicated above, in many instances, state law independently provides for exclusion of illegally obtained evidence.

136. Pre-trial release. Conditional release of the accused is the norm in the United States criminal justice system. While there is no constitutional right to bail (the Eighth Amendment prohibits “excessive bail”), the general rule in both the federal and the state judicial systems is that persons will not be detained in custody unless the judicial officer cannot be assured that there are conditions of release which will reasonably guarantee the safety of the public and the appearance of the individual at the criminal trial. In the federal system, the 1966 Bail Reform Act, 18 U.S.C. §§ 3141 et seq., last amended in 1984, provides that (except for particularly dangerous persons or persons likely to flee if not detained), defendants awaiting trial may be released on their own “personal recognizance”, upon the execution of an unsecured appearance bond, or upon other conditions set by the court. State procedures are similar; various states take into account different factors in setting bail, and some states have no statutory scheme.

137. Speedy trial. The Sixth Amendment guarantees all accused individuals a right to a “speedy and public trial”. In the federal system, this right is implemented by the Speedy Trial Act of 1974, codified at 18 U.S.C. §§ 3161-3174 (last amended in 1984). The right to a speedy and public trial applies to the states under the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213 (1967), and many states have adopted statutes similar to the federal one. At trial itself, of course, defendants enjoy a number of important protections, including the right to be tried in their own presence and to defend in person, to be represented by counsel, to confront the witnesses against him or her, to the assistance of an interpreter if necessary, protection against self-incrimination, and of review of conviction and sentence by an independent court.

D. Conditions of detention

138. As indicated above, the constitutional prohibition against cruel and unusual punishments applies not only to punishments imposed by statute or pursuant to the sentence of a court but also to prison conditions and the treatment to which a sentenced prisoner is subjected. Prisoners may not be denied an “identifiable human need such as food, warmth, or exercise”. Rhodes v. Chapman, 452 U.S. 337 (1981).

139. Prisoners must be provided “nutritionally adequate food, prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it”. Ramos v. Lane, 639 F.2d 559 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). Prisoners must also be provided medical care, although an inadvertent failure to provide medical care does not rise to the level of a constitutional violation; rather, it is a prison official’s “deliberate indifference” to a prisoner’s serious illness or injury that constitutes “cruel and unusual” punishment. Estelle v. Gamble, 429 U.S. 97 (1976). Several federal statutes also provide protection to sick and disabled inmates. See, e.g., the Americans with Disabilities Act,

codified at 42 U.S.C. §§ 12101-12213 (which prevents discrimination against qualified individuals on the basis of their disabilities); the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794.

140. Prison officials have a duty to protect prisoners from violence inflicted by fellow prisoners. Hudson v. Palmer, 468 U.S. 517 (1984). Because prisons are inherently dangerous places, prison officials are responsible (liable) to victims only if they have prior knowledge of imminent harm. In Vosberg v. Solem, 845 F.2d 763 (8th Cir. 1988), plaintiffs in a South Dakota state prison complained that a number of institutional policies resulted in their being victimized, including a pass system that permitted young inmates to be alone with older inmates, “double celling” violent and non-violent inmates, and positioning guards where they could not see inside prisoners’ cells. The court concluded that the prison policies were directly responsible for the ensuing violence, thereby giving rise to a violation of the Eighth Amendment and liability for damages and attorneys fees.

141. Finally, prisoners must not be subjected to excessive use of force. Force may be applied only “in a good faith effort to maintain or restore discipline” and may not be used “maliciously and sadistically to cause harm”. Whitley v. Abers, 475 U.S. 312 (1968).

142. In all criminal correctional systems, the policies and practices of prison staff are governed by official regulations designed, inter alia, to afford humane and dignified treatment to prisoners. The correctional community is aware of, and in general subscribes to, the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Code of Conduct for Law Enforcement Officials.

143. Disciplinary measures. As a matter of federal constitutional law, the concept of due process guarantees inmates certain rights regarding the imposition of disciplinary or punitive measures while in confinement. These include, for example, advance written notice, the opportunity to call witnesses and present evidence, and a written statement of reasons and findings. Wolff v. McDonnell, 418 U.S. 539 (1974); Meachum v. Fano, 427 U.S. 215 (1976); Sandin v. Conner, 515 U.S. 472 (1995). State law in some cases provides greater protection than these federal constitutional guarantees. See, e.g., McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975).

144. Special security measures. Within the constraints of the Eighth Amendment, convicted prisoners may be subjected to special security measures and segregation from the general prison population only in limited circumstances necessary to maintain the safety and security of the inmates or staff of an institution. Prisoners are entitled to due process protections in the application of these measures and to a federal remedy when the conditions violate the standards of the Eighth Amendment.

