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Being here with adults, that ain't going to rehabilitate me, it just teaching me to be a better criminal. They looking to lock me up, throw away the key, leave me with no hope. I need to break out the cycle, get me some services and treatment so I can be a productive member of society. Being an adult, that's right around the corner. I be asking for treatment, but I'm seventeen, six foot three, 200 pounds. I still got the mind of a minor, but they look to the body first.
-James S. (not his actual name), interviewed in the Montgomery County Detention Center, July 30, 1999
Those children who are not released on bail or placed in juvenile institutions are held in county jails while they await trial.52 While they may ask to be transferred to juvenile facilities, such requests are rarely granted. As a result, in Baltimore, where we documented the most severe conditions of confinement, over 150 juveniles charged as adults are held in the city detention center, an aging facility that has been operating above its original rated capacity for at least ten years.53 At midyear 1995, according to figures from the U.S. Department of Justice Bureau of Justice Statistics, Maryland had 200 inmates under the age of eighteen in its state and federal correctional facilities, an increase of almost 30 percent in five years.54
This increase parallels a national trend. Across the United States, the Office of Juvenile Justice and Delinquency Prevention has documented a 14 percent increase between 1985 and 1995 in the number of children held in adult jails.55 Nationwide, the Bureau of Justice Statistics estimates that an average of some 6,000 children were held as adults in jails each day in 1995.56
In Maryland, individuals who are charged with a crime and who cannot afford (or are not granted) bail are held in pretrial detention in one of twenty-three county jails or in the Baltimore City Detention Center. In fiscal year 1997, some 7,160 persons were held in Maryland's local detention centers awaiting trial or sentencing;57 between 200 and 300 of that total were juveniles.
With the exception of Baltimore City's jail, Maryland's jails are maintained by the county governments and are usually placed under the supervision of the local sheriffs' offices. Largely in response to an inmate class action lawsuit, the Baltimore City Detention Center has been maintained by the state since 1991; it falls under the purview of the state Department of Public Safety and Correctional Services, the state agency primarily responsible for Maryland's prisons.
Many of Maryland's jails do not separate children from adult inmates. In Frederick and Washington Counties, for example, jail staff told us that children are routinely commingled with adults. Even in the largest facilities, we found that children are exposed to adult inmates to a degree that would not meet the "sight and sound" separation standard that would be required if these children were charged in the juvenile courts. Juveniles may be housed with adults even in the largest facilities.
Children and jail administrators alike frequently expressed the view that juveniles should not be held in jails together with adults. "You need to get the juveniles out of here," Terence B., age seventeen, told us during an interview at the Baltimore City Detention Center, where he had been detained for more than six months. "We can't handle what the adults can handle. We ain't ready for that."58 Similarly, Commissioner LaMont Flanagan told us during an interview at theBaltimore City Detention Center, "I think these kids should be in juvenile facilities, but the statutes and laws are going in a different direction."59
The impact of housing children in adult jails goes beyond the increase in sheer numbers. Children often have more incentive than adults to go to trial, meaning that jails are faced with the prospect of housing younger detainees for longer periods of time. In Baltimore, the detention center staff estimate that juvenile inmates spend an average of six months in detention before their cases are resolved. Elsewhere in the country, studies have found that juveniles charged as adults spend more time in pretrial detention than do their counterparts who face charges in the juvenile courts.60
Juvenile justice experts note that the detention of adolescents "raises complex issues of housing, special program needs, individualized attention, impulsivity, erratic behavior, and unpredictable situational reactions."61 In fact, "[m]isconduct by young inmates is, to some extent, linked to their development as adolescents. Staff reponses based on adult patterns of misconduct are likely to be less effective in managing juveniles."62 Without the specialized training necessary to deal with adolescents, many jail guards are simply unprepared to handle juveniles. An official with the South Carolina Department of Corrections has noted that, in adult facilities, "[a]ll of our policies and procedures are developed with the understanding that adults understand the consequences. Juvenile offenders don'tunderstand that. Four weeks is an eternity for them. They don't understand time."63
International standards recognize that a child's case should be resolved expeditiously and without unnecessary delay, a concern which is even more pronounced when the child is detained. Children held in adult detention facilities are deprived of the benefit of specialized programming that would be available to them if they were held in juvenile institutions.
