Human Rights Developments
The sharp differences in the way African-Americans and whites reacted to the acquittal of African-American celebrity O.J. Simpson of murder charges highlighted the systematic abuse of minority citizens by police and ongoing racism in the criminal justice system. The experience of discrimination at the hands of law enforcement officials and courts led many minorities to deeply distrust institutions of justice. In addition, minority rights were weakened over the year by three Supreme Court decisions that reduced protections in voting, education, and employment, and by a concerted Republican-led attack on "affirmative action" programs designed to increase the representation of minorities in workplaces and higher education.
Concerns over police misconduct throughout the country grew during the year. Police officers in a number of cities were accused of serious human rights violations, including murder, brutality, and rape, with many victims asserting that these abuses were racially motivated. Despite the seriousness of the allegations, far too often police leadership as well as state and federal prosecutors failed in their duties to vigorously pursue and prosecute cases of police misconduct.
The debate over racial disparities in prison terms for drug offenses erupted into public view in October when inmates rioted in four federal prisons after Congress rejected the recommendations of the United States Sentencing Commission to modify the differential treatment between crack and powder cocaine in mandatory federal drug sentences. Among the commission's other disturbing findings: although whites and African-Americans used both forms of cocaine, whites were arrested and prosecuted mainly for federal powder cocaine crimes while African-Americans made up 90 percent of those convicted for crack cocaine offenses.
The federal crimes of possession and distribution of crack cocaine carried much harsher penalties than similar offenses involving powder cocaine. This two-tiered sentencing scheme, though facially neutral, had a significant discriminatory impact on the African-American community. The disparate impact of drug laws on African-Americans was heightened by the pattern of narcotics law enforcement, which was largely concentrated in minority neighborhoods in U.S. cities. As a result African-Americans were arrested, prosecuted, convicted, and imprisoned for drug crimes far out of proportion to their numbers among the general population or the population of drug users, and were the principal recipients of the harsher sentences that applied to crack use and sale.
The April 19 bombing of the federal building in Oklahoma City at first caused a xenophobic reaction, as many commentators assumed that Islamic militants were responsible. Although home-grown adherents of radical right-wing movements were ultimately charged in the case, the Clinton administration and members of Congress nevertheless exploited public fear and anxiety over the bombing to press for passage of a repressive "anti-terrorism" bill that would establish new courts, using secret evidence, to deport non-citizens suspected of "terrorist" activity, and limit inmates condemned to death to one appeal in federal courts. The administration, having succeeded in 1994 in expanding to sixty the number of federal crimes for which the death penalty may be imposed, moved quickly to seek it in the Oklahoma case. Elsewhere in the United States the pace of executions quickened, with New York's new governor signing a bill that ended the state's longstanding moratorium on executions. The national total of forty-two executions by the end of September broke the modern annual record of thirty-eight set in 1993.
The increasing use of the death penalty was particularly troubling in light of extensive evidence that showed it to be administered in a racially discriminatory manner at both state and federal levels. For example, all ten of the defendants approved by the attorney general for capital prosecution under the Federal Anti-Drug Abuse Act were African-Americans, and, at the state level, racial minorities accounted for almost 50 percent of all those executed during the first ten months of 1995.
Another highly disturbing aspect of death sentencing in the United States was the continuing execution of juvenile offenders_convicted of crimes committed before the age of eighteen_in blatant violation of international legal instruments, including the International Covenant on Civil and Political Rights (ICCPR), the American Convention of Human Rights, and the U.N. Convention on the Rights of the Child. The United States faced strong international condemnation for this practice.
The trend to curb the due process rights of inmates continued during 1995. Prisoners in the United States traditionally had three successive procedures to challenge their convictions or sentences: appellate review, state habeas corpus review, and federal habeas corpus review. In recent years, the courts as well as state and national legislatures have increasingly restricted the availability of federal habeas corpus review for both state and federal inmates. Congressional initiatives in 1995, including the anti-terrorism legislation and a revised crime bill, would, if passed and signed into law, restrict the federal appeals process for all condemned federal and state inmates and make it harder for federal judges to reverse convictions or sentences handed down by state courts.