145. In November 1994, the Federal Bureau of Prisons activated the Administrative Maximum Security Institution (ADX) in Florence, Colorado. The mission of this facility is to confine the most dangerous and aggressive inmates in the Federal Prison System, along with a number of state offenders who also present extreme management problems. Such offenders have been designated to ADX Florence because their assaultive, predatory, or escape-related behaviour is so serious that it would be unsafe to house them in traditional, open population institutions of lesser security. Administrative maximum security operations, however, are no more stringent than necessary to ensure the safety of the public, Bureau staff, and other inmates. To date, there has been no litigation regarding the general conditions of confinement at ADX Florence.

146. Various non-governmental groups have expressed concerns about conditions in the so called “super maximum security” facilities which have been established in some state systems. In January 1995, a U.S. District Court found conditions at the Security Housing Unit in the California State Department of Corrections’ Pelican Bay facility to be in violation of the United States Constitution. The court held specifically that (1) there was unnecessary and wanton infliction of pain and use of excessive force; (2) prison officials did not provide inmates with constitutionally adequate medical and mental health care; (3) conditions of confinement in the security housing unit, which included extreme isolation and environmental deprivation, did not inflict cruel and unusual punishment on all inmates, but conditions in that unit did impose cruel and unusual punishment on mentally ill prisoners; (4) some procedures used to validate inmates as gang members and thus transfer them to the unit violated due process; and (5) a special master would be appointed. Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).

147. The Civil Rights Division of the Department of Justice also conducted an investigation of the Maryland State “supermax” facility and, in May 1996, issued a letter of findings to the State. The letter advised the State of several constitutional violations, including violations relating to the medical and mental health care being provided to the prisoners. The State instituted remedial measures and, as a result, in September 1998 the Civil Rights Division closed its investigation.

148. Visitation. Access to convicted prisoners is largely regulated by state law and within the discretion of the prison administrators; there is no federal constitutional or statutory right to visit convicts in prison. However, access is provided to a prisoner’s counsel or legal representative, Souza v. Travisono, 368 F. Supp. 459 (D.R.I. 1973), aff’d. 498 F.2d 1120 (1st Cir. 1974), and it is the norm for administrators to encourage family members and friends to visit inmates, subject to reasonable restrictions to ensure orderliness and security. Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989); Meachum v. Fano, 427 U.S. 215 (1976). The federal Bureau of Prisons does so by regulation, 28 C.F.R. § 540.40. Some state correctional systems allow conjugal visits. Access by the clergy, the press, concerned non-governmental organizations and other non-family members and the general public is likewise permissible, subject only to reasonable restrictions.

149. Medical or scientific experimentation. With one limited exception discussed below, non consensual medical experimentation is illegal in the United States. Specifically, it implicates the Fourth Amendment’s proscription against unreasonable searches and seizures by the government (including seizing a person’s body), the Fifth and Fourteenth Amendments’ proscription against depriving one of life, liberty or property without due process, the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishment, and state and common law proscriptions against criminal and civil assault and battery.

150. Seventeen federal agencies have adopted a single, general set of regulatory provisions which prohibit, with limited exceptions, non-consensual participation by human subjects in medical research. See 45 C.F.R. Part 46. Origins of this rule lie in the National Research Act of 1974, which established a National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, whose recommendations (known as the “Belmont Report”) were published in April 1979, and in the recommendations made by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in 1981. The protective regulations implementing this “Common Rule” mandate led to consent procedures and standards for any research involving human subjects that is conducted, supported, or regulated by any of the federal agencies. Included in these procedures is a required review of the proposed study by an Institutional Review Board composed of experts familiar with the proposed research, at least one individual who is not a scientist, and one individual who is not affiliated with the institution conducting the research. The Board must also scrutinize the informed consent documents to ensure that they meet the relevant regulatory standards. Additional protections are mandated for pregnant women, fetuses, human in vitro fertilization, children, and prisoners who participate in medical research.

151. One limited exception to the prohibition against non-consensual medical research permits research on individuals in need of emergency therapy who cannot give legally informed consent because of their medical condition and because no legally authorized representative is available to give consent on their behalf. The Secretary of Health and Human Services waived the regulatory requirement for obtaining and documenting informed consent for this limited class of research participants, permitting an Institutional Review Board to review and approve research concerning emergency therapies and to review the waiver of informed consent. See 61 Fed. Reg. 51531-33 (2 October, 1996); see also 21 C.F.R. § 50.24. The waiver does not permit emergency therapy research involving pregnant women, fetuses, human in vitro fertilization, or prisoners.

