Human Rights Developments
Defending Human Rights
The United States has long regarded itself as a beacon of human rights, as evidenced by an enlightened constitution, judicial independence, and a civil society grounded in strong traditions of free speech and press freedom. But the reality is more complex; for decades, civil rights and civil liberties groups have exposed constitutional violations and challenged abusive policies and practices. In recent years, as well, international human rights monitors have documented serious gaps in U.S. protections of the human rights of vulnerable groups. Both federal and state governments have nonetheless resisted applying to the U.S. the standards that, rightly, the U.S. applies elsewhere.
In the Clinton administration Americans have a leadership willing to recognize some core inequitiesracial, gender and other types of discrimination, for examplebut nonetheless unwilling to incorporate key international human rights principles fully into U.S. domestic policies and practices, as described below. At the same time, senior figures of the congressionally dominant Republican Party and many state-level governmentswhich are bound by U.S. obligations under human rights treatieshave denounced international standards as intrusive while advocating policies that effectively infringe upon the human rights of citizens and new arrivals.
In 1998, as in previous years, the U.S. failed to address human rights criticism absent sustained national and international attentionand sometimes even then. Conservative politicians and their allies, often using ugly rhetoric, led successful efforts to craft or maintain policies that excluded unpopular or controversial groupsconvicted criminals, immigrants, and members of certain minorities, among othersfrom full protection of their human rights, despite the protests of U.S.-based rights groups and liberal members of Congress. Get tough anti-crime policies, which enjoyed significant public support, became the vehicle for many of the most serious abuses.
As a result, abusive police officers or prison guards too often enjoyed impunity; the internationally recognized rights of asylum seekers continued to be drastically curtailed; discrimination persisted in policies regarding gay men and lesbians; minority racial groups continued to be overrepresented among those sentenced to death; state-sponsored executions continued, even of juvenile offenders and the mentally incompetent; and many of the nations prisons and jails increasingly populated by nonviolent offenders, due to the war on drugscontinued to be overcrowded, violent places where sexual abuse by male inmates and, in womens prisons, by male guards, was insufficiently controlled or prosecuted.
Three visits by special U.N. rapporteurs on various aspects of human rights took place during 1997 and 1998. The U.S. governments poor treatment of the first visiting rapporteuran expert on the death penalty and arbitrary killings by police, who issued a critical report in 1998led to an outcry by human rights groups and others, prompting greater cooperation with the two rapporteurs who came subsequently to study religious intolerance and womens rights, respectively. Among the problems highlighted by the rapporteurs visits was a pervasive official ignorance of the U.S.s international human rights obligations. This was evident at the federal level, where even responsible and committed civil rights staff at the Justice Department were unaware of international human rights norms. But it was especially severe at the state and local levels, where the rapporteurs encountered varying degrees of hostility. The federal government has an obligation to remedy this enormous gap in knowledge, which translates into practical failures of enforcement. A concerted effort must be made to educate officials at all levels on the standards that enhance existing human rights protections in the U.S. under the International Covenant on Civil and Political Rights and international conventions banning racial discrimination and torture or ill-treatment. The federal government should also set a better example to state and local governments, by changing federal policies of U.S. exceptionalism with regard to international human rights treatiesboth those the U.S. has ratified and those that, alone among Western developed nations, it has failed to ratify.
In 1998, the United States continued to exempt itself from its international human rights obligations, particularly where international human rights law grants protections or redress not available under U.S. law. In ratifying international human rights treaties it has typically carved away added protections for those in the United States by adding reservations, declarations, and understandings. Even years after ratifying key human rights treaties, the U.S. still fails to acknowledge human rights law as U.S. law. Moreover, the U.S. is behind the rest of the developed world in failing to ratify the key international instrument on womens rights and virtually alone in the world in failing to ratify the international childrens rights convention.
