March 21, 2001
The Honorable John Ashcroft
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
Dear Attorney General Ashcroft:
Congratulations on your confirmation as Attorney General. As head of the
Department of Justice, you will be in a position to play a pivotal role in ensuring respect for the basic rights of all people, citizens and non-citizens alike, who reside in the United States. We urge you to make this a key priority of your term of office.
As an organization that works worldwide to promote respect for fundamental human rights, Human Rights Watch is keenly aware of the importance and scope of your new responsibilities. We wish, therefore, to take the opportunity of your assumption of office as Attorney General to set out below our principal concerns and recommendations relating to the mandate of the Justice Department, and to urge you to incorporate these into your agenda for action.
As you may know, Human Rights Watch is a non-partisan, independent organization that uses research and advocacy to promote respect for internationally recognized human rights in over seventy countries in all regions of the world. We do not only address human rights issues abroad. Over the past several years, we have published several ground-breaking reports on human rights problems in the United States, including sexual abuse of women inmates, barriers to accountability for police abuse, and deprivation of the right to vote for ex-offenders under state felony disenfranchisement laws. We have also addressed such issues as racial disparities in incarceration for drug offenses, abuses by border patrol agents, and substandard conditions of confinement for children in juvenile facilities and adults in super-maximum security prisons. Within the coming weeks, we will publish a report on prisoner-on-prisoner sexual abuse in the United States, the product of three years of detailed and painstaking research. We are enclosing, for your review, some of our most recent reports.
Under your leadership, the Department of Justice has a primary responsibility and obligation to promote and strengthen respect for human rights in the United States. It should both build upon the positive steps taken by previous administrations, Democratic and Republican, and undertake new initiatives, as proposed below, to ensure full respect for the fundamental rights of all citizens and other residents of the United States.
Support the Special Litigation Section of the Department's Civil Rights Division
We urge you to support the work of the Special Litigation Section of the Civil Rights Division in combating abuses by police, as well as in prisons and jails, and to ensure that the section has adequate funding and other support to enable it to fulfill its mandate.
The Justice Department's power to initiate inquiries to determine whether there is a "pattern or practice" of abuse and poor accountability in particular police departments has become an essential tool in combating unchecked police misconduct. The Attorney General is authorized to conduct such inquiries under provisions of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. §14141). Such inquiries, and the necessary reforms that stem from them, have led not only to improvements in the particular departments studied, but have also sent a powerful signal to all police departments about the "best practices" that the Justice Department supports. While prosecutions of law enforcement officers by the Civil Rights Division are important, the civil powers allow the Justice Department, working in concert with local officials, to promote broader reforms that cannot readily be identified or addressed through criminal prosecutions of individuals. In Pittsburgh, PA, Steubenville, OH, and New Jersey, reforms have been, or are currently in the process of being, implemented following "pattern or practice" inquiries undertaken by Special Litigation Section into alleged excessive use of force and racial discrimination by law enforcement authorities. Currently, the Civil Rights Division reports that it is reviewing fourteen police departments; negotiations are underway in New York City and an agreement has just been reached with the Los Angeles Police Department following inquiries in those cities.
The Special Litigation Section also plays a vital role in protecting the rights of persons - both adults and children - who are confined in state and local prisons and detention facilities. As you know, the Civil Rights of Institutionalized Persons Act (CRIPA) empowers the Attorney General to investigate conditions in public facilities and to take appropriate action if it is found that there is a pattern or practice of unlawful actions that deprives persons confined in the facilities of their constitutional or federal statutory rights. The Special Litigation Section, acting under CRIPA, has investigated hundreds of jails, prisons, juvenile correctional facilities, mental retardation and mental health facilities, and nursing homes. In many of these cases, it has secured significant reform of systemic abuses without recourse to litigation. In other cases, litigation brought by the Special Litigation Section has brought about necessary changes in policy and practice in order to end abuses. With regard to conditions in juvenile detention facilities, in particular, Human Rights Watch has cooperated closely with the Special Litigation Section, notably concerning Georgia and Louisiana, where real improvements have been achieved as a result. The Special Litigation Section has also recently opened a formal investigation into Red Onion State Prison, a super-maximum security prison in Virginia that has been the focus of considerable attention by Human Rights Watch on account of persistent reports of serious abuse of inmates.
