Monday, July 12, 2010

US Prisons are Challenged in European Court of Human Rights

July 12, 2010

US Prisons are Challenged in European Court of
Human Rights...and Lose the First Round

Supermax Takes a Hit


The Federal Penitentiary Administrative Maximum
("ADX") in Florence, Colorado, where conditions
may violate the European Convention on Human
Rights' prohibition against "torture or inhuman and degrading treatment"

For years, four British nationals have been
fighting against their extradition to the United
States to face various terrorism charges, arguing
that such a move would place them at risk of
human right violations, as defined by the 1950
European Convention on Human Rights. When courts
in the UK ruled against the four men, they took
their cause to the European Court of Human Rights in Strasbourg.

Among other things, the British suspects have
argued that if extradited, they could face a
lifetime of solitary confinement under “special
administrative measures” (SAMs), most likely at
ADX Florence, the notorious federal supermax
prison in Colorado. Such confinement, they
contend, would violate Article 3 of the European
Convention on Human Rights, which states: “No one
shall be subjected to torture or to inhuman or
degrading treatment or punishment.”

The UK sought to have the suspects’ complaint
dismissed. But today, the European Court of Human
Rights “declared admissible” the portions of the
complaint dealing with supermax conditions, as
well as with life sentences without the possibility of parole.

A press release issued earlier today by the
Registrar of the European Court summarized the
case (Babar Ahmad and Others v. the United Kingdom) this way:

The applicants alleged in particular that,
despite the diplomatic assurances provided by the
United States, they were at risk, if extradited,
of being subjected to an unfair trial–due to the
use of evidence obtained through torture and/or
of coercive plea bargaining–at the conclusion of
which they could be designated as enemy
combatants. They also alleged that, once
extradited, they were at risk of extraordinary
rendition and life imprisonment without parole
and/or extremely long sentences in a “supermax”
prison such as ADX Florence where special
administrative measures would be applied to them.
They relied on Articles 2 (right to life), 3
(prohibition of inhuman or degrading treatment),
5 (right to liberty and security), 6 (right to a
fair trial), 8 (right to respect for private and
family life) and 14 (prohibition of discrimination).

Based on promises made by the United States, the
Court ruled that if extradited, the British
suspects would not be at risk of extraordinary
rendition, of being tried as enemy combatants, or
of unfair trials or discrimination. It had also
received assurances that the suspects would not
face the death penalty. When it came to
confinement for life in Florence ADX, however,
the Court found a credible case could might be
made that such punishment would violate the European Convention.

The Court requested further briefing on a number
of questions, including the following, before it issues its final ruling:

Given the length of the sentences faced by [three
of the four suspects] if convicted, would the
time spent at a “supermax” prison, the US
Penitentiary, Administrative Maximum, Florence,
Colorado (“ADX Florence”), amount to a violation of Article 3?

Does the Eighth Amendment to the United States
Constitution (prohibition on “cruel and unusual
punishment”), as interpreted by the federal
courts, provide protection equivalent to Article 3 of the Convention?

The four British terrorism suspects are
represented by the firm of renowned British human
rights lawyer Gareth Peirce (who wrote about the case
here). The information presented to the European
Court on Human Rights on their behalf reads like
a rundown of evidence for the torturous nature of
solitary confinement in general, and lockdown at ADX Florence in particular.

Following are the relevant paragraphs from the Court’s decision.

90. The applicants relied on a series of
newspaper articles on ADX Florence, including a
Time magazine article of 5 November 2006
described spartan cells and almost no contact
between prisoners and other people, since food,
mail and laundry were passed through a slot in
the cell door. Prisoners were strip-searched
before they were allowed to exercise. There were
also staff shortages which caused irregular meal
times, reduced telephone calls and exercise time.
A television interview with a former warden also
described frequent force-feeding as a result of
hunger strikes by prisoners in protest at their conditions.

91. The applicants also provided a report by a
psychiatrist, Dr Terry Kupers, which had been
prepared specifically for the present
proceedings. He considered that a supermax prison
regime did not amount to sensory deprivation but
there was an almost total lack of meaningful
human communication. This tended to induce a
range of psychological symptoms ranging from
panic to psychosis and emotional breakdown. All
studies into the effects of supermax detention
had found such symptoms after sixty days’
detention. Once such symptoms presented, it was
not sufficient to return someone to normal prison
conditions in order to remedy them. If supermax
detention were imposed for an indeterminate
period it also led to chronic despair.
Approximately half of suicides in prison involved
the 6-8% of prisoners held in such conditions.
The effects of supermax conditions were worