Human Rights Developments
During the year, human rights violations relating to immigration practices, police abuse, custodial treatment and conditions, the death penalty, and issues of discrimination continued in the United States. The effects of new laws restricting the rights of asylum seekers arriving in the country, prisoners seeking to challenge unconstitutional treatment or conditions, and defendants in capital cases became apparent. Meanwhile, a torture allegation made by a Haitian immigrant against New York City police officers in August alarmed city residents, with even the most stalwart supporters of the police acknowledging abuse and accountability problems within the force. And, for the first time since four Vietnam anti-war protesters were shot and killed at Kent State University in 1970, a U.S. citizen was shot dead on U.S. soil by on-duty military personnel-this time by Marines on anti-drug patrol near the U.S.-Mexico border.
Immigration Policy and Practice
Implementation of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 began in April, causing widespread confusion. The law's new expedited removal provisions hindered the ability of asylum seekers to exercise their internationally protected right to seek and enjoy asylum and undermined the prohibition on the expulsion or return (refoulement) of refugees as set out in international human rights treaties and U.S. law. Individuals arriving at a port of entry during 1997 with fraudulent documents, or none, were questioned by immigration inspectors to ascertain whether they should be allowed to make cases of credible fear of return to their countries. The asylum seeker was not allowed access to legal counsel at the time of this determination, which took place on the spot after typically long international flights and, in some cases, immediately following traumatic experiences. Despite requests from several nongovernmental organizations and the United Nations High Commissioner for Refugees, the U.S. Immigration and Naturalization Service (INS) did not allow access or independent monitoring during this critical decision-making process.
If asylum seekers were allowed to make a credible-fear claim, they were required to prepare their cases in a very short time (sometimes days) while in detention, without essential documentation or guarantees of legal advice. During the credible-fear interview, asylum seekers have a right to counsel, but in many instances these representatives were not allowed to participate. Human Rights Watch learned of individuals with credible claims who had been returned to their countries of origin following these determinations. If an individual was successful in the credible-fear hearing, he or she would usually be detained for an undetermined time pending an asylum hearing.
During the year, Congress considered legislation to focus on the plight of religiously persecuted groups around the world, and the bills included provisions to allow those persecuted on religious grounds to bypass the new expedited removal proceedings, thus apparently acknowledging the lack of appropriate protections for those seeking asylum under the new law. Critics of the legislation also opposed its preferential treatment for one group of asylum seekers over all others.
The 1996 immigration law also promoted the use of detention of immigrants and refugees as a central aspect of U.S. policy. The bill provided for the detention of most individuals arriving at ports of entry without proper documentation, and created new categories of immigrants with criminal backgrounds whose detention was mandatory. The increased numbers of detainees strained existing detention facilities, leading the INS to house almost half of all its detainees in local jails.
The increasing reliance on privately run contract facilities or local jails to hold individuals in INS custody raised serious questions about INS oversight and standards required of the facilities. Human Rights Watch visited jails holding INS detainees, and among their complaints were poor physical conditions, inadequate access to legal assistance, inadequate information from the INS regarding their status, mixing with criminal populations in the jails, poor health care, physical mistreatment, and isolation from families as they were often detained in remote areas thousands of miles from where they were originally apprehended.
Treatment of minors in INS custody raised human rights concerns, as the rights of hundreds of detained children in California and Arizona were violated. Human Rights Watch found that INS treatment of minor children detained with no responsible adult present ignored both international law and INS regulations and policy by its failure to inform detained children of their legal rights, interference with children's attempts to obtain legal representation, and long-term detention of children in high-security facilities with prison-like conditions.
Human rights violations, such as unjustified shootings, sexual assaults, and beatings, continued to be committed by the U.S. Border Patrol and other immigration officials along the U.S.-Mexico border. A Citizens' Advisory Panel was appointed by the Justice Department to recommend long-overdue reforms and monitor implementation, yet after more than two years of existence, the panel failed to submit a report to the U.S. attorney general with its recommendations, although in October the INS claimed that a report would be issued shortly. It was not clear whether the panel, or a similar yet differently staffed advisory committee, would continue to meet to hold more hearings or make recommendations for reform on this issue. The panel's inability to complete its task confirmed the view of many human rights groups that external, independent citizen review of complaints against INS personnel was the only way to gauge the extent of abusive conduct and to ensure accountability when violations occur.
