The Eighth Amendment of the U.S. Constitution prohibits cruel and unusual punishment, interpreted to reflect evolving standards of decency. Prohibited punishment includes excessive or unnecessary force by prison staff that is not applied in a good faith effort to maintain or restore discipline but instead is done maliciously or sadistically to cause harm. There is no jurisprudence on the constitutionality of using dogs for cell extractions.
State and federal correctional policies regarding use of force typically reflect three key principles: 1) force should only be used when necessary; 2) the nature or amount of force used should be proportional to the need, i.e., no more than necessary; and 3) physical force should not be used as punishment.44 Use of force policies also typically enumerate the kinds of force that may be usede.g., some permit the use of electronic stun devices, others do not. As noted above, there is a pervasive view within corrections that the use of dogs for cell extractions is not a necessary or appropriate option because there are always better and equally effective alternatives. There is also a sense that there is something inherently wrong or distasteful in using an animal for this purpose.
International human rights law illuminates why the use of dogs in cell extractions is wrong. The International Covenant on Civil and Political Rights, which the United States has ratified, mandates that [a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Human Rights Watch believes that deliberately instilling terror into an inmate by exploiting the primal fear of aggressive dogs and deliberately permitting a snarling, barking dog to bite the inmate cannot be squared with fundamental human dignity.
The Covenant, as well as the Convention against Torture (also ratified by the United States), both affirm the right of inmates to not be subjected to treatment that constitutes torture or is otherwise cruel, inhuman or degrading. We believe that the use of dogs in cell extractions is degrading and could even be inhuman, depending on the extent of injury from the dog. The use of a fierce animal to control an imprisoned person is inherently humiliating, denying an inmates personhood. Terrifying an inmate into compliance also denies his personal integrity. It reduces the inmate himself to an animal crouched in fear in the face of attack.
The principles of proportionality and necessity also come into play here. International human rights law instruments limit the staff use of force in prison to situations when it is necessary, and then permit only so much force as is necessary.45 In light of alternative methods to maintain control over an individual inmate who is locked in his cell, it is difficult to conceive of situations in which the use of an attack dog for a cell extraction could ever pass the tests of necessity and proportionality.
44 See Appendix for relevant provisions from Standard Minimum Rules for the Treatment of Prisoners, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (which applies to prison officials as well as police).
45 Standard Minimum Rules for the Treatment of Prisoners, Rule 54(3), adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders; The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principles 4,5, and 15, adopted Sept. 7, 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders; and Code of Conduct for Law Enforcement Officials, Article 3, adopted Dec. 17, 1979 by General Assembly resolution 34/169.