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I. The Rights of Incarcerated Girls under International Law

This report assesses the treatment of children according to international standards set forth in the International Covenant on Civil and Political Rights,⁵ the International Covenant on Economic, Social, and Cultural Rights,⁶ the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,⁷ the Convention on the Rights of the Child,⁸ the Convention on the Elimination of All Forms of Discrimination Against Women,⁹ the U.N. Standard Minimum Rules for the Administration of Juvenile Justice,¹⁰ the U.N. Rules for the Protection of Juveniles Deprived of their Liberty,¹¹ the U.N. Guidelines for the Prevention of Juvenile Delinquency, ¹² and the U.N. Standard Minimum Rules for the Treatment of Prisoners.¹³

In relation to the protection of the rights of children confined in a correctional facility, it is important to note that, with the exception of the right to liberty, children continue to enjoy in general all the fundamental rights and freedoms guaranteed under human rights law. An incarcerated girl does not forfeit her rights merely because of her confinement, or because she has fallen afoul of the justice system. Imprisonment, the deprivation of liberty, is the punishment. The conditions of imprisonment and the regime to which a girl is subject should not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in imprisonment. Any restrictions on girls’ human rights that are a consequence of their imprisonment must be justified, for example, on well founded considerations related to security.

The International Covenant on Civil and Political Rights (ICCPR) is one of the core human rights instruments providing for the protection of basic civil and political rights. The ICCPR also prescribes the rights due those who face criminal charges or confinement. Relevant provisions include the prohibition on arbitrary detention,¹⁴ a guarantee of due process,¹⁵ a right to be treated with dignity¹⁶ and a strict prohibition against egregious violations of fundamental rights, most notably the prohibition of torture and any form of cruel, inhuman, or degrading treatment.¹⁷ In 1992, the United States ratified the ICCPR. As a ratified international treaty, the ICCPR is not only binding on the U.S. as a matter of international law,¹⁸ but it also constitutes “the supreme Law of the Land” pursuant to Article 6 section 2 of the United States Constitution, and “the Judges in every State shall be bound thereby.”¹⁹

Several fundamental provisions of the ICCPR are directly relevant to the treatment of incarcerated girls. Article 24 proclaims that all minors are subject to special treatment without regard to gender or other status.²⁰  The jurisprudence of the Human Rights Committee, which oversees States’ compliance with the ICCPR, affirms that this outlaws discrimination based on sexual orientation.²¹ Article 10 provides that incarcerated juveniles must be kept separate from adults, and that the aim of detention shall be rehabilitation.²² Finally, articles 17 and 23 emphasize the importance of family and dignity, stating that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.”²³ The ICCPR’s standards and protections are of a fundamental and general nature. The fact that some of them are addressed in more detail in other, more specific international instruments does not affect their legal force pursuant to the ICCPR. Hence, some of the specific instruments discussed below formulate standards already prescribed by the ICCPR and are relevant not only directly, but also indirectly as providing guidance on the interpretation of the ICCPR in specific settings.²⁴

The United States has also ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). As a party to this treaty, the United States undertook not only to outlaw acts of inhuman and degrading treatment, but to ensure that education and information regarding the prohibition be fully included in the training and the rules or instructions issued in regard to the duties and functions of all personnel, public officials, and other persons who may be involved in the confinement or treatment of any individual subjected to any form of arrest or detention. Individual states within the United States are also bound.²⁵ Parties to the treaty have an obligation to systematically review arrangements for the custody and treatment of persons subjected to any form of confinement with a view to ensuring that no inhuman or degrading treatment occurs.²⁶ If a person alleges ill-treatment, he or she has a right to complain to, and to have his case promptly and impartially examined by, authorities of the jurisdiction in question.²⁷

In relation to its obligations under CAT, the United States has already been advised by the supervising committee that it should “adopt all appropriate measures to ensure that women in confinement are treated in conformity with international standards.”²⁸ Those international standards are found in other instruments that concern specific populations such as the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), both of which are especially relevant to the girls who are the topic of this report.

The Convention on the Rights of the Child was signed by the U.S. in 1995. Although the CRC is yet to be ratified by Congress,²⁹ the Supreme Court expressly acknowledged its authority as an expression of “the overwhelming weight of international opinion” in interpreting domestic legal standards, specifically stating that the “express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”³⁰

The Convention on the Rights of the Child identifies the family as the fundamental unit of society, emphasizing its importance for child development.³¹ The Convention contains fundamental guarantees including freedom from violence, sexual abuse, and discrimination, as well as rights to health care, an education, free expression, and privacy.³² The Convention specifically requires all government institutions responsible for the care of children to follow standards ensuring children’s health and well-being.³³ According to the treaty, “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.”³⁴ The Convention on the Rights of the Child also prohibits states from subjecting children to “cruel, inhuman, or degrading treatment.”³⁵

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), aimed at ensuring the equal rights of men and women, requires gender equality in areas such as education and health care.³⁶ Signed by the United States in 1980, it further reiterates the general demand of equality of the sexes found in prior international agreements. CEDAW, as well as the ICCPR, the Convention on the Rights of the Child, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), discussed below, all contain provisions prohibiting discrimination based on sex.³⁷

The ICESCR broadly articulates a number of basic rights of which some, such as the right to an education, are especially relevant to incarcerated children. In addition, failures by state governments to protect ICESCR rights such as the rights to family, state-provided education promoting a sense of human dignity, and physical and mental health care,³⁸ create and exacerbate the pathways to incarceration described in this report. The United States signed the ICESCR in 1979, but has yet to ratify it.

In addition to relevant treaties,³⁹ there is a body of international legal instruments setting out more specific standards protecting the rights of incarcerated children. While these standards are not treaties, and therefore not binding as a matter of law in the same way, they represent international consensus and are considered authoritative. They also provide interpretive guidance on the implementation of the rights addressed in the fundamental treaties discussed above. The oldest of these sets of rules is the Standard Minimum Rules for the Treatment of Prisoners, passed by the First U.N. Congress on the Prevention of Crime and Treatment of Offenders in 1955 and approved by the Economic and Social Council in 1957 and 1977. The U.N. Minimum Standard Rules for the Administration of Juvenile Justice (The Beijing Rules) were adopted in 1985 and many of their principles are also found in the Convention on the Rights of the Child. The U.N. Rules for the Protection of Juveniles Deprived of their Liberty were adopted in 1990 along with the U.N. Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines).

In sum, the ICCPR, the other treaties to which the United States is a signatory, and the U.N.-promulgated rules clarifying the broad commands of treaties reflect international consensus on standards applicable to the incarceration of children. It is not only the federal government that is bound by these laws. New York State’s institutions are also obligated to comply with these minimum standards and protections. First and foremost, as noted above, treaties ratified by the United States constitute “the supreme Law of the Land” pursuant to Article 6 section 2 of the Constitution, and “the Judges in every State shall be bound thereby.”⁴⁰ In addition, the fundamental guarantees enumerated in international laws and standards reflect the world’s consensus on applicable minimum standards; moreover, many of the enumerated rights coincide with those contained in federal and state law and professional standards governing juvenile facilities.

Finally, New York State should strive to meet and surpass these minimum standards regardless of legal obligations to do so. The norms referred to represent an international consensus as to good practice in the field of criminal justice and the rights and best interests of children. New York State considers itself a leader in many areas of policy, including in its response to crime and delinquency. In keeping with its pioneering sense of self, New York State should not only meet but exceed these standards in serving some of the most vulnerable children within its borders.

September 2006

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