In the meantime, the number of Border Patrol agents increased dramatically during 1997, from approximately 3,400 agents in fiscal year 1993 to a force of 6,000; the force was projected to grow to 10,000 agents by the year 2001. This was cause for some concern, as hiring surges in the past had resulted in the rushed recruitment of individuals unsuitable for any law enforcement work, and in long delays in checkingrecruits' qualifications and background; under such circumstances, ill-qualified or violent recruits remain undiscovered until beyond the probationary period and become almost impossible to dismiss later. Furthermore, as thousands of new agents were quickly put in place, INS officials acknowledged that agents being promoted to supervisor positions were not receiving adequate training.
As a result of policy-reform suggestions from Human Rights Watch and others, the Justice Department stated that it was considering hiring an undisclosed number of new Office of the Inspector General investigators (who are responsible for investigating some abuse allegations) whose staff had not increased as the Border Patrol grew exponentially for years. And in response to Human Rights Watch's request for information on disciplinary actions taken against Border Patrol agents, the Justice Department disclosed that thirty INS employees, including Border Patrol agents stationed along the southwest border, had been disciplined during a twenty-eight month period, with punishments ranging from counseling to termination. While the disclosure of even this limited amount of disciplinary information was unprecedented, it remained impossible to assess whether disciplinary actions were taken in deserving cases.
On May 20, eighteen-year-old high school student Esequiel Hernández was shot dead by U.S. Marines patrolling the border near Redford, Texas as he tended his family's goats. Texas Rangers investigating the shooting complained that the Marines failed to provide investigators with even basic information about what had taken place, and noted that the physical evidence did not support the Marines' accounts. The shooting sparked community criticism of military deployment in populated areas and led to a temporary suspension of anti-drug border operations by the Marines, working in conjunction with the Border Patrol along the U.S.-Mexico border. In August, a grand jury (which reportedly included a Border Patrol supervisor on duty the night of the incident, the wife of a Border Patrol agent, and a retired Border Patrol agent) chose not to indict the Marine who shot Hernández; in August, a similar consent degree was reached with the Steubenville, Ohio police force
Incidents of police abuse continued unabated during the year; the torture allegations by Haitian immigrant Abner Louima against officers of the New York City Police Department renewed calls for effective oversight of that police force. Observers questioned whether the signals sent by high-level police and city officials regarding "zero tolerance" for criminals had encouraged officers to engage in brutal treatment. Among the troubling facts surrounding the case were: the habitual "code of silence" among police officers who refused to cooperate with investigators even after the police commissioner and the city's mayor publicly urged them to do so; the force's internal affairs unit's improper handling of the timely complaint filed by a nurse at the hospital where Louima was taken; and the apparent nonchalance displayed by the involved officers on the night of the incident, indicating that they felt they had little to fear for even this egregious act.
The problems identified in New York following the Louima case were evident throughout the country. Weak civilian review, flawed internal investigations, and rare criminal prosecutions by local and federal prosecutors combined to create an atmosphere in which brutal officers had little reason to fear punishment of any type. One positive development during the year was the use of new federal civil "pattern or practice" power to compel particularly troubled police departments to make reforms. In Pittsburgh, Pennsylvania, the Justice Department was so concerned by a "pattern or practice" of brutality and poor response to such incidents that it entered into a consent decree with the city and its police force in February, and required major reforms in the way misconduct allegations were handled. Among the other police forces under investigation using the Justice Department's new civil powers were Los Angeles, New Orleans, New York, and Philadelphia.
The United States continued to incarcerate a greater proportion of its people than almost any other country in the world, with one of every 163 U.S. residents behind bars. At the end of 1996, the number of prisoners and jail inmates reached a new high of approximately 1.7 million, representing a doubling of the incarcerated population since 1985. Notably, racial disparities in the rate of incarceration continued to worsen. African-Americans, who made up 51 percent of the national prison population, were incarcerated at a rate 7.5 times that of whites. Women prisoners-including many mothers of small children-constituted a small minority of the inmate population, but their numbers continued to grow quickly: by the end of 1996 there were at least 75,000 women confined in U.S. federal and state prisons. According to a U.S. Department of Justice analysis, if current rates of incarceration continued, one in twenty Americans would go to prison at some point in his or her life.