The most significant human rights abuses in U.S. prisons during 1995 stemmed from the exploding prison population and concomitant extreme overcrowding of prison facilities. In August 1995, the U.S. Justice Department announced that the nation's prison population had soared above the one-million mark for the first time, more than doubling since 1985. The increases reflected tougher sentencing for a range of crimes as well as a greater proportion of drug arrests leading to longer prison terms. Overcrowding meant that most facilities built with single occupancy cells had two prisoners per cell and prison dormitories were often triple-bunked. Overcrowding also led to a deterioration in physical and sanitary conditions, the spread of airborne diseases, and reduced levels of basic necessities such as staff supervision and delivery of health services.
In another disturbing and regressive development, the state of Alabama reintroduced prison chain-gangs after a hiatus of some thirty years. Groups of prisoners shackled and chained together at the ankles cleared ditches, cut grass, picked up litter, and mended fences for twelve hours a day, five days a week, with hourly water breaks and a brief lunch, under the supervision of armed guards. Such treatment violates the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the ICCPR's prohibition against degrading treatment of prisoners.
The federal and state prison systems in recent years have made increasing use of super-maximum security facilities, informally known as "supermaxes" or "maxi-maxis." Supermaxes subject prisoners to extreme social and sensory deprivation, including near-total isolation from other prisoners, surroundings designed to reduce visual stimulation, minimal or no time outdoors, frequent denial of reading material, and complete lack of recreational facilities. At one such prison facility, the Maximum Control Complex in Westville, Indiana_which has identical cell blocks centered on control booths from which all the cells are visible_a number of inmates interviewed by a Human Rights Watch team in June 1995 complained of feeling like experimental guinea pigs in a laboratory. Prisoners were never in the presence of other people, including fellow inmates, except during rare visits or when being moved by guards.
In January 1995, conditions at the Security Housing Unit (SHU) of another notoriously harsh prison, California's Pelican Bay facility, were held, in a landmark federal court ruling, to "cross the constitutional line." The strongly worded opinion detailed eleven shockingly violent assaults on inmates by guards and described the SHU as a "windowless labyrinth of cells and halls sealed off from the outside world," where prisoners routinely endured conditions of total social isolation and sensory deprivation that "may press the outer bounds of what most humans can psychologically tolerate." Despite findings like these, legislation to curb the power of the courts to order remedies in cases involving inhumane and unconstitutional conditions in adult prisons and juvenile detention facilities was nearing congressional approval.
Over the year Congress also took steps that would impair freedom of expression in the country, including a proposed constitutional amendment_the first revision of the First Amendment right to free speech in U.S. history_to permit prosecution of protesters who burn or desecrate the nation's flag and a pending bill to restrict "indecent" expression on the Internet.
Gender discrimination remained a pervasive problem in the United States during 1995. U.S. constitutional and statutory law consistently failed to provide adequate legal protection for women who, particularly in the sectors of employment, health care, and prison facilities and programs, faced discrimination on account of their sex. Under the United States Constitution, as interpreted by the Supreme Court, discrimination based on gender merited a lower level of judicial scrutiny than discrimination based on race or national origin. Women were also inadequately protected by U.S. statutory law, since many U.S. anti-discrimination statutes failed to proscribe gender-based classifications. Although gender discrimination law applied equally to men and women, in practice women were far more likely to receive inferior treatment on account of their sex. Less stringent than the standard applicable to discrimination by race or nationality, the U.S. legal standard for sex discrimination violated article 3 of the International Covenant on Civil and Political Rights, which mandates equal access to civil rights protections for men and women.
Immigrants to the United States were targets of campaigns to limit their rights in 1995. Although immigration policy has historically fallen within the domain of the federal government, state legislatures increasingly asserted control over certain aspects of immigration with a view to circumvent federally mandated due process rights for non-citizens. For example, despite a Supreme Court ruling that public assistance could not be withdrawn without a prior hearing, California's Proposition 187 statute, approved in a November 1994 referendum, instructed state facilities to cut off medical aid, welfare funds, and schooling for supposed illegal migrants without explicitly providing for a hearing. Major provisions of Proposition 187 were judicially enjoined in December 1994, pending a determination of their constitutionality. The statute, as applied, would potentially violate the anti-discrimination principle of article 26 of the ICCPR.