Clearly, as the number of persons incarcerated in prisons and jails continues to soar, the work of the Special Litigation Section under CRIPA, already important, will become even more crucial in ensuring that the constitutional and human rights of those incarcerated, who often lack adequate financial, legal or other means to protect their rights, are fully respected.
Use federal grants to encourage reforms in U.S. police and corrections departments
There is compelling evidence that some U.S. police and corrections officials employ torture or cruel, inhuman or degrading practices against those in their custody, while others tolerate or condone these practices. To address this pervasive and longstanding problem, we believe your administration should provide a reform incentive by rewarding, and by being clearly seen to reward, police and corrections departments that take concrete steps to improve accountability systems and to punish abusive officers. In the case of police departments, the Justice Department recently issued a document detailing what it considers to be the "best practices" for ensuring accountability. We believe it would be appropriate, therefore, that police departments seeking federal grants should be required, as a condition of their application, to describe the steps they are taking to meet those standards, and that those departments that are taking effective steps to comply with the Justice Department recommendations should be rewarded, while those that fail to do so should be penalized or denied federal grants.
As yet, the Justice Department has not developed "best practices" for prisons. However, there are a number of critical areas affecting prison management - for example, relating to the use of force - in which the Department could encourage policies that will protect inmates against abuse through targeted incentive grants. Similarly, the Department could play an important leading role in combating prisoner-on-prisoner sexual abuse by drafting model investigatory procedures for such allegations.
Remove barriers to civil rights prosecutions and enhance monitoring
The Criminal Section is tasked with prosecuting law enforcement officials who violate the civil rights of those they are sworn to serve (18 U.S.C. §§241 and 242). Although there are many such complaints each year, such prosecutions are rare. During Fiscal Year 1999, the Civil Rights Division received more than 12,000 complaints, the majority alleging official misconduct by law enforcement officials. During the same year, more than 3,600 FBI civil rights investigations were initiated. Thirty-six grand juries were impaneled in civil rights cases involving fifty-eight law enforcement officers resulting in thirty-one convictions or guilty pleas. We welcome the efforts in these cases, but considering the figures, it is clear that only a very small percentage of allegations of civil rights violations against law enforcement officers are investigated fully and presented to a grand jury, and that of these only about half result in convictions or guilty pleas. It appears that police and correctional officers have little reason to fear such prosecutions, thus undermining the statute's possible deterrent effect.
It is impossible to know, without full access to case files, whether this low rate of prosecution is justified by the circumstances of the specific cases, but these statistics do raise questions regarding adequate funding, whether investigations are sufficiently timely and thorough to support prosecutions, and whether there is the political will to pursue these cases vigorously. Consequently, we urge you to order a review of the Criminal Section's practices and policies to ensure that the section is not declining to prosecute cases that could be brought successfully. Furthermore, the review should be used to determine whether the high threshold prosecutors are required to meet in civil rights cases - interpreted as having to prove beyond a reasonable doubt that the accused officer specifically intended to deprive an individual of his or her civil rights - undermines the spirit of the law. We urge you to review this "specific intent" requirement and to support any legislative efforts to revise or remove this legal standard if it is found that it is inappropriately hampering or preventing the prosecution of officers who violate individual's civil rights. It should be sufficient for prosecutors to show that a law enforcement official intentionally and unjustifiably beat, killed, or otherwise abused a victim without the additional burden of having to prove the officer specifically intended to violate the victim's civil rights.
We also urge you to enhance the federal monitoring of local prosecutorial efforts against police officers. In city after city - including New Orleans, Philadelphia, Washington, DC, and Los Angeles - federal officials either failed to act or were unaware as rampant police abuses took place. For example, in Los Angeles, the Los Angeles Times reviewed cases referred for possible prosecution from the LAPD to the District Attorney's office between 1995 and 2000. The District Attorney's office received one hundred allegations of possibly criminal use of excessive force by Los Angeles Police Department officers. During that period, the District Attorney fully prosecuted just one case, with the officer pleading guilty to a misdemeanor charge. (Two other officers were indicted recently for beating a homeless man in 1997, with trials pending as of this writing.) At least eight of the officers eventually linked with the Rampart scandal had been the subjects of such referrals, with allegations including rape and excessive force. The District Attorney in Los Angeles recently acknowledged that the office was "asleep at the switch" in relation to police corruption and brutality - inaction that allowed the abuses by the Rampart Division officers and others to flourish. Yet the U.S. Attorney's office and Civil Rights Division were no more vigorous in prosecuting such cases during this period. According to information provided by the Criminal Section to Human Rights Watch, just three LAPD officers were prosecuted for civil rights violations during Fiscal Years 1998, 1999, and 2000; none of those cases involved excessive force.
According to the U.S. Attorney in the Central District of California, there is no set procedure for sharing information between the District Attorney's office and the U.S. Attorney's office. He told Human Rights Watch that the LAPD, District Attorney's office, and U.S. Attorney's office were now working on improving communication regarding cases of mutual concern, allowing the U.S. Attorney to learn about such incidents in a timely way and to consider whether they constitute civil rights violations under the federal statute. We commend this effort and urge the Criminal Section to enhance this type of information-sharing in all jurisdictions. We also suggest that, in order to play an effective role in monitoring police departments, federal officials in the Justice Department and around the country should maintain consistent contact with civilian review agencies, city attorney offices, and civil rights groups. Federal officials should collect all information possible from all sources and not remain reliant upon local prosecutors, police officials, or press reports to identify cases and patterns that may require immediate federal investigation and prosecution.
Protect prison inmates from abuse
Many men and women incarcerated in the nation's jails and prisons are subjected to violence, injury and sexual abuse at the hands of either other inmates or correctional officers. Your Department should use its authority to protect the rights of inmates to safe and humane conditions of incarceration. With this in view, we urge you to provide increased personnel and other resources to the Department's Civil Rights Division to enable it both to undertake more civil and criminal investigations into abusive correctional facilities, and to initiate the appropriate civil or criminal proceedings. In addition, we urge you to institute within the federal Bureau of Prisons - and to encourage state correctional systems to institute - effective, independent mechanisms to receive and investigate complaints of abuse from inmates, to provide the inmates with appropriate redress, and to hold accountable abusive correctional officers. We also urge a complete investigation into the recent history of beatings of inmates at USP Florence by federal officers who termed themselves the "Cowboys." In particular, such an investigation should establish how and why it was possible for the abuses to continue for as long as they did and on so large a scale, and identify the changes needed in Bureau of Prisons' policies and procedures to prevent any possibility of repetition.
One of the most serious abuses plaguing our nation's prisons and jails is prisoner-on-prisoner rape. Such rapes, frequently, are unimaginably vicious and brutal, and their effects on the victim's psyche, let alone health, can be deep and enduring. Yet, despite the widespread and persistent nature of the problem, few states take specific affirmative steps to prevent or punish this gross abuse against persons in their custody. This is an issue on which we urge you to take a clear lead. In particular, we urge you to instruct the Justice Department's Civil Rights Division to be extremely attentive to this issue when conducting its investigations into conditions of state correctional facilities. We also request that you instruct the National Institute of Corrections to develop, and widely promote, specific protocols for the prevention and investigation of prisoner-on-prisoner rape.
Improve conditions in the Bureau of Prisons' super-maximum security prison
While we recognize that dangerous and violent inmates pose particular custodial problems, we are greatly concerned that the Administrative Maximum Security facility (ADX) in Florence, Colorado is operated in ways that violate basic human rights. In particular, policies in effect there permit inmates to be subjected to years of confinement in conditions of extreme social isolation, reduced sensory stimulation, and rigorous security control, regardless of whether such confinement is instituted as punishment for misconduct or as the result of administrative management classification decisions. Prolonged confinement under such conditions can constitute cruel, inhuman and degrading treatment as prohibited by human rights treaties to which the U.S. is party. We urge you to undertake without delay a high-level review of these policies, with a view to bringing them into full conformity with recognized international human rights standards relating to the treatment of prisoners.