Overcrowding in U.S. prisons contributed substantially to violence and abuse among inmates, and between guards and inmates, as well as to the inadequate provision of medical and mental health care services in many prison systems. According to a Justice Department report released in June, state prison populations significantly exceeded state prison capacities. California, with the most crowded prison system, was operating at over twice its capacity. Because of the space shortage, over 31,000 prisoners had to be placed in local jails lacking appropriate facilities, services and programs.
The burgeoning prison population reflected less on the crime rates than on changes in incarceration and sentencing practices: more nonviolent offenders were being incarcerated and the actual time served by prisoners was increasing because of "truth in sentencing" laws and diminished parole release rates. According to official figures released in 1997, drug offenders accounted for 23 percent of the state prison population and 60 percent of the federal prison population. Many of them faced remarkably harsh sentences. In New York, for example, nonviolent drug offenders convicted of the possession or sale of relatively small amounts of drugs faced the same felony sentences as murderers and rapists. (see Drugs and Human Rights discussion in Special Issues section).
Despite the increasing numbers of people in prison, "rehabilitative," educational, and vocational programs got scant support. Some politicians and prison officials even decided that confinement in prison was not punishment enough, and began, as of 1995, reintroducing prison chain gangs-euphemistically referred to by corrections officials as "secured work groups." The first state to institute roadside work crews of prisoners was Alabama, followed by Arizona, Florida, Iowa, Indiana, Illinois, Wisconsin, Montana, and Oklahoma. After an Alabama prisoner, released from his shackles, attacked another chain-gang member with his bush axe and was subsequently shot dead, states modified their systems from group shackling to individual leg shackles. Two states, Arizona and Indiana, had women chain gangs. Officials stated that their goal in using chain gangs was to humiliate prisoners so as to deter them and onlookers from committing crimes in the future. During the year, many institutions considered using-and in some cases, started to use-stun belts instead of chains, allowing correctional officers to shock prisoners from a distance of 300 feet, for up to ten minutes; once shocked, a prisoner loses bladder and bowel control.
Prison systems continued to construct super-maximum security facilities in which prisoners deemed particularly disruptive or dangerous were confined for years in small, often windowless cells for twenty-three hours a day, subjected to extremely restrictive controls and denied educational, vocational and social programs that would promote their successful reintegration into the general prison population. Of particular concern were super-maximum security facilities where there was often a lack of programming and services for inmates; the psychological impact of prolonged solitary confinement; and the absence of adequate mental health screening, monitoring and treatment. Excessive isolation, controls and restrictions without adequate penological justification and insufficient mental health care are inhumane. While such conditions pose mental health risks for inmates generally, they may constitute such cruel treatment as to be considered torture under international human rights standards for the many mentally ill inmates or those with pre-existing psychiatric disorders.
Correctional officials too often responded with inhuman and dangerous disciplinary measures to the unruly behavior of the increasing number of mentally ill individuals confined in U.S. prisons. At Utah State Prison, a mentally ill young man died in April after prison officials strapped him to a restraint chair for sixteen hours. Blood clots formed in his legs during the prolonged continuous restraint, then triggered a fatal pulmonary embolism. After having first claimed the chair was rarely used, state corrections officials admitted that 150 inmates had been restrained in the chair a total of 200 times during the previous two years. Some inmates were strapped in the chair for up to five days. One mentally ill inmate was strapped to a steel plank for twelve weeks; he was let up twice a day. In April, a Utah professional review panel determined that the doctors who ordered such treatment had violated basic standards of care.
In their quest to develop quick and effective methods to control resisting prisoners and suspects, law enforcement and correctional officials have developed technologies that can prove fatal. In June, a prisoner died of shock from an allergic reaction to pepper spray after California correctional officers used the chemical irritant to permit them to forcibly extract him from his cell in San Quentin prison. Two months later, a young man died in police custody in Colorado after being pepper-sprayed and then handcuffed with his legs and hands behind his back, a practice which has been shown to cause positional asphyxia by restricting breathing after a suspect is sprayed. More than thirty-two people died in California alone from 1993 to 1997 after being sprayed with the chili pepper extract.