The United Statess disregard for international human rights standards has not been limited to domestic matters. During the year, it has also opposed human rights initiatives on issues of broad international interest, including landmines, child soldiers, and the creation of the International Criminal Court. In the case of landmines, the United States refused to join the 133 nations, including nearly every major U.S. ally, that had already signed the treaty by October 1998. It blocked international efforts to end the use of child soldiers, arguing against a proposed optional protocol to the Convention on the Rights of the Child that would raise the minimum age for military recruitment and participation in armed conflict to eighteen. And the United States was one of only seven states voting against the statute creating the ICC at the Rome Diplomatic Conference in July; 120 states voted for the treaty.
Police abuse continued, in part, because accountability systems to restrain abusive behavior were inadequate. Weak civilian review, flawed internal investigations, and rare criminal prosecutions by federal or local prosecutors virtually guaranteed that officers who engaged in brutality would avoid punishment of any kind. Meanwhile, civil lawsuits filed against cities and their police departments for alleged civil rights violations by officers continued to cost taxpayers millions of dollars. Measuring the extent of the problem of police abuse was made more difficult by the Justice Departments failure to compile annual statistics on the use of excessive force by police officers, as Congress instructed it to do in 1994. On the positive side, the Justice Department did begin to utilize its civil powers to identify police departments exhibiting a pattern or practice of abuse and requiring reforms.
Race and ethnicity continued to play a central role in police brutality in the United States. In places where data were available, members of minority groups had alleged human rights violations by police more frequently than non-minority residents and far out of proportion to their representation in those places. Police have subjected minorities to apparently discriminatory treatment and in some cases have physically abused people of color while using racial epithets.
Official responses to a July 1998 Human Rights Watch report on police abuse and accountability in fourteen cities differed greatly from city to city. Some cities officials acknowledged the problems identified in the report, while other officials resorted to name-calling and denial. Human Rights Watch continued to work with the departments that expressed an interest in our findings and recommendations regarding common failings in accountability systems and to urge conditionality on federal aid to police departments that allowed impunity for officers responsible for serious abuses.
Conditions in Custody
Fifty-three percent of all state inmates were incarcerated for nonviolent crimes, while criminal justice policies increased the length of prison sentences and diminished the availability of parole. The U.S. incarcerated a greater proportion of its population than any country except Russia: more than 1.7 million people were either in prison or in jail in 1998, reflecting an incarceration rate of more than 645 per 100,000 residents, double the rate of a decade before. Approximately one in every 117 adult males was in prison.
Surging prison populations and public reluctance to fund new construction produced dangerously overcrowded prisons. Violence continued to be pervasive: in 1997 (the most recent year for which data were available), sixty-nine inmates were killed by other inmates, and thousands were injured seriously enough to require medical attention. Extortion and intimidation were commonplace. Most inmates had scant opportunities for work, training, education, treatment or counseling. Mentally ill inmatesestimated to constitute between 6 and 14 percent of the incarcerated populationrarely received adequate monitoring or treatment.
Many local jails were dirty, unsafe, vermin-infested, and lacked areas in which inmates could exercise or get fresh air. Some jail authorities placed inmates in restraining devices for long periods far in excess of legitimate safety considerations. Severe overcrowding coupled with inadequate staffing in many jails created dangerous conditions reflected in the numbers of inmates injured in fights, who experienced seizures and other medical emergencies without proper attention, and who managed to escape.
Authorities relied increasingly on administrative segregation in super-maximum security prisons to maintain control. Prisoners deemed particularly disruptive or dangerous were isolated in small, often windowless cells for twenty-three hours a day; more than 24,000 prisoners were kept in this modern form of solitary confinement at any given time.
At the end of 1997, Human Rights Watch released a report documenting conditions in two super-maximum security prisons in the state of Indiana. Although excessive use of physical force in these facilities had diminished in recent years, we still found excessive isolation, controls, and restrictions that were not penologically justified, and mentally ill inmates whose conditions were exacerbated by the regime of isolation and restricted activities, as well as by the lack of appropriate mental health treatment. The Indiana Department of Corrections instituted a number of reforms that were responsive to our concerns. Most significant was the development of a special housing unit for the treatment of disruptive or dangerous mentally ill inmates that opened in June 1998.