For these reasons, the American Jail Association recognized in 1993: "The care and legal requirements of housing juveniles . . . require specially trained staff and specially designed programming not readily available in an adult facility."64 Barry Stanton, the Prince George's County Correctional Center's director, puts it more simply. "We're not trained to be babysitters," he states. "Don't ask me to be a mental health expert, a teacher, a disciplinarian for juveniles. It's not my job."65
The Risks to Children's Safety and Well-Being
Because of the nature of a jail, detained children may be at risk of harm from other juveniles. Mark Soler, president of the Youth Law Center, contends that "it makes an enormous difference" whether youths are held in a jail or a juvenile detention facility:
Proper juvenile detention facilities are quite different from adult jails. Juvenile detention facilities have the space to classify children who are admitted, and therefore to separate potentially predatory youth from children who are particularly vulnerable. Jails can't do that-they generally have one cell or one cellblock for the juveniles, so dangerous youth and vulnerable children are thrown in together, often with disastrous consequences.66
Children detained in jails are also at risk of harm from the adult inmate population. Commenting on a proposed federal initiative that would allow juvenile offenders to be housed with adults, Shay Bilchik, administrator of the Office of Juvenile Justice and Delinquency Prevention at the U.S. Department of Justice, stated: "We believe that the standard proposed by [Senators Hatch and Sessions] would inevitably lead to increased physical assaults on juveniles, including sexual abuse and other attendant harm, new lawsuits and a further blurring of the differences between the criminal and juvenile justice systems."67
These factors may lead to serious emotional consequences for children held in adult facilities. The most vulnerable children often "have little choice but to enter protective custody, which is usually a separate, secure housing unit in which they spend a great deal of time in isolation-a setting that is especially conducive to suicidal behavior."68 In fact, children held in jails are up to eight times more likely to commit suicide than those held in juvenile detention centers.69 Testifying before the Senate Judiciary Committee's Subcommittee on Youth Violence, Soler stated:
Children who get arrested often feel like their world is ending-they are humiliated, their parents are angry, their friends will all find out. If they have been using alcohol or drugs, these feelings are exacerbated. If they are put in a room at the end of a hallway, as they often are with the sheriff's intention of keeping them away from adult inmates, then depression and isolation feed on each other, they feel life is no longer worth living, and they seek to end it.70
As Stanton points out, "We need to understand the impact, the real costs attached to locking up juveniles in adult detention centers. It increases overcrowding in already overcrowded facilities. These juveniles should really be going to a juvenile facility and, if necessary, transferred to an adult facility when they turn eighteen. We have to remember, these are young offenders."71
United States Law and Policy
In the case of convicted adult prisoners, conditions of confinement violate the United States Constitution if they constitute "cruel and unusual punishment" under the Eighth Amendment.72 In assessing whether a particular condition or practice is cruel and unusual, the federal courts examine whether the condition results in an "unecessary and wanton infliction of pain" and whether the officials acted with deliberate indifference to the rights of the inmate.73 Pretrial detainees benefit from greater protections because they have not been convicted of a crime. Innocent until proven guilty, they may not be confined under conditions that "amount to punishment." Such confinement violates the due process clause of the Fourteenth Amendment and the due process protections contained in the Maryland Declaration of Rights.74
The U.S. Department of Justice has the statutory authority to begin either a a civil lawsuit or a criminal prosecution to address civil rights violations by state officials. Acting under the Civil Rights of Institutionalized Persons Act (CRIPA), the department may investigate allegations of constitutional rights violations in a state's jails and prisons. The department may also bring suit under a provision of the Violent Crime Control and Law Enforcement Act of 1994 that outlaws a "pattern or practice" of civil rights abuses by law enforcement officers. Finally, thedepartment may criminally prosecute a person who violates an inmate's constitutional rights while acting "under color of state law."
Civil Enforcement Under the Civil Rights of Institutionalized Persons Act
The Civil Rights of Institutionalized Persons Act (CRIPA), enacted in 1980, authorizes the U.S. attorney general to investigate and begin litigation whenever she has reasonable cause to believe that state detainees are being subjected to egregious or flagrant violations of their constitutional rights.75 This statute also gives the attorney general the right to intervene in ongoing civil rights litigation in the federal courts.76
Between 1980 and late April 1999, the Department of Justice opened formal investigations or had taken court action in cases involving 106 jails, thirty-seven prisons, and ninety-nine juvenile facilities. It secured consent decrees or settlement agreements with thirty-four jails, thirteen prisons, and sixty-eight juvenile facilities.77 In 1996, the department opened a formal investigation into Louisiana's four secure juvenile institutions, following the release of Human Rights Watch's 1995 report Confinement of Children in Louisiana. As a result of this investigation, the department intervened in litigation that remains pending before the federal court. The department opened a similar investigation into eleven institutions in Georgia following Human Rights Watch's publication of Modern Capital of Human Rights?: Abuses in the State of Georgia in 1996, negotiating a settlement agreement with the State of Georgia in early 1998.78
"Pattern or Practice" Lawsuits
In addition to its authority under CRIPA, the department may act to protect the constitutional rights of detainees under another civil rights statute, added by the Violent Crime Control and Law Enforcement Act of 1994. Codified at Section 14141 of Title 42 of the United States Code, the statute provides that it is unlawful for any governmental authority or person acting on behalf of any governmental authority "to engage in any pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States."79
The provision appears to require a lower burden of proof than that required under CRIPA, which requires a pattern or practice of "egregious or flagrant conditions" causing grievous harm. Under Section 14141, the pattern or practice need not necessarily be "egregious" or "flagrant"; it is sufficient to show that the pattern or practice deprived a person of his or her constitutional rights or other rights secured by federal law. In addition, the department may bring suit under Section 14141 without the extensive prior consultation with the relevant department of corrections that CRIPA requires.