Meanwhile, as immigration issues moved to the forefront of the national debate, undocumented immigrants, refugees, legal residents and U.S. citizens continued to be subjected to abuse by Border Patrol agents and inspectors of the U.S. Immigration and Naturalization Service (INS), including severe beatings and arbitrary detentions. Victims of abuse faced many barriers to filing or pursuing complaints due to structural flaws in the INS's investigatory and disciplinary processes. As a result of its defective complaint and agent review procedures the agency consistently failed to enforce its stated policies and hold abusive agents accountable. Nevertheless, the Clinton administration and Congress poured new resources into the INS to vastly increase the number of agents, without requiring sufficient improvements in the agency's abysmal human rights record.
In a positive development in 1995, the INS convened a Citizens' Advisory Panel (CAP) in April, June, and October. Although the CAP directly heard the concerns of human rights advocates and focused on improving the INS's flawed complaint intake system, the INS countered the momentum for accountability by pushing to gain sole control of the complaint and agent review process and advocating the elimination of the oversight function performed by the Office of the Inspector General for the Department of Justice. The panel was expected to submit formal recommendations to the attorney general in early 1996.
On May 2, 1995, the United States announced its intention to grant humanitarian parole to most of the approximately 21,000 Cuban asylum seekers interned since August 1994 at the U.S. naval base in Guantánamo Bay, Cuba. At the same time, the U.S. announced a new policy, adopted after negotiating a migration agreement with the Cuban government, to repatriate automatically all Cubans intercepted at sea. Those claiming to fear persecution would be instructed to apply for refugee status through the U.S. Interests Section's already overwhelmed in-country processing program in Havana. The new policy initially did not permit adequate screening to protect Cubans qualifying as refugees from involuntary repatriation as required by the international law principle of non-refoulement. The administration subsequently expanded the shipboard screening procedures instituted under the policy to consider the internationally recognized definition of a refugee. Concerns remained, however, about the difficulties in assuring a fair hearing posed by shipboard, rather than land-based, screening and the mistaken reliance on in-country refugee processing as a substitute for strict adherence to the the principle of non-refoulement.
In January, following the return to office of President Jean-Bertrand Aristide, the U.S. initiated forcible repatriations of over 3,700 Haitians from detention camps at Guantánamo, despite ongoing security concerns in Haiti. The cursory interview U.S. officials accorded the Haitians immediately prior to their repatriation was publicly decried by the United Nations High Commissioner for Refugees as insufficient protection from refoulement. In addition to the Guantánamo repatriations, the U.S. returned roughly 200 Haitians intercepted on the high seas between October 1994 and October 1995 without any refugee screening, denying them even the shipboard procedures in place for Cubans interdicted in similar circumstances.
The Right to Monitor
The Role of the International Community
The scheduling of Mumia Abu-Jamal's execution by the state of Pennsylvania for August 17, 1995, sparked an international campaign for clemency in his case. Abu-Jamal, a former radio journalist and African-American political activist, had remained on death row since 1982 when he was convicted_amid widespread accusations of racial bias in the courtroom, inadequate representation, and prosecutorial misconduct_of the 1981 killing of a Philadelphia police officer. Abu-Jamal continued to proclaim his innocence. The governments of Germany and Belgium appealed to U.S. authorities on his behalf, President Chirac authorized the French ambassador to Washington to take "any step that might help to save the life of Mr. Mumia Abu-Jamal," and Italian parliamentary deputies passed a Lower House motion urging their government to press the United States to lift Abu-Jamal's death sentence. Although the governor of Pennsylvania rejected all intercessions, a court of common pleas judge granted a stay of execution to enable Abu-Jamal to complete his appeals process.
The Work of Human Rights Watch
In March, on the eve of the United Nations Human Rights Committee's first hearing on U.S. compliance with the ICCPR, Human Rights Watch and the American Civil Liberties Union (ACLU) submitted to the committee a detailed memorandum evaluating the United States record and criticizing the U.S. government's first periodic report to the committee. Human Rights Watch and the ACLU noted that by qualifying its ratification of the ICCPR through a series of reservations, declarations, and understandings, and by designating the treaty non-self-executing, the United States had effectively denied its citizens the rights conferred by it. Although the U.S. justified this virtual nullification of ICCPR rights for Americans on grounds of the sufficiency of domestic legislation, many convention provisions actually provided broader protection than was available under U.S. law, as interpreted by the Supreme Court.
The U.N. Human Rights Committee had taken the same view as Human Rights Watch on the U.S. conditions on ratification, in a November 1994 General Comment highly critical of states parties' attaching reservations to the ICCPR. In its March presentation to the committee, the U.S. castigated this position as going "much too far" and insisted that "reservations are an essential part of a state's consent to be bound" that could not "simply be erased."