Abusive conduct by guards was reported in many prisons. The threat of such abuse was particularly acute in supermax prisons. Since Corcoran State Prison in California opened in 1988, fifty inmates, most of them unarmed, were shot by prison guards and seven were killed. In February 1998, federal authorities indicted eight Corcoran officers for deliberately pitting unarmed inmates against each other in gladiator-style fights which the guards would then break up by firing on them with rifles. In July, the state announced a new investigation into at least thirty-six serious and fatal shootings of Corcoran inmates.
Guard abuse was by no means confined to California prisons. Across the country, inmates complained of instances of excessive and even clearly lawless use of force. In Pennsylvania, dozens of guards from one facility, SCI Greene, were under investigation for beatings, slamming inmates into walls, racial taunting and other mistreatment of inmates. The state Department of Corrections fired four guards, and twenty-one others were demoted, suspended or reprimanded. In many other facilities across the country, however, abuses went unaddressed.
Overcrowded public prisons and the tight budgets of corrections agencies fueled the growth of private corrections companies: approximately 100,000 adults were confined in 142 privately operated prisons and jails nationwide. Many of these facilities operated with insufficient control and oversight from the public correctional authorities. States failed to enact laws setting appropriate standards and regulatory mechanisms for private prisons, signed weak contracts, undertook insufficient monitoring and toleratedprolonged substandard conditions. In less than a year, there were two murders and thirteen stabbings at one privately operated prison in the state of Ohio.
Sexual and other abuses continued to be serious problems for women incarcerated in local jails, state and federal prisons, and INS detention centers. Women in custody faced abuses at the hands of prison guards, most of whom are men, who subjected the women to verbal harassment, unwarranted visual surveillance, abusive pat frisks and sexual assault. Fifteen states did not have criminal laws prohibiting custodial sexual misconduct by guards, and Human Rights Watch found that in most states, guards were not properly trained about their duty to refrain from sexual abuse of prisoners. The problem of abuse was compounded by the continued rapid growth of the female inmate population. As a result women were warehoused in overcrowded prisons and were often unable to access basic services such as medical care and substance abuse treatment.
In Michigan, where women were plaintiffs in a civil rights suit jointly litigated by private lawyers and the Department of Justice, these women reported retaliatory behavior by guards, as described in more detail below. The retaliation ranged from verbal abuse, intimidation, and excessive and abusive pat frisks, to loss of visitation privileges and good time accrued toward early release.
Men in prison also suffered from prisoner-on-prisoner sexual abuse, committed by fellow inmates. Prison staff often allowed or even tacitly encouraged sexual attacks by male prisoners. Despite the devastating psychological impact of such abuse, there were few if any preventative measures taken in most jurisdictions, while perpetrators were rarely punished adequately by prison officials.
As in previous years, increasing numbers of children were incarcerated nationwide, even as the number of violent juvenile offenders fell. Research by the Department of Justices Office of Juvenile Justice and Delinquency Prevention (OJJDP) found that only 6 percent of juvenile arrests in 1992 and 1994 were for violent crimes. Between 1994 and 1995, according to OJJDP, violent crime arrests of juveniles between the ages of fifteen and seventeen fell by 2 percent; arrests of younger juveniles for violent crimes dropped by 5 percent for the same period. Despite this declining percentage of violent juvenile offenders, and in spite of the costs associated with incarceration, most states continued to incarcerate high numbers of children for nonviolent offenses. Between 1992 and 1998, at least forty states adopted legislation making it easier for children to be tried as adults, and forty-two states detained juveniles in adult jails while they awaited trial.
Prompted by a 1996 Human Rights Watch report on human rights abuses in the state of Georgia, the Department of Justice (DOJ) concluded a year-long investigation of the states juvenile detention facilities in February 1998. The DOJ identified a pattern of egregious conditions that violated childrens rights, including overcrowded and unsafe conditions, physical abuse by staff and excessive use of disciplinary measures, inadequate educational, medical and mental health services. In March 1998, the state and the DOJ signed an agreement that required the state to make extensive improvements. The DOJ concluded at least two other investigations of juvenile facilities in 1998, finding violations in the county detention centers in Owensboro, Kentucky, and Greenville, South Carolina. In each of these facilities, the DOJ found evidence that staff employed excessive force against juvenile inmates.