As used in Section 14141, "law enforcement officers" includes the corrections officers in Maryland's jails, all of whom are employees of either the local sheriffs' departments or (in the case of the Baltimore City Detention Center) the Maryland Department of Public Safety and Correctional Services. Accordingly, if it were to investigate conditions of detention in Maryland's jails, the U.S. Department of Justice could employ Section 14141 to supplement its authority under CRIPA.80
Finally, the department may initiate a criminal prosecution based upon two general civil rights provisions, sections 241 and 242 of Title 18 of the United States Code. Nevertheless, the high evidentiary burden required by these laws makes it extremely difficult to convict someone for violating a detainee's constitutional rights. To secure conviction of a public official, the department must prove that theofficial had the "specific intent" to deprive an inmate of a constitutional right.81 The specific intent requirement poses a substantial burden for the department because it must show that an official knowingly and willfully participated in violating a prisoner's constitutional right.82
Private Lawsuits and the Prison Litigation Reform Act
Individual inmates may bring their own lawsuits to challenge their conditions of confinement.83 Until recently, in fact, many abusive practices were corrected as the result of consent decrees or other settlements reached after inmates (often represented by nonprofit legal organizations or pro bono attorneys) brought class action lawsuits on behalf of themselves and all other similarly situated persons. In April 1996, however, President Clinton signed the Prison Litigation Reform Act (PRLA) into law, dramatically limiting the ability of individuals, nongovernmental organizations, and the Department of Justice to challenge abusive prison conditions through litigation.84 The act invalidates any settlement that does not include an explicit finding or statement that the conditions challenged in the lawsuit violate a federal statute or the U.S. Constitution. Because prison authorities never willingly admit such violations, such findings are extremely rare. This requirement is likely to make it difficult for parties to reach a settlement in future prison or jail reform suits, particularly because explicit findings of violations would make correctional officials vulnerable to private civil suits. In the words of Mark Soler, the result is that the act "make[s] it difficult, if not impossible, for prisoners to bring federal civil rights lawsuits to protect themselves from unconstitutional conditions of confinement."85
Between January and March 1997, four of the five state-run correctional facilities in Maryland successfully applied to have consent decrees dissolved.86 In Baltimore, the Department of Public Safety and Correctional Services has filed a motion to vacate the consent decree that has regulated the Baltimore City Detention Center since 1976.
Class Action Litigation at the Baltimore City Detention Center
Detainees of the Baltimore City Detention Center filed a class action suit, known as Collins v. Schoonfield, in the federal district court in 1971 to challenge the conditions of their confinement.87 In 1976, they initiated a second class action suit, filed under the name Duvall v. Schaefer, to challenge overcrowding.88 The district court approved the first of a series of consent decrees in these cases in 1977.
In 1981, the detainees and the city agreed to revise and consolidate the Collins and Duvall consent decrees.89 The State of Maryland took over the administration of the jail in July 1991.90 In 1993, the inmates and the state agreed once again to revise the decree.91 The 1993 Revised Consolidated Decree remained in effect until October 31, 1997, when the district court ordered enforcement of the decree suspended.92
The 1993 decree governs the detention of all detainees, including those under the age of eighteen.93 With regard to juveniles, the decree requires that juveniles be housed separately from adults and mandates that the detention center make every reasonable effort to keep juveniles separate from adults in most activities.94 It also mandates a classification system that includes separation "and protective custody, where appropriate," of "(1) homosexuals, (2) sexually vulnerable inmates, (3) youthful inmates, (4) inmates vulnerable to assault, (5) inmates incarcerated for the first time, (6) inmates held for trial on minor charges such as traffic violations, (7) mentally ill inmates, and (8) medically ill or defective inmates."95
The inmate handbook includes a brief description of the 1993 Revised Consolidated Decree, informing detainees that "Section IX on p. 26 of the Decree designates the Director of Court Compliance and the Inmate Council to monitor the implementation of the Decree. The Inmate Council may have direct access to Plaintiff's counsel for the Decree, Frank M. Danbaugh, Esquire, by telephone weekly."96 Nevertheless, Danbaugh reported that the Inmate Council had no juvenile representative. "Somebody from the juveniles' section used to come," he said. "But that's no longer permitted because then the juveniles would be mingling with the adults."97 This practice is in apparent violation of the terms of the consent decree, which describes the Inmate Council as having "representatives from eachunit."98 As a result, the children detained in the detention center are deprived of the opportunity to participate in one of the chief enforcement mechanisms created by the class action litigation.
The consent decree does not cover the booking and intake center, which houses over 1000 detainees. Because these detainees may remain in the booking and intake center's cells for the duration of their pretrial confinement, the exclusion of the booking and intake center from the consent decree is a significant limitation.99
Explaining the state's decision to move to vacate the consent decree, Assistant Attorney General Glenn Marrow told Human Rights Watch in September 1998, "Our position is that the conditions here go well beyond that which is required by the Constitution." He noted that the detention center had recently been reaccredited by the Maryland Commission on Correctional Standards.100 Later in our interview, however, Commissioner Flanagan told us that he had no serious objection to the consent decree:
I don't have a problem with the consent decree, and I've operated under it ever since I've been at this detention center. Consent decrees have brought the corrections industry a lot of progress. Without the consent decree in effect at this institution, we would not have seen the progress we've had here in the last fifteen years.101
As of October 1999, the court had not yet ruled on the state's motion to vacate the consent decree.102
National and Local Standards
The American Correctional Association (ACA) is the leading standard-setting body for juvenile and adult detention and correctional institutions in the UnitedStates. Compliance with ACA standards is strictly voluntary; facilities apply to the ACA for accreditation and undergo a lengthy application process that includes an on-site review of compliance with the applicable standards. In order to receive accreditation, a facility must demonstrate that it complies with all applicable mandatory ACA standards and at least 90 percent of its nonmandatory standards; the facility may, however, request a waiver for one or more of the standards if it establishes that "overall agency programming compensates for the lack of compliance."103
While they represent a positive effort to achieve voluntary compliance with a set of recognized standards, ACA standards do not conform in all respects to international norms. For example, ACA standards for juvenile detention facilities allow the use of isolation for up to five days, but international standards prohibit the use of isolation with children.104
In any event, only four of Maryland's twenty-four local jails are accredited by the ACA. The Washington County Detention Center warden commented that the cost of the accreditation process was a barrier to accreditation.105 In Baltimore, staff explained that the city detention center could not become accredited without significant renovations. "Because of this facility's age, it would have to undergo major reconstruction in order to meet ACA standards. The state won't do it," said Commissioner Flanagan of the Baltimore City Detention Center.106
In addition, the National Commission on Correctional Health Care (NCCHC) has released voluntary standards representing minimum requirements for health services in jails and juvenile detention centers.107 As with ACA standards, compliance with NCCHC standards is voluntary.
Finally, all of Maryland's jails are required to be accredited by the Maryland Commission on Correctional Standards.108 Although all three sets of standardsgenerally measure compliance by looking to the existence of written policies, many of the commission's standards fail to offer any guidance on the content of the written policies and procedures. For example, the standard applicable to special confinement merely recites the requirement that "a written policy and procedure" be in place, leaving it to each local detention center to decide what circumstances warrant such placement, how long detainees may be held in special confinement, and what services, activities, and programs detainees will have access to while in special confinement.109 The few substantive standards offer only minimal protection to detainees.
International Standards
The United States has ratified the two principal international treaties that protect the human rights of detainees: the International Covenant on Civil and Political Rights (ICCPR), ratified in 1992, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The United States has also signed the Convention on the Rights of the Child, obligating itself to refrain from acts which would defeat the treaty's object and purpose.110
These documents establish that under international law all individuals, whether adults or children, have the right to be free from arbitrary detention and to be protected from cruel, inhuman, or degrading treatment. Article 10(1) of the ICCPR establishes that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person," and Article 7 of the ICCPR provides that "[n]o one shall be subjected to torture or tocruel, inhuman or degrading treatment or punishment." Articles 11 and 16(1) of the Convention against Torture obligate the United States to undertake to prevent torture or cruel, inhuman, or degrading treatment while in detention. Article 37(a) of the Convention on the Rights of the Child contains a similar prohibition on torture or other cruel, inhuman, or degrading treatment or punishment.
With respect to children, Articles 10 and 14 of the ICCPR require that detained juveniles be separated from adults and receive treatment appropriate to their age; they also provide that court proceedings involving children "shall be such as will take account of their age and the desirability of promoting their rehabilitation."
The general rules contained in Articles 10 and 14 of the ICCPR are developed more fully in subsequent international documents on children. The Convention on the Rights of the Child recognizes that children are entitled to special care and assistance and that the best interests of the child must be a primary consideration in all actions concerning children. Article 37 of the convention extends specific protections to children deprived of their liberty. Under Article 37:
C no child shall be subjected to cruel, inhuman, or degrading treatment or punishment;
C the arrest and detention of a child must be "used only as a measure of last resort and for the shortest appropriate period of time";
C every child deprived of his or her liberty shall be separated from adults, with the exception of unusual cases in which it is not in the child's best interest to maintain such separation;
C in general, detained children have the right to maintain contact with their family through correspondence and visits;
C every child deprived of his or her liberty shall have the right to "prompt access to legal and other appropriate assistance," the right to "challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority," and the right "to a prompt decision on any such action."