Human Rights Watch and the ACLU found significant shortcomings in U.S. compliance with ICCPR standards in many substantive areas, including racial and gender discrimination, prison conditions, administration of the death penalty, treatment of Haitian and Cuban detainees, children's rights, freedom of expression, the rights of minority language speakers, limitations on aliens' rights to due process, and prisoners' rights.
Human Rights Watch similarly pressed the U.S. government regarding compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). In October, in a joint letter and report to Secretary of State Warren Christopher, Human Rights Watch and two colleague organizations_the International Human Rights Law Group and the NAACP Legal Defense Fund_identified four issues of race discrimination in the criminal justice system and urged the United States to address them in its forthcoming submission to the CERD Committee. The three organizations' Summary of Concerns About Race Discrimination in the U.S. Criminal Justice System lauded U.S. ratification of the CERD in 1994 as a first step toward applying international human rights law to the problem of racial discrimination in the country, but opposed the Clinton administration's declaration_similar to the one entered for the ICCPR_that the convention was not self-executing.
The three groups urged that the United States' first annual report as well as subsequent submissions to the CERD Committee include extensive statistical data concerning the experience of racial minorities within the justice system, and identified four areas where data would be particularly helpful in evaluating the disparate racial impact of specific policies: super-maximum security prisons, administration of the death penalty, police misconduct, and drug prosecutions. With respect to the disproportionate assignment of racial minorities to supermaximum security prisons, race disparities in the administration of the death penalty, and police abuse of minority citizens, Human Rights Watch and the two other organizations asked the executive branch to provide the CERD Committee with data on the numbers and racial backgrounds of nonviolent inmates assigned to supermax prison units, statistics revealing the racial breakdown of capital prosecutions and convictions, and similar statistics drawn from a sampling of local police departments regarding police stops, arrests, and physical confrontations between police and civilians. In addition, the joint report pointed out that there have been numerous domestic legal challenges to the racially disparate impact of the powder cocaine/crack distinction in federal sentencing statutes and guidelines, but almost all have foundered on the lack of sufficient evidence of intentional discrimination. CERD condemns laws and practices with a racially discriminatory effect, regardless of intent, and requires the elimination of laws with an unjustifiable adverse impact on particular racial or ethnic groups, so Human Rights Watch and its colleague groups urged that the United States' report to the CERD Committee address the issue of the disparate racial impact of U.S. drug laws and describe any intended remedial steps.
During 1995, Human Rights Watch undertook investigations and advocacy efforts on several facets of the administration of capital punishment. In a March 1995 report, United States: A World Leader in Executing Juveniles, the Human Rights Watch Children's Rights Project urged the U.S. government to abolish the death penalty for both juvenile and adult offenders and recommended that, as a first step toward abolition, the United States enact legislation to end executions of persons who, at the time they committed their crimes, were below the age of eighteen, and that federal and state prosecutors refrain from seeking the death penalty in such cases. The Children's Rights Project report pointed out that the harsh treatment accorded juvenile offenders in the criminal justice system contrasted sharply with U.S. civil laws, which were based on the premise that minors generally do not have the same level of intellectual and psychological maturity as adults and hence require special protections.
During the year Human Rights Watch sent letters to Pennsylvania Gov. Thomas Ridge and Superintendent James Price of the Waynesburg State Correctional Institute to express grave concern about the then-impending execution of Mumia Abu-Jamal and to protest the curbs imposed on his free expression rights by prison authorities. In the letter to Governor Ridge, Human Rights Watch expressed its opposition to the death penalty in all circumstances and urged him to withdraw the execution warrant against Abu-Jamal. Although the organization did not take a position on the underlying criminal charges against Abu-Jamal, it noted serious concerns about the fairness of his trial, particularly the heavy reliance during the sentencing phase on information regarding his political beliefs and associations.
In September, Human Rights Watch joined with Physicians for Human Rights and several members of the medical, legal, academic, and public service communities in a letter calling on the American Psychiatric Association (APA) to formulate and articulate its own definitive stance on the ethics of psychiatrists assessing the competence of prisoners for purposes of approving their execution. The action was in response to the APA's support for an argument that physician involvement in the administration of the death penalty is not necessarily unethical, propounded in a report by the American Medical Association's Council on Ethical and Judicial Affairs (CEJA), which endorsed such psychiatric assessment. The letter reiterated the position we took in the 1994 Human Rights Watch/Physicians for Human Rights/American College of Physicians report, Breach of Trust, that physician participation in capital punishment conflicts acutely with the caring and curing missions that are central to the medical profession.
