Criminal justice reformers are optimists. Every day we confront misguided policies rooted in politics, prejudice, anger, and fear. Without optimism we would throw up our hands in despair.
Our optimism is, of course, tempered by skepticism.We have learned that politicians are loath to give up being “tough on crime.” They too often resist an honest cost-benefit analysis of the country’s decades-long experiment in mass incarceration. They refuse to acknowledge that many anti-drug law enforcement practices undermine rather than empower vulnerable minority communities.
In recent years, the dire straits of state budgets have begun to push public officials in the United States to consider cost-saving changes in the criminal justice system. Low crime rates help to provide political cover for such changes. It would be nice to think that aggressively (and senselessly) punitive crime policies may be nearing an end.
But I hope that in 25 years we will have accomplished more than a series of policy changes prompted by fiscal austerity. I hope we will also have persuaded the country that the nation deserves a criminal justice system it can be proud of, and that respect for human rights is the only way to get there.
As those who have read them know, the dry language of international human rights treaties isn’t riveting. But, the treaties express the inspired—and inspiring—affirmation of the dignity of every human being. Most important in terms of criminal justice, they affirm dignity for those on either side of the law.
But are human rights really needed for criminal justice reform if the United States has constitutional rights? The short answer is yes. Constitutionally protected rights are narrower in scope than human rights and they have been eviscerated by courts all too willing to defer to legislators, public officials, and those they claim to represent. For example:
1. Race discrimination. Both international human rights law and U.S. constitutional law prohibit racial discrimination. While both are violated by laws that explicitly permit or require adverse distinctions on the basis of race, only human rights law recognizes that de facto discrimination can and does occur without conscious intent. For example, unwarranted racial disparities in arrests for drug law violations may constitute prohibited discrimination even if no law enforcement official consciously seeks to treat black and white people differently.
In contrast, under U.S. constitutional jurisprudence, the absence of malign intent precludes a finding of unlawful discrimination. In an era of structural racism and guarded speech, how often can racist intent be proven? The constitution as interpreted in the courts thus offers scant protection against discriminatory law enforcement.
2. Excessive sentences. Within a human rights paradigm, a criminal conviction is not a license for whatever length sentence legislators choose. The human rights to liberty and to be free of cruel punishment would have little meaning if they could be sacrificed willy-nilly to lawmakers’ whims. Sentences that are greatly disproportionate to the seriousness of the crime and the culpability of the offender offend human rights.
In contrast, under constitutional law, legislators have nearly unbridled discretion to mandate prison sentences. The U.S. Supreme Court has upheld as constitutional a mandatory sentence of life without parole for a first offense of selling a pound of cocaine and a 25-to-life sentence for a third offense of stealing a handful of videos.
3. Wretched prison conditions. Human rights law requires prison conditions to honor the basic humanity of those confined, prohibits torture and other cruel, inhuman or degrading treatment or punishment, and sets rehabilitation as a primary goal of incarceration. The dangerous and dehumanizing prisons and prolonged solitary confinement that are all too prevalent in the United States don’t pass muster.
In contrast, under constitutional law, prisoners’ dignity is protected almost solely by the Eighth Amendment’s prohibition against cruel and unusual punishment. Deliberate brutality may be prohibited, but officials are free to impose punitive regimes of deprivation, idleness, extreme isolation and misery. Rehabilitation is an option officials can adopt or discard as budgets, political climate, and their own preferences dictate.
4. Disenfranchisement. Human rights law affirms the importance of being able to participate in a country’s political life. Everyone has the right to vote, including those who are in prison or who have served prison sentences. While reasonable restrictions on the right to vote are permitted, broad brush disenfranchisement of everyone in prison or previously convicted of a felony is not. Although such felony disenfranchisement laws may be constitutional, they are a form of banishment from the polity that cannot be squared with human rights.
No doubt some who know little about international human rights law may suspect it is “soft on criminals” and fails to ensure justice for victims. But letting the bad guys off easy is not a feature of human rights. Human rights law insists on accountability for crime, but as importantly, it recognizes the difference between justice and egregiously disproportionate or discriminatory punishment. The rights and dignity of victims are not vindicated by laws that trample the rights and dignity of their victimizers.
The virtues of human rights law are unassailable. It is politically unbiased, comprehensive, sensible, internationally respected and grounded in a rich historical understanding of the strengths and weaknesses of humanity.
In the United States, however, human rights have not been fully integrated in the criminal justice system. Although the United States is a party to important international human rights treaties, it has insisted the treaties do not create judicially-enforceable rights. Although they on rare occasion look to human rights treaties when interpreting constitutional standards, U.S. courts do not provide redress for human rights violations and do not insist public officials comply with their human rights obligations.
We do not have to wait for the courts, however, to bring human rights home. Human rights are unmatched as guideposts toward a truly just criminal justice system. Advocates can look to them for a dignity-affirming template for progress. We can urge officials to turn to them for guidance in crafting policies that emphasize restraint in the exercise of the state’s penal powers. We can teach the public how they offer a vision of justice that is truly for all.
I am optimistic enough to believe the country will eventually embrace not just cost-effective criminal justice policies, but human-rights respecting policies as well. The skeptic in me recognizes this will not be easy and 25 years may not be enough time. Let’s hope the skeptic is wrong.
Jamie Fellner is senior advisor to the U.S. Program at Human Rights Watch. She has written extensively on U.S. criminal justice issues including felony disenfranchisement, racial disparities in drug law enforcement, sentencing policies and prison conditions.