Other international standards, notably the U.N. Rules for the Protection of Juveniles Deprived of their Liberty (U.N. Rules for the Protection of Juveniles), the U.N. Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), the U.N. Standard Minimum Rules for the Administration of Juvenile Justice, the Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), and the Body of Principles for the Protection of All Personsunder Any Form of Detention or Imprisonment (Body of Principles) provide authoritative guidance for the interpretation of these treaties.111
Even when these international standards do not in themselves give rise to rights that are enforceable in U.S. courts, they should be used as aids in interpreting domestic law. The U.S. Supreme Court has recognized, for example, that the Eighth Amendment to the U.S. Constitution "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."112 A number of federal courts have cited the Standard Minimum Rules for the Treatment of Prisoners as evidence of contemporary standards of decency.113 More generally, although the U.S. courts have not traditionally looked at international sources oflaw when deciding cases, individual members of the Supreme Court have indicated a willingness to give weight to the decisions of international tribunals.114
U.S. Reservations to International Human Rights Treaties
The United States ratified the ICCPR and the Convention against Torture with several reservations that purport to limit its international law obligations under these treaties. In general, these reservations reflect a unwillingness on the part of the United States to accept a commitment to change existing law or practice. For example, the United States has stated that it considers itself bound by the ICCPR and the Convention against Torture's prohibition on cruel, inhuman, or degrading treatment only to the extent that the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution prohibit cruel and unusual treatment or punishment.115 Additionally, in ratifying the ICCPR, the United States stated that it "reserves the right, in exceptional circumstances, to treat juveniles as adults" for the purposes of sentencing, pretrial detention, and incarceration.116 Finally, in ratifying both the ICCPR and the Convention against Torture, the United States declared the provisions of each treaty to be "non-self-executing," meaning that individuals cannot rely upon the provisions of these treaties to bring suit in U.S. courts unless the United States enacts enabling legislation.117 Regardless of whether a treaty is labeled "self-executing," however, the United States is obligated to ensure that it is executed faithfully because the U.S. Constitution provides that international treaties are part of the "supreme Law of the Land."118
Moreover, while international law does permit governments to make reservations to international treaties, such reservations cannot be incompatible with the object and purpose of the treaty.119 The U.N. Human Rights Committee, which is responsible for interpreting and monitoring compliance with the ICCPR, has stated that reservations or interpretive declarations should not "seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only in so far as they are identical, with existing provisions of domestic law."120
With regard to Article 7 of the ICCPR, the Human Rights Committee has concluded that "a State may not reserve the right . . . . to subject persons to cruel, inhuman or degrading treatment or punishment,"121 as the United States purports to do. The United States' reservation to that provision, which would limit the scope of the provision to acts already prohibited by United States law, has been cited as incompatible with the object and purpose of the ICCPR by Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden. Incompatible reservations do not invalidate the ratification of a human rights treaty if the ratifying state has indicated its general intent to be bound by the treaty as a whole; instead, the reservation is invalidated.122 Therefore, Human Rights Watch holds the United States to the full scope of Article 7 of the ICCPR, which provides that no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
The Human Rights Committee has also refused to accept reservations which effectively deprive individuals of the means to secure their rights.123 The United States' declarations that the ICCPR and the Convention against Torture are not self-executing denies individuals the means to obtain a remedy for human rights violations prohibited by these treaties if existing federal or state law does not allowthem to challenge these violations. Because these declarations effectively deny individuals access to the courts to secure the rights protected by the ICCPR and the Convention against Torture, they are incompatible with the object and purpose of the treaties.124
60 For example, a recent study found that sentencing for juveniles in criminal court took an average of 145 days from the date of arrest; in comparison, youths charged with comparable offenses in juvenile court waited 100 days to be sentenced. See Jeffrey Fagan, "Separating the Men from the Boys: The Comprative Advantage of Juvenile Versus Criminal Court Sanctions on Recidivism Among Adolescent Offenders," in James C. Howell and others, eds., A Sourcebook: Serious, Violent, Chronic Juvenile Offenders (1995), p. 245.
61 Fred Cohen, professor emeritus, School of Criminal Justice, State University of New York, quoted in "Legal Expert Urges Proactive Approach to Juveniles Serving as Adults," The Corrections Professional, December 11, 1998, p. 3.
62 Dale Parent and others, Key Legislative Issues in Criminal Justice: Transferring Serious Juvenile Offenders to Adult Courts (Washington: National Institute of Justice, 1997), p. 5.
63 Bill Sturgeon, special assistant to the director, South Carolina Department of Corrections, quoted in "The Great Debate: Should Juveniles Be Housed in Adult Institutions?," The Corrections Professional, February 6, 1998, pp. 1-6.