152. The Federal Government promotes continued attention and education in this field in a variety of ways. For example, the National Institutes of Health requires MD/PhD students in various federally supported educational programmes to take a course in “Scientific Integrity and the Responsible Conduct of Research”. The National Bioethics Advisory Commission, established by Executive Order No. 12975 (3 October, 1995), is charged with identifying broad principles to govern the ethical conduct of research, including particularly in the management and use of genetic research, and reviewing the appropriateness of federal agency policies, guidelines and regulations relating to bioethical issues arising from research on human biology and behaviour.

153. While prisoners are generally free to consent to any regular medical or surgical procedure for the treatment of their own medical conditions, their consent must be “informed.” However, prison regulations do not, as a rule, permit prisoners to participate in medical and scientific research. For example, the Federal Bureau of Prisons prohibits medical experimentation or pharmaceutical testing of any type on all inmates in the custody of the Attorney-General who are assigned to the Federal Bureau of Prisons. See 28 C.F.R. § 512.11(c). When not otherwise prohibited by law, medical research on prisoners may be conducted in accordance with human subjects protection regulations and using special informed consent protections and procedures mandated for prisoners. See 45 C.F.R. Part 46, Subpart C.

154. Within the broader correctional community, similar standards have been developed strictly limiting the types of research conducted in prisons, even with an inmate’s consent. In its mandatory requirements for institutional accreditation, for example, the American Correctional Association stipulates that:
“Written policy and practice prohibit the use of inmates for medical, pharmaceutical, or cosmetic experiments. This policy does not preclude individual treatment or an inmate based on his or her need for a specific medical procedure that is not generally available.”

155. Generally, the involuntary administration of antipsychotic medication deprives an inmate of a constitutionally-deprived liberty interest and may also infringe upon the inmate’s rights under state law. If the inmate has a serious mental illness, poses a threat to himself or others, and treatment is determined to be in his medical interest, however, such drugs can lawfully be administered. Washington v. Harper, 494 U.S. 210 (1990).

Article 3: Non-refoulement

156. The United States recognizes its obligation not to “expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The Department of State and the Department of Justice are the agencies charged with duties that may implicate article 3 obligations. The Immigration and Naturalization Service (INS), an agency within the Department of Justice, is responsible for ensuring compliance in the context of removal (formerly deportation or exclusion) of aliens illegally present in the United States, and the Department of State is responsible for ensuring compliance in the extradition context.

157. Generally, expulsions and returns of aliens from the United States are governed by the substantive and procedural rules set forth in the Immigration and Nationality Act (INA). The process of extradition is based on bilateral extradition treaties and is governed by other federal statutes. Thus, the requirements of article 3 implicate two separate and largely distinct bodies of domestic law. In FY 1998 approximately 171,154 aliens were removed from the United States, 38 persons were formally extradited from the United States, and an additional 28 persons were surrendered pursuant to waivers of extradition.

158. United States understanding. Guidance for ensuring compliance with article 3 may be found by comparing its provisions to article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention) and to the 1967 Protocol to the Refugee Convention, to which the United States is a party. Article 33 provides that “no Contracting Party shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion”. The United States currently implements article 33 of the Refugee Convention through the withholding of removal provision in section 241 (b) (3) of the INA. That provision, as interpreted by the courts, requires that the Attorney General withhold an alien’s removal to a country where it is more likely than not that an alien’s life or freedom would be threatened on account of one of the five grounds mentioned above. INS v. Stevic, 467 U.S. 407 (1984). In order to clarify the meaning of “substantial grounds” in article 3, the United States conditioned its ratification on the understanding that the phrase “where there are substantial grounds for believing that he would be in danger of being subjected to torture”, means “if it is more likely than not that he would be tortured”.

159. INS and the removal of aliens. Removal proceedings, through which it is determined whether an alien should be removed from the United States, are considered civil rather than criminal proceedings. Depending on the circumstances in individual cases, aliens subject to removal proceedings may be accorded a range of statutory and regulatory procedural rights, including access to legal representation, a hearing before an immigration judge, the right to appeal an adverse decision to the Board of Immigration Appeals, and the right to seek review of certain decisions in a federal court. In addition, certain classes of aliens in removal proceedings may designate the country to which they will be ordered removed.

160. An alien may seek several types of protection from removal to a country where he or she fears harm, including asylum and withholding of removal. While these two remedies differ in procedure and effect, they both rely on a determination that the alien is at risk of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion”. INA Sections 208 and 241 (b).

161. It can be expected that in many cases where an alien’s return to a particular country would be prohibited by article 3, the alien might also satisfy the requirements for asylum or withholding of removal. There are, however, some important differences between asylum and withholding of removal, on the one hand, and article 3 on the other hand. First, consistent with article 33 of the Refugee Convention, several categories of individuals, including persecutors, persons who have committed particularly serious crimes, persons who are believed to have committed serious non political crimes before arriving in the United States, persons who pose a security danger to the United States and certain terrorists are ineligible for asylum and withholding of remova