Asylum Seekers and Immigrants
More than half of the immigrants held in INS custody during 1998, some 9,000 people, were sent to local jails to await immigration proceedings. Faced with an overwhelming, immediate demand for detention space, the agency handed over control of its detainees to local sheriffs and other jail officials without ensuring that basic international and national standards requiring humane treatment and adequate conditions were met. INS detaineesincluding asylum seekerswere being held in jails entirely inappropriate to their non-criminal status, where they were often mixed with accused and convicted criminal inmates and where they were sometimes subjected to physical mistreatment and inadequate conditions of confinement. Though not serving a criminal sentence or awaiting trial on criminal charges, an INS detainees experience in a local jail was no different from that of a local inmate.
During an eighteen-month investigation into conditions and treatment at the jails used by the INS, Human Rights Watch found that INS detainees in jails were subjected to physical mistreatment, were not provided with basic medical care, were often unable to communicate with jail staff due to language barriers, and were subjected to severe restrictions on contact with families, friends, and legal representativeswhen, in the minority of cases, detainees were able to obtain legal counsel.
In a September report, Human Rights Watch called on the INS to end its use of jails to house immigration detainees; the jails punitive and rehabilitative nature are never appropriate for INS detainees who are simply awaiting immigration hearings and who are not accused or convicted of committing a crime. Asylum seekers should be detained only in exceptional circumstances and should never be sent to jails. Until the INS ends its use of jails to hold its detainees, all INS detainees should be held in separate sections in jails. Human Rights Watch also called for INS detention guidelines for jails and a humane release policy for detainees held indefinitely.
The treatment of children held by the INS was also disturbing. Investigations by Human Rights Watch in three states foundthat nearly all children received little or no information about their right to be represented by an attorney in their immigration proceedings, in violation of international standards and in breach of a consent decree which binds the INS. Some unaccompanied minors were housed with juvenile offenders, locked up and made to wear prison uniforms even though they were held for administrative reasons only. Human Rights Watch continued to work with INS officials and concerned members of Congress to seek reforms.
Until a series of mid-year shootings by the U.S. Border Patrol (a part of the INS), along the U.S.-Mexico border, border-crossers complaints of abuse continued but reports of serious physical abuses, such as shootings, beatings, and kickings, seemed to decline. Beginning in June 1998, after a Border Patrol agent in southern Arizona was shot dead, Arizona agents opened fire at border-crossers at least a half-dozen times over a three-month period, leading to one fatality in September. And along the southern California border with Mexico, Border Patrol agents shot two men fatally during shooting incidents in September. All three of the men killed by agents were reportedly holding rocks in a threatening way when agents shot them; investigations were underway at the time of this writing.
Congress ordered the creation of a Citizens Advisory Panel (CAP) in response to reports of abuse along the border; the CAP first met in 1995. In December 1997, it made recommendations for reforms in the way the INS and other agencies receive and investigate abuse complaints, but few had been implemented as of October 1998. The CAPs mandate has now expired.
The mistreatment of migrant workers in the Commonwealth of the Northern Mariana Islands (CNMI), a U.S. territory in the North Pacific Ocean, received heightened scrutiny by Congress, the administration, and human rights organizations. Companies operating in the islands mistreated thousands of laborers, primarily from China, the Philippines, and Bangladesh, who had become essentially indentured workers in garment manufacturing plants; these abuses had been allowed because the CNMI authorities were exempt from normal federal immigration, trade, and worker protection statutes. During the year, legislation to address human rights violations in the CNMI was introduced in Congress and actively supported by the Clinton administration. The Department of the Interior prepared a report that documented the trafficking of Russian and Chinese women for prostitution as well as an overall worsening of conditions for foreign workers.
In April 1998, the United Nations special rapporteur on extrajudicial, summary, or arbitrary executions released his report on the death penalty in the U.S. The special rapporteur found that the death penalty was applied in an unfair, arbitrary, and discriminatory manner. The report called for a suspension of executions until significant reforms were implemented to bring the U.S. into compliance with international human rights standards. The special rapporteurs plea for a moratorium echoed the American Bar Associations similar call in 1997. The special rapporteur criticized the U.S. practice of imposing the death penalty on juvenile offenders and on mentally retarded or mentally ill persons as a step backwards in the promotion and protection of the right to life and in contravention of international human rights standards. From 1976 to 1997, seventy-four people were released from death row due to evidence of their innocence, according to the Death Penalty Information Center (DPIC).