64 American Jail Association, Resolution on Juveniles in Jails, May 1993.
65 Human Rights Watch interview with Barry L. Stanton, director, Prince George's County Correctional Center, Upper Marlboro, Maryland, July 23, 1998.
66 Mark I. Soler, Testimony Before the Senate Youth Violence Subcommittee, Senate Judiciary Committee, on the Core Requirements of the Juvenile Justice Act and the "Violent Juvenile and Repeat Offender Act of 1997," May 6, 1997, p. 2.
67 Charles Levendosky, "A Road Back to the Dark Ages of Prison Policy," The Sun, Feb. 10, 1998, p. 17A.
68 Dale Parent and others, Key Legislative Issues, p. 5.
69 See Office of Juvenile Justice and Delinquency Prevention, Juveniles in Adult Jails and Lockups: It's Your Move (Washington, D.C.: OJJDP, 1985), p. 3.
70 Soler, Testimony before the Senate Youth Violence Subcommittee, p.2.
71 Human Rights Watch interview with Barry Stanton, July 23, 1998.
72 Rhodes v. Chapman, 452 U.S. 347 (1981). The Eighth Amendment to the U.S. Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
73 Wilson v. Seiter, 111 S. Ct. 2321 (1991).
74 Bell v. Wolfish, 441 U.S. 520 (1979). The Fourteenth Amendment's due process clause provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law." Under the Maryland due process clause, "no man ought to be taken or imprisoned or desseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." Maryland Constitution, Article 24 (1981). Although state law may provide greater protections than the minimum established by the U.S. Constitution, see generally William J. Brennan, "State Constitutions and the Protections of Individual Rights," Harvard Law Review, vol. 90 (1977), p. 489; James G. Exum, "Rediscovering State Constitutions," North Carolina Law Review, vol. 70 (1992), p. 1741 Maryland's courts have largely interpreted the protections of the Maryland Declaration of Rights to be virtually identical to their federal counterparts in the Bill of Rights, see Stephen J. Shapiro, "Suits Against State Officials for Damages for Violations of Constitutional Rights: Comparing Maryland and Federal Law," 23 U. Balt. L. Rev. 423, 424-25 (1994).
75 Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997a(a).
77 Of the cases listed, the DOJ has closed investigations in fifty jails, twenty-eight prisons, and twenty juvenile facilities. In several cases, the number of facilities initially investigated under CRIPA was lower than the number of facilities covered by the resulting consent decree. For example, the DOJ initially investigated eight juvenile facilities in Puerto Rico; twenty are covered by the CRIPA consent decree. Similarly, the DOJ initially investigated eight juvenile facilities in Kentucky and nine in Georgia; it eventually secured consent decrees covering thirteen Kentucky facilities and thirty-one in Georgia. Letter from Dana Schoenberg, staff attorney, Special Litigation Section, Civil Rights Division, U.S. Department of Justice, May 3, 1999.
78 See Letter from Isabelle Katz Pinzler, acting assistant attorney general, Civil Rights Division, U.S. Department of Justice, to Mike Foster, governor, State of Louisiana, June 18, 1997; Letter from Bill Lann Lee, acting assistant attorney general, Civil Rights Division, U.S. Department of Justice, to Zell Miller, governor, State of Georgia, February 13, 1998; Memorandum of Agreement Between the United States and the State of Georgia ConcerningGeorgia Juvenile Justice Facilities, March 31, 1998.
80 The department has employed Section 14141 in a number of corrections settings, including its Georgia and Louisiana investigations. In addition, it noted in an investigation of Michigan's prisons that "the pattern or practice of sexual abuse of women inmates by guards" violates both Section 14141 and CRIPA. Letter from Deval Patrick, assistant attorney general, Civil Rights Division, U.S. Department of Justice, to John Engler, governor, State of Michigan, March 27, 1995.
81 See Screws v. United States, 325 U.S. 91, 103 (1945); United States v. Guest, 383 U.S. 745, 760 (1966).
82 See Screws, 325 U.S. at 101-103.
83 Such suits are often brought under the Civil Rights Act of 1871, as amended, which authorizes legal action against "[e]very person who, under color of any statute, ordinance, regulation, custom or usage . . . subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983 (as amended by Pub. L. No. 104-317, § 309(c), 110 Stat. 3853 (1996)).
84 The Prisoner Litigation Reform Act was enacted as Title VIII of the Omnibus Consolidated Recissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996), and is codified at 18 U.S.C. § 3226.
85 Mark Soler, president, Youth Law Center, quoted in Proceedings from the National Conference on Juvenile Detention, December 1996, p. 31.
86 Kate Shatzkin, "4 Md. Prisons Freed from Consent Decrees; A 1995 Act of Congress Led to Termination After More than a Decade," The Baltimore Sun, Mar. 18, 1997, p. 1B.