We urge you also to evaluate the Bureau's mechanisms for ensuring fairness and accountability in ADX placement decisions. Our research indicates that the Bureau does not provide inmates with detailed justifications for why they are being sent to or kept at ADX, and that it takes insufficient precautions to protect inmates from being consigned, through unnecessary or arbitrary decisions, to the extreme strictures of ADX confinement. The Department should also encourage states to institute comparable reviews of their own policies and procedures regarding the criteria for sending inmates to, and retaining them at, super-maximum security facilities, and the conditions in those facilities.
Address abuses of children in detention
In many juvenile detention facilities across the country, children are detained in overcrowded and unsafe conditions; receive inadequate educational, medical and mental health services; endure physical abuse by staff; and are subject to excessive use of disciplinary measures, including use of isolation and physical restraints. Increasing numbers of youth are also being tried as adults and detained in adult jails, depriving youth of the variety of rehabilitative dispositions that are available in juvenile proceedings. Moreover, as academic studies have shown, adult inmates disproportionately target juveniles held in adult facilities for sexual abuse.
We urge you to instruct the Office of Juvenile Justice and Delinquency Prevention to develop mandatory standards for the administration of juvenile justice that, at a minimum, comply with international standards on the conditions of confinement of children and are applicable to all public and private facilities, including adult detention and correctional centers. We also urge continued investigations by the Department of Justice Civil Rights Division into conditions of confinement for children held in juvenile detention facilities as well as adult jails and prisons.
End overly harsh sentences for nonviolent drug offenders
We urge you to commit the Department to endorse the sensible, just, and parsimonious use of prison as a sanction of last resort, and to lend your authority to efforts to reduce the overincarceration of Americans that has given the U.S. the highest rate of incarceration in the world after post-genocide Rwanda. Almost seven hundred thousand Americans are currently held in state or federal prison for nonviolent crimes, three hundred thousand on drug charges. Indeed, 60 percent of federal inmates were sentenced for nonviolent drug offenses, and high proportions are merely low-level offenders, not major traffickers or "king pins." The public's interest in securing accountability, promoting public safety and curbing the drug trade can be served without the imposition of unnecessarily harsh prison sentences for drug offenders, and without mandatory minimum criminal sentencing laws that tie judges' hands in sentencing. You should press for the elimination of harsh mandatory minimum sentences for nonviolent drug offenders in federal law and limit federal prosecutions to major traffickers. We also urge you to encourage states - including with funding and technical assistance - to give greater emphasis to substance abuse treatment and alternatives to incarceration for nonviolent drug offenders.
Address the discriminatory impact of the national war on drugs
The nation's war on drugs, however laudable its objectives, has been pursued with methods that have disproportionately and unfairly targeted black Americans. Blacks are arrested, prosecuted and incarcerated on drug charges at rates that greatly exceed their rate of drug offending. In some states, blacks constitute between 80 and 90 percent of all drug offenders sent to prison. In at least fifteen states, black men are admitted to prison on drug charges at rates that are from 20 to 57 times greater than those of white men. Some 45 percent of federal inmates sentenced on drug charges are black. Federal mandatory minimum sentencing laws that establish a 100-to-1 crack-cocaine-to-powder-cocaine quantity ratio for sentencing purposes are a primary cause of the longer sentences black federal drug defendants receive compared to white defendants. We urge you to direct the Department of Justice to ensure that principles of justice and equal protection of the law are the bedrock of state and federal anti-drug efforts. You should subject federal and state anti-drug laws and practices to careful scrutiny and urge change in those that cause significant, unwarranted racial disparities. At a minimum, we urge you to support elimination of the 100-1 crack-cocaine ratio in federal law, as the United States Sentencing Commission has recommended.
Support data collection
The Justice Department needs sufficient data and facts to create and implement responsive and effective policies. Yet the Justice Department does not compile or have access to accurate data regarding racial profiling or the use of excessive force by law enforcement officials.