Human Rights Watch persisted in its work to end human rights abuses by INS Border Patrol agents and inspectors on the premise that until abusive officials were held accountable for their actions, rights violations along the country's southern borders would continue. In our third report on the issue since 1992, Crossing the Line: Human Rights Abuses Along the U.S. Border with Mexico, Human Rights Watch revealed that INS Border Patrol agents deployed along the western segment of the U.S.-Mexico border continued to abuse their authority and committed serious human rights violations including murder, rape, unjustified shootings, severe beatings, and arbitrary detentions, with impunity. The April 1995 report also documented physical abuse and harassment perpetrated by INS inspectors at U.S. border posts in Arizona and California, which, though less endemic than border patrol violence, occurred in a similar climate of impunity.
In response to our 1993 report on border violations, the INS had assured Human Rights Watch that it would address the issue of agent misconduct, which had developed into one of the worst police abuse problems in the country. The latest report exposed failure by the INS to address the problem adequately; the few reforms undertaken were of a cosmetic nature and remained largely ineffective. Although during the year the INS periodically convened a Citizens' Advisory Panel (CAP) required by law, it continued to reject the option of independent civilian review that Human Rights Watch consistently advocated in all three reports.
Human Rights Watch staff testified at the first two, and submitted documentation for all three, CAP meetings. The organi-zation's initial concerns about the CAP's limited mandate were mitigated when nongovernmental members of the panel addressed serious shortcomings in the INS's complaint and review procedures and the inadequacy, as a result of increased hiring, of training programs for INS supervisors, a fact reportedly admitted by the INS at CAP's October meeting.
In view of the enduring problem of police abuse throughout the U.S., Human Rights Watch initiated a nationwide field research project on police violence and the barriers to accountability. The organization also stepped up advocacy efforts for more extensive and effective local civilian review of police practices. In October, Human Rights Watch testified before the City Council of the District of Columbia opposing the council's earlier decision to suspend the Civilian Complaint Review Board and transfer its operating budget to the internal review apparatus of the Metropolitan Police Department itself. Human Rights Watch stressed that, were the police allowed to investigate allegations of police misconduct without any external oversight, the customs of solidarity within the ranks of the force would serve to weaken any pressure for accountability. The organization also made several concrete recommendations to streamline and invigorate the civilian panel's operations and to heighten its impact.
An October 1995 Human Rights Watch Children's Rights Project report, United States: Children in Confinement in Louisiana, documented the abusive conditions in which children were confined in Louisiana's four post-adjudication correctional facilities, in violation of international legal standards and, in important respects, national laws as well. The report disclosed that children at all four facilities were periodically restrained by handcuffs, regularly physically abused by guards, and kept in isolation for long periods of time. Moreover, being housed in dormitories of forty to fifty children with no privacy, even when using toilet facilities, stripped the child detainees of a basic sense of dignity. In addition, virtually every child interviewed by Human Rights Watch complained of hunger. We made several recommendations to end the physical and psychological abuse of children and to promote the goal of rehabilitating them in an environment that fosters respect and dignity, including the establishment of a functioning complaint mechanism to enable the children to seek redress for abuse and the provision of adequate programming to educate, train, and counsel them.
Between 1993 and late 1995, the Human Rights Watch Women's Rights and Prison Projects investigated a grave and potentially explosive national problem of custodial sexual misconduct in United States prisons. Human Rights Watch found that in state women's prisons in California, Georgia, Illinois, Michigan, New York, and the District of Columbia, ill-trained male officers guarded female prisoners with little appropriate guidance or oversight regarding sexual misconduct. The result was a highly sexually charged custodial environment in which the officers further stepped over the line with respect to the prisoners and engaged in rape, sexual assault, other forms of sexual contact, and inappropriate visual surveillance of the women while they were dressing, showering, or using the toilet. A detailed report on these findings was in preparation at this writing. Given the steadily rising female prison population_the number of women in prison grew by 75 percent between 1987 and 1992_the national and state governments must acknowledge the magnitude of the problem of custodial sexual abuse and devote the necessary financial and human resources to secure its speedy eradication.