87 Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972) (finding that conditions in the city jail violated inmates' constitutionally protected rights).
88 Duvall v. Schaefer, Civil Action No. K-76-1255 (D. Md. docketed Aug. 24, 1976) (initiated by a June 14, 1976, letter from inmate Jerome Duvall to the federal district court). See also Duvall v. Schaefer, Civil Action No. K-76-1255, 1988 U.S. Dist. LEXIS 18298 (D. Md. Aug. 30, 1998) (1988 Revised Consolidated Decree).
89 Since that time, the combined case has been known as "Duvall v." the sitting governor (currently Parris D. Glendening).
90 House Bill No. 1059, 1991 Laws of Maryland ch. 59.
91 Duvall v. Schaefer, Civil Action No. K-76-1255 (D. Md. July 9, 1993) (1993 Revised Consolidated Decree).
92 See generally Frank M. Dunbaugh, "Prospecting for Prospective Relief: The Story of Seeking Compliance with a Federal Court Decree Mandating Humane Conditions of Confinement in the Baltimore City Jail," The Prison Journal, Fall-Winter 1990, pp. 57-73; Plaintiff's Memorandum in Opposition to the Defendant's Motion to Terminate the 1993
Revised Consolidated Decree, Duvall v. Glendening, No. JFM-94-2541, pp. 3-15 (D. Md. filed July 30, 1998) (summarizing the history of the litigation).
93 The 1993 Revised Consolidated Decree defines the plaintiffs in the litigation as "that class of persons, whether men or women, adults or juveniles, pretrial detainees or convicts, who are or who will in the future be confined to the Baltimore City Detention Center." 1993 Revised Consolidated Decree, pp. 4-5. "Juvenile" is defined as "a person under the age of 18 years." Ibid., p. 6.
94 The decree provides:
Juvenile residential sections shall only house inmates up to eighteen (18) years of age. No juveniles shall be housed with adult prisoners. Every reasonable effort shall be made to keep juveniles separate from adult prisoners in all activities, except that juvenile and adult inmates may participate together in self-help programs, if their placement is voluntary and is approved by the Warden or designee.
Ibid., p. 12.
96 Division of Pretrial Detention and Services, Inmate Handbook 1996-1996, p. 29 (June 1996). The handbook also gives Mr. Danbaugh's address.
97 Human Rights Watch telephone interview with Frank M. Dunbaugh, May 6, 1998.
98 1993 Revised Consolidated Decree, p. 6. In signing the decree, the state "recognized" the "existence and role of the Inmate Council, as representative of the inmates of the Detention Center." Ibid., p. 7.
99 The booking center is not covered by the consent decree because the decree specifically provides that "[a]ny housing space not described in Appendix B is not part of the Detention Center, and persons detained in housing outside the Detention Center shall not be considered inmates for the purposes of this Decree." Ibid., p. 5.
100 Human Rights Watch interview with Glenn Marrow, September 23, 1998.
101 Human Rights Watch interview with LaMont Flanagan, September 23, 1998.
102 Human Rights Watch telephone interview with Glenn Marrow, October 8, 1999.
103 American Correctional Association, Standards for Adult Local Detention Facilities, 3d ed. (Latham, Maryland: ACA, 1991), pp. xvii.
104 Compare American Correctional Association, Standards for Juvenile Detention Facilities, 3d ed. (Latham, Maryland: ACA, 1991), p. 67, with U.N. Rules for the Protection of Juveniles, Article 67.
105 Human Rights Watch interview with M. Van Evans, warden, Washington County Detention Center, July 22, 1998.
106 Human Rights Watch interview with LaMont Flanagan, September 23, 1998.
107 See National Commission on Correctional Health Care, Standards for Health Services in Jails (Chicago: NCCHC, 1996); National Commission on Correctional Health Care, Standards for Health Services in Juvenile Detention and Confinement Facilities (Chicago: NCCHC, 1995).
108 Md. Ann. Code, Article 41, § 4-401(b)(7).
109 Maryland Commission on Correctional Standards, Standards Manual: Standards, Compliance Criteria, and Compliance Explanations for Adult Detention Centers (Baltimore: Commission on Correctional Standards, 1995), Standard ADC.01-P.
110 International Covenant on Civil and Political Rights (ICCPR), opened for signature Dec. 19, 1966, G.A. Res. 2200A (XXI), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted December 10, 1984, G.A. Res. 39/46, U.N. Doc. A/RES/39/46, 1465 U.N.T.S. 85 (entered into force June 26, 1987); Convention on the Rights of the Child, adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (entered into force September 2, 1990). The signatory's obligation not to defeat the object and purpose of a treaty is a recognized principle of customary international law, articulated by the International Court of Justice in a 1951 case and codified in the Vienna Convention on the Law of Treaties. See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15; Vienna Convention on the Law of Treaties, Article 18(a), 1155 U.N.T.S. 331 (concluded May 23, 1969; entered into force January 27, 1980).