In the case of racial profiling by the police, we appreciate the Bush administration's support for passage of racial profiling legislation that has languished in Congress for years. The bill, sponsored by Rep. John Conyers, would require your office to conduct a study of traffic stops to better understand the extent of this practice. The bill would authorize the Justice Department to provide funding to assist law enforcement agencies in collecting those data. We urge you to support legislation as a first step in addressing this long-standing and divisive issue and to work with members of Congress to begin to remedy discriminatory practices by law enforcement officials.
Nearly seven years ago, Congress instructed the Attorney General, as part of the Violent Crime Control and Law Enforcement Act of 1994, to collect data on excessive force by police and to publish an annual report from those data (42 U.S.C. §14142). No such report has been produced. At this time, the Justice Department is unable to say whether the problem of excessive force is getting worse or better, whether certain types of abuses are increasing or decreasing, or whether trends suggest effective approaches to address abuse problems. We call on the Justice Department to refocus its efforts, reallocate its research grants, and produce a report responsive to its mandate on this issue. Without the information requested by Congress, and more, it is extremely difficult, if not impossible, for officials at any level to craft enlightened policies that balance the importance of public order with the absolute requirement that the state protect anyone in its jurisdiction from human rights abuses at the hands of police officers.
Support a moratorium on the death penalty
There is widespread recognition, both domestically and internationally, that capital trials and post-conviction proceedings in the U.S. are marked by arbitrariness, racial discrimination, prosecutorial misconduct, inadequate legal representation, and the risk of error and of imposing death sentences on the innocent. Even supporters of the death penalty are deeply troubled - and rightly so - by these and many other flaws in the process by which capital punishment is imposed. The Department of Justice is currently studying the federal capital process; interim results from the study suggest the federal proceedings, like state proceedings, are marked by striking racial and geographic disparities that contradict principles of fairness and equal protection of the law. We urge you, therefore, to ensure that no federal defendants are executed until the report is completed and needed reforms have been implemented to address the deficiencies in the federal process. We urge you also to take all possible steps to ensure that states meet their constitutional and international human rights obligations to refrain from applying the death penalty in an arbitrary, unjust or discriminatory manner. At a minimum, you should encourage and support efforts to provide independent capital defendants with skilled, committed and adequately funded legal counsel for trial as well as at all post-conviction proceedings. In addition, we urge you to take steps to oppose the execution of juvenile offenders or persons who have mental retardation or are otherwise mentally impaired - executions that are prohibited under the International Covenant on Civil and Political Rights (ICCPR). We also urge you to act to remove the reservations attached by the U.S. when it ratified the ICCPR, in an attempt to exempt the U.S. from the explicit objective of the relevant portion of the treaty to ban these practices.
Protect the rights of immigrants and asylum seekers held in administrative detention
Poor planning and new laws requiring detention for broader categories of immigrants and asylum seekers have created a detention crisis, forcing the Immigration and Naturalization Service (INS) to enter into contracts with local jails and prisons across the country to obtain adequate bed-space for its detainees. Thousands of detainees awaiting INS determinations who are not accused of any crime, or who have already served any criminal sentences, are held indefinitely in INS detention centers, county jails, and other secure facilities, in violation of international law. In January, the INS for the first time issued standards addressing conditions and treatment at all facilities where INS detainees are held. This is a positive development, but the real challenge remains adequate monitoring that leads to prompt improvements when violations of the standards are identified.
With regard to asylum seekers - that is, persons seeking to establish that they are refugees fleeing persecution - we urge the administration to adhere to international standards by prohibiting the use of detention barring exceptional circumstances. In those exceptional cases in which asylum seekers are detained, that detention should be for the shortest time necessary. Alternative, non-custodial monitoring mechanisms (with reporting requirements) should be employed as a matter of first course. Detention should be considered only on a case-by-case basis after a thorough review of an individual asylum seeker's circumstances. Asylum seekers should never be held in prisons or jails because the conditions and treatment in such facilities, including commingling with accused or convicted criminals, are entirely inappropriate.
We also urge the INS to conduct consistent, fair, and unbiased reviews to consider release for indefinite detainees who cannot be deported to their countries of origin. In addition, the INS should enforce detention standards and ensure access to effective legal representation.