Conditions in some states' juvenile detention facilities were appalling. Human Rights Watch findings on treatment of juveniles in Louisiana and Georgia spurred Justice Department investigations: in Louisiana, the Justice Department found "life-threatening" abuses and documented extreme brutality by guards, as well as a failure to protect children from sexual and physical abuse. A Justice Department investigation in Georgia is ongoing at this writing. Eight Colorado institutions, investigated by Human Rights Watch, were overcrowded (some at 2.5 times capacity) and unsafe, with excessive use of restraints and punitive segregation; there were complaints of chronic hunger; and incidents of physical abuse by staff.
Meanwhile, legislation was debated in Congress that would allow juveniles to be held in adult facilities, ignoring international standards prohibiting this practice. The proposed law would make youths vulnerable to violence by adult prisoners and would isolate them from necessary educational and other programs.
Widespread sexual abuse of women prisoners, exposed by Human Rights Watch in 1996 and documented by local advocates in many states, continued as corrections officials did little to curtail the abuse. In one positive development, the Justice Department acted on its threat to sue the states of Michigan and Arizona in 1997 for violating women's constitutional rights by allowing prison staff to sexually abuse female prisoners with impunity. And legislation to require improved accountability for abusive correctional officers was introduced in Congress in October. The bill would require that states receiving federal funding criminalize sexual contact between correctional officers and prisoners; it would also require that the Justice Department set up a tracking system to prevent officers found criminally or civilly liable in sexual misconduct incidents from being re-hired, and to assist prisoners in filing complaints about sexual misconduct by guards.
Ignoring the international trend away from capital punishment, U.S. states carried out executions at a record pace in 1997, with fifty-four men executed as of the end of September. Executions in Texas made up half of the total. In March, Pedro Medina was executed in Florida using an electric chair which malfunctioned, setting his head ablaze. Florida courts held that executions should continue, despite the repeated malfunctions. During the year, two Mexican nationals were put to death in Texas and Virginia, and in both cases notification to the Mexican government was delayed in contravention of the Vienna Convention, which requires that defendants' governments be notified promptly.
At this writing, several states are moving toward reintroduction of capital punishment. Iowa, Massachusetts, and the District of Columbia-which are all traditionally anti-death penalty-typified this trend. In Iowa, the state legislature delayed a vote on the issue until early 1998. In Massachusetts, a last-minute vote switch by a House member blocked passage of legislation to reinstate the death penalty in November 1997. And in the District of Columbia, a U.S. Senator introduced a bill to allow capital punishment in the federal capital. In most cases, the proposals to reinstate the death penalty were in reaction to particularly brutal murders.
The United States is one of only six countries in the world that execute people for convictions based on acts committed before the age of eighteen; the other five are Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. At present, fifty-eight people are on death row for such acts.
Defending individuals in capital cases became more difficult during the year, as the effects of habeas corpus changes and cutbacks in funding for legal service centers left defender organizations and attorneys scrambling to assist those facing execution. In February, the American Bar Association (ABA) called for a moratorium on executions until policies and procedures could be established to ensure fairness and due process and to minimize the risk of executing innocent persons. The ABA called the current administration of the death penalty a "haphazard maze of unfair practices with no internal consistency." And in July, a report by the Death Penalty Information Center showed that since 1973, sixty-nine prisoners had been released from death row on grounds of innocence, and warned that the new obstacles in defending capital defendants would make mistakes more likely.
In June, the U.S. Supreme Court strongly affirmed the right to free speech on the Internet. In Reno v. ACLU, the court ruled that the federal Communications Decency Act placed unconstitutional restrictions on protected speech. This landmark ruling affirmed the earlier decision of a trial court. The Supreme Court found that the "the vast democratic fora of the Internet" merit full First Amendment protection - the same degree of protection afforded the print medium, not simply the more limited protection given to broadcasting.