As in the past, race played a role in the application of the death penalty. Two 1998 studies by the DPIC illustrated this. One focused on the city of Philadelphia and found that an African-American was four times more likely to be sentenced to the death penalty than a white defendant on similarly severe murder charges and with a similar criminal background. The other examined the race of district attorneys (who make the decisions on whether to seek the death penalty) and found that nearly 98 percent of the district attorneys in states with the death penalty were white while 1 percent were African-American.
The U.S. continued to be one of only six countries to execute persons who were younger than eighteen when they committed their crime. The imposition of the death penalty on persons who were under eighteen years of age at the time of their offense violates the provisions of several international and regional human rights instruments. Despite nearly unanimous international condemnation of the use of the death penalty for juvenile offenders, six countries in the worldIran, Nigeria, Pakistan, Saudi Arabia, the United States, and Yemenwere known to have executed juvenile offenders in the 1990s. The United States led the list with nine executions between 1990 and 1998, one-half of the known worldwide total for the period. Two such executions took place in 1998 in the state of Texasthe first of juvenile offenders anywhere in the U.S. in five years. A third took place in Virginia, where Dwayne Allen Wright was executed in October. Wright was a juvenile offender and was mentally ill and may have suffered from brain damage.
The U.S. continued to ignore its obligations under the Vienna Convention to notify non-national defendants of their right to contact their embassies. In April 1998, the International Court of Justice called on the U.S. to delay the execution in Virginia of a Paraguayan national, Angel Francisco Breard, until it could examine his case and decide whether the U.S.s failure to notify the defendant of his consular rights had made a difference in his case. The U.S. decided that, with or without consular notification, Breard would have been convicted of a capital crime; the execution went ahead.
The onus of harsh criminal justice policies continued to fall disproportionately on black Americans, fueling persistent complaints of racial discrimination. According to the most recent figures from the Department of Justice, one in twelve (8.3 percent) black men aged twenty-five to twenty-nine were in prison in 1996, compared to 2.6 percent of Hispanics men and 0.8 percent of white men in the same age group. Black Americans constituted a disproportionate share of the prison population: 48 percent of state prisoners, 30 percent of federal prisoners, and 42 percent of jail inmates, according to 1997 statistics, the most recent data available. The rate of imprisonment for black men was 8.5 times that of white men. According to a U.S. Department of Justice analysis, if current rates of incarceration continued, one in three of the next generation of black men would spend time in prison at some point in his life.
The nations war on drugs, for example, continued to have a well-documented disparate impact on African-Americans. Drug control policies emphasized law enforcement in low-income urban areas, contributing significantly to the number and proportion of blacks and Hispanics who were arrested, convicted and imprisoned. The arrest rate for drug offenses was six times higher for blacks than for whites. ( See Drugs and Human Rights section.) More than one-quarter of all black inmates in state prisons were convicted of drug offenses, compared to 13 percent of white prisoners.
For many African-Americans, the most egregious example 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 CERD would require revision of the federal sentencing laws to ensure that blacks (convicted more frequently of crack offenses) and whites (convicted more frequently of powder cocaine offenses) receive equivalent sentences for equivalent crimes.
The scale of felony disenfranchisement in the U.S.the denial of the vote to persons convicted of felonieswas unparalleled: in 1998, an estimated 3.9 million U.S. citizens were denied the right to vote, including over one million who had fully completed their sentences. No other democratic country in the world denies as many peoplein absolute or proportional termsthe right to vote because of felony convictions. The racial impact of disenfranchisement laws was particularly egregious. Thirteen percent of African-American men1.4 millionwere disenfranchised, representing over one-third (36 percent) of the total disenfranchised population. In two states, data published by Human Rights Watch and The Sentencing Project showed almost one in three black men to be disenfranchised. In seven states, one in four black men is permanently disenfranchised. These rates of disenfranchisement are an unintended but nonetheless foreseeable consequence of harsh criminal justice policies that have markedly increased the number of people sent to prison and the length of their sentences as well as of drug law enforcement that has put hundreds of thousands of adults behind bars, a preponderance of whom are members of minority groups.