111 U.N. Rules for the Protection of Juveniles Deprived of their Liberty (U.N. Rules for the Protection of Juveniles), G.A. Res. 45/113, annex, 45 U.N. GAOR Supp. (No. 49A), p.205, U.N. Doc. A/45/49 (1990); U.N. Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), G.A. Res. 45/112, annex, 45 U.N. GAOR Supp. (No. 49A), p. 201, U.N. Doc. A/45/49 (1990); U.N. Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), G.A. Res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53), p. 207, U.N. Doc. A/40/53 (1985); Standard Minimum Rules for the Treatment of Prisoners, U.N. ECOSOC Res. 663C (XXIV), U.N. Doc. E/3048 (1957), amended by ECOSOC Res. 2076, U.N. Doc. E/5988 (1977); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), G.A. Res. 43/173, U.N. Doc. A/43/49 (1988). On the use of these instruments as authoritative guidance for the interpretation of binding treaty standards, see, for example, the U.N. Human Rights Committee's decision in Mukong v. Cameroon, citing various violations of the Standard Minimum Rules in ruling that the complaintant was subjected to cruel, inhuman, and degrading treatment. No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991.
112 Trop v. Dulles, 356 U.S. 86, 101 (1958). The U.S. Supreme Court has "recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual." Thompson v. Oklahoma, 487 U.S. 101, 830 n.31 (1988) (citing Trop, 356 U.S. at 102 and n.35; Coker v. Georgia, 433 U.S. 583, 596 n.10 (1977); Enmund v. Florida, 458 U.S. 781, 796-97 n.22 (1982)). In Stanford v. Kentucky, however, the Court "emphasize[d] that it is American conceptions of decency that are dispositive, rejecting the contention . . . that the sentencing practices of other countries are relevant." 492 U.S. 361, 370 n.1.
113 See Estelle v. Gamble, 429 U.S. 97, 103-4 & n.8 (1976); Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392, 396 (2d Cir. 1975); Williams v. Coughlin, 875 F. Supp. 1004, 1013 (W.D.N.Y. 1995); Lareau v. Manson, 507 F. Supp. 1177, 1187-89 & n.9 (D. Conn. 1980). In Lareau, the federal district court described the Standard Minimum Rules as "an authoritative international statement of basic norms of human dignity and of certain practices which are repugnant to the conscience of mankind." Ibid.
114 On a tour of European judicial institutions in July 1998, U.S. Supreme Court Justice Sandra Day O'Connor reportedly commented, "`We certainly are going to be more inclined to look at decisions of [the European Court of Justice] on substantive issues . . . and perhaps use them and cite them in future decisions.'" U.S. Supreme Court Justice Stephen Breyer noted, "`Lawyers in America may cite an EU ruling to our court to further a point, and this increases the cross-fertilization of U.S.-EU legal ideas.'" Elizabeth Greathouse, "Justices See Joint Issues with the EU," Washington Post, July 9, 1998, p. A24.
115 See Multilateral Treaties Deposited with the Secretary-General: Status as at 26 May 1999, U.N. Doc. ST/LEG/SER.E/, as available on <http://www.un.org/Depts/Treaty> on June 9, 1999.
117 See ibid. The United States attached a total of five reservations, five understandings, and four declarations to the ICCPR. The United States also attached three reservations, five understandings, and two declarations to its ratification of the Convention Against Torture.
118 United States Constitution, Article VI, clause 2. "Article VI of the [U.S.] Constitution provides expressly for lawmaking by treaty: treaties are declared to be the supreme law of the land. The Framers intended that a treaty should become law ipso facto, when the treatyis made; it should not require legislative implementation to convert it into United States law." Louis Henkin, "U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker," American Journal of International Law, vol. 89 (1995), p. 346.
119 See Vienna Convention on the Law of Treaties, Article 19(3).
120 U.N. Human Rights Committee, General Comment 24, on Reservations to the ICCPR, para. 19, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994). Moreover, international bodies may decline to recognize reservations that are vague or imprecise. See, for example, Temeltasch v. Switzerland, App. No. 9116/80, 31 Eur. Comm'n H.R. Dec. & Rep. 138, 145-49 (1983).
121 U.N. Human Rights Committee, General Comment 24, para. 8.
122 See generally William A. Schabas, "Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?," Brooklyn Journal of International Law, vol. 21 (1995), pp. 277-325.
123 U.N. Human Rights Committee, General Comment 24, para. 11.
124 The United States's statements that it regards these treaties as non-self-executing are evaluated for their compatability with the treaties' object and purpose even though the statements are styled "declarations" rather than "reservations." The U.N. Human Rights Committee has stated, "Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation." Ibid., para. 3.