President Clinton engaged in welcome, high-profile efforts to improve race relations, including a call for national debate on race relations (the Initiative on Race and Reconciliation) through town hall meetings. At the same time, however, the U.S. failed to submit a long-overdue compliance report on an international anti-racism treaty and did not support a proposed World Conference on Racism at the United Nations, calling instead for a special session of the General Assembly to examine the issue. Critics contended that the U.S. position diminished the importance of the problem of racism.
Critics of anti-crime policies point out that blacks and Hispanics were arrested, convicted, and received higher sentences than whites for the same crimes. Perhaps the major cause of this disparity continued to be the country's "war on drugs." For many African-Americans, the symbol of disparate treatment at the hands of the criminal justice system was the much harsher sentencing for crack than for powder cocaine offenses under federal law. Compliance with the International Convention on the Elimination of All Forms of Discrimination (CERD) requires revision of the drug sentencing laws to ensure that blacks-convicted more frequently of crack offenses-and whites-convicted primarily of powder cocaine offenses-receive equivalent sentences for equivalent crimes.
Compliance with International Standards
The low priority given to international human rights treaty compliance and human rights monitoring mechanisms by the U.S. became increasingly apparent during the year. Since 1994, the U.S. has been party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and CERD. Both treaties require reports to the United Nations, describing the nation's treaty compliance. The U.S. compliance reports on both treaties were due in November 1995, but as of October 1997, neither had been submitted. Submission of such reports should be timely, and the reports should cite specific practices or incidents relevant to the treaty's provisions, rather than mere recitation of U.S. law that ought to, but does not always, protect U.S. inhabitants from treatment prohibited under international standards.
Other important human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child, remained unratified. (Only two countries in the world have not ratified the Convention on the Rights of the Child: Somalia, which has no internationally recognized government, and the United States.) The administration took no action toward signing or ratifying core International Labour Organisation conventions intended to protect basic labor rights, while the administration and members of Congress pursued fast-track authorization for trade agreements that would remove labor rights standards from bilateral treaty negotiations.
The U.S. Commonwealth of the Northern Mariana Islands (CNMI) received heightened scrutiny by Congress, the administration, and human rights monitors due to continuing reports of abuse of thousands of migrant laborers. The laborers, primarily from China, the Philippines, and Bangladesh, are essentially treated as indentured workers by garment manufacturers. The CNMI authorities are exempt from normal federal immigration, trade, and worker protection statutes. According to a July 1997 inter-agency report by the Clinton administration to Congress, "allegations persist regarding the CNMI's inability to protect workers against crimes such as illegal recruitment, battery, rape, child labor, and forced prostitution....Some workers labor under `shadow' or secondary contracts signed in their home country that subvert their rights under the U.S. Constitution, such as their right to engage in political and religious activities while on U.S. soil." Legislation was introduced in bothhouses of Congress to address these concerns, including a Senate bill backed by the Clinton administration, but not acted upon as of November. Human Rights Watch joined other nongovernmental organizations in calling for federal action.
The Role of the
The United States agreed to a mission by the United Nations' special rapporteur on extrajudicial, summary, or arbitrary executions, yet provided little assistance in facilitating the inquiry. The rapporteur examined the application of the death penalty and deaths in police custody; he traveled to five states, interviewing officials, prisoners on death row, and human rights advocates. Senator Jesse Helms, chair of the U.S. Senate's Committee on Foreign Relations, protested the visit in a letter to the U.S. ambassador to the United Nations, calling the special rapporteur's visit an "absurd U.N. charade." Nevertheless, the mission served several functions, by reminding federal and local officials of their obligations under international human rights treaties, by acquainting local human rights activists with the United Nations' procedures, and by publicizing international concern over U.S. practices relating to the death penalty and police killings. A report on the mission is due to be submitted to the United Nations Commission on Human Rights during its March/April 1998 session.
Relevant Human Rights Watch reports:
Cold Storage: Super-Maximum Security Confinement in Indiana, 10/97
High Country Lock-Up: Children in Confinement in Colorado, 8/97
Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service, 4/97
Cruel and Unusual: Disproportionate Sentences for New York Drug Offenders, 3/97
All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, 12/96
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