In June 1997, President Clinton called for a national debate on race relations and appointed an advisory panel (the Advisory Board to the Presidents Initiative on Race) to compile a report of its recommendations to address the problem of racism. The panels report was submitted to the president in September 1998, and it disappointed civil rights leaders and others by failing to make bold proposals. Meanwhile, a long-overdue U.S. compliance report on CERD remained pending.
Expanding the federal statute outlawing hate crimes received strong public support from the Clinton administration, and the importance of such support was underscored by proof that racist sentiment can turn deadlyas in the brutal and degrading June 1998 murder of James Byrd, a black man in Texas, whose killers dragged his beaten body behind their pickup truck until he died.
National debate on the rights of gay men and lesbians contained some ugly rhetoric in 1998, including from senior politicians of the Republican Party. The legal rights of homosexuals received greater protection at the federal than at the state level, though federal policy on the treatment of gay men and lesbians in the militarydont ask, dont tell, dont pursuecontinued to have a discriminatory impact. In some areas, bias crimes against homosexuals increased, while groups espousing family values sought to cure homosexuality. The brutal murder of a young gay man, Matthew Shepard, in Wyoming in October galvanized nationwide concern over hate crimes.
In May 1998, President Clinton signed an executive order protecting federal civil workers from discrimination based on sexual orientation, and the House of Representatives voted to uphold the order in August. Employment discrimination remained a problem, however, since only ten states had laws prohibiting discrimination based on sexual orientation. Seven states had executive orders barring discrimination in public employment based on sexual orientation, and two had state civil service rules prohibiting discrimination based on sexual orientation. As a result, in the forty states without comprehensive laws, it remained legal for any private employer to fire, deny promotion, unfairly compensate or decline to hire people because of theiractual or perceivedsexual orientation. The Employment Non-Discrimination Act, a bill that would protect workers in every state from discrimination based on sexual orientation, was not acted on as the congressional session ended. (For further discussion, see section on Gay and Lesbian Rights.)
Discrimination against women continued in many areas, including employment, education, and judicial and law enforcement bias in domestic violence cases. The failure to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) left women in the U.S. without enhanced human rights protections against sex discrimination.
International Human Rights Scrutiny
United Nations special rapporteurs monitor countries compliance with international human rights standards. During late 1997 and 1998, three special rapporteurs visited the United States. When Bacre Waly Ndiaye, the U.N. special rapporteur on extrajudicial, summary, or arbitrary executions, conducted a mission at the end of 1997, officials at the State and Justice departments made almost no effort to facilitate his meetings with local officials or his access to prisons death rows. There were improvements in the way the U.N. special rapporteur on violence against women, Radhika Coomaraswamy, was treated by federal officials during her June 1998 investigation of human rights abuses of women in custody, including prisons and INS detention centers, but Michigan officials would not allow her to visit prisons in that state. (The other special rapporteur visited the United States in February and examined religious intolerance.) The federal government, by authorizing the special rapporteurs visits, showed an increased openness, but there was far less acceptance of such international monitors at the state level.
After Special Rapporteur Ndiaye released a report in April 1998 that was highly critical of the application of the death penalty in the U.S.and called for a moratorium on its use, echoing a similar call by the American Bar AssociationU.S. officials dismissed the report as unnecessary and inaccurate. U.S. officials were forced to defend the use of the death penalty before the U.N. Human Rights Commission in Geneva. At that time, U.S. officials argued that the nation had such strict due process standards that the rights of all capital defendants were being protected. Meanwhile, the U.S. acknowledged it had not adhered to the Vienna Conventions consular notification procedures in the case of a Paraguayan national, but the man was executed anyway, despite international and World Court protests.
Conditions in Custody
Asylum Seekers and Immigrants
International Human Rights Scrutiny
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