The INS detains over 5,800 children every year. Nearly 2,000 are held in juvenile detention centers or other secure settings, even though most have never been charged with any crime. Some are subjected to harsh, punitive conditions and, contrary to the Flores settlement, may be commingled with juveniles charged or adjudicated delinquent. Unaccompanied children should be placed in the least restrictive setting appropriate to the child's age and special needs, and secure detention should be used only in very exceptional circumstances, for example, if a thorough and individualized investigation reveals no possible safe alternatives. We urge you to press the INS to develop alternatives to detention for unaccompanied minors, and to order INS officers to immediately cease placing unaccompanied children in state juvenile justice facilities, or in other facilities with prison-like conditions.
Address U.S. Border Patrol abuses
Over the last decade, Human Rights Watch has published several reports documenting abuses committed by the U.S. Border Patrol, including beatings and sexual assaults. There have also been several cases of border-crossers being shot by agents, with the agents often claiming later that the border-crosser was throwing, or reaching for, a rock. Despite a clear pattern of alleged rock-throwing by border-crossers leading to agents' use of lethal force, the INS fails to require that the agents wear appropriate protective gear to minimize possible injuries to agents and the consequent rationale for use of lethal force by the agents.
Human Rights Watch has also documented how the U.S. government often fails to investigate and punish abuses by U.S. border agents. The dramatic growth in the size of the Border Patrol in recent years has only exacerbated the problem of effective oversight. Officials from the Office of the Inspector General (OIG) have complained of severe understaffing that limits their ability to investigate the complaints they receive of border abuses. We urge you to ensure that, in the rush to recruit and deploy additional agents, applicants are properly screened, recruits are properly trained and supervised, and those promoted to supervise the influx of new agents are appropriately chosen and sufficiently trained to supervise the new agents. Agents patrolling areas where rock-throwing is said to be common should wear protective gear. We also urge you to increase the budget of the OIG so that its investigators are able to investigate fully and promptly all complaints that fall under the office's mandate.
Ratify and implement international human rights treaties
It is increasingly difficult for the United States to speak out on human rights issues internationally because of the United States' dismal record in ratifying human rights treaties. When it does ratify rights treaties, the U.S has typically carved away any new protections for those in the United States by adding reservations, declarations, and understandings - on such issues as stopping the execution of juvenile offenders or providing protection from invidious discriminatory treatment. Moreover, the United States is behind the rest of the developed world in ratifying the key international instruments on women's rights, economic rights, and workers' rights, and it stands alone with Somalia among all the countries in the world in failing to ratify the Convention on the Rights of the Child.
Ironically, in light of its long stated commitment to upholding human rights at home and in its foreign policy, the U.S. government today poses a threat to the universality of human rights. We can expect that efforts to exempt the United States from the international system for protecting human rights will be mimicked by unsavory governments and other international actors. Moreover, the U.S. government's unwillingness to subject itself to international human rights standards risks diminishing what should be one of the most important voices defending human rights.
We urge you to support the ratification of the Convention on the Rights of the Child, the Covenant on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Economic, Social and Cultural Rights. We also urge you to continue, and enhance, the Interagency Working Group on Human Rights Treaties, created in December 1998. Among its tasks, the IWG was to institute training and guidance for local and state governments so that they honor U.S. human rights obligations; to review reservations, declarations, and understandings that the U.S. has attached to ratified treaties; to review proposed legislation to ensure that it is in conformity with human rights obligations; to facilitate the production of treaty compliance reports; and to promote the ratification of human rights treaties. Since the IWG's mandate covers domestic human rights issues in the United States, we believe it should be housed, and chaired by, the Civil Rights Division at the Justice Department, rather than by the National Security Council, since the latter has little expertise on these matters.
In all of the areas noted above, the Department has a unique mandate to protect basic human rights here in the United States. We urge you, as Attorney General, to act boldly and forcefully to demonstrate to the country - and the world - that the U.S. government champions human rights at home as well as abroad, and that it will not tolerate abuses of those rights for any reason.
We look forward to an opportunity to discuss this human rights agenda with you at your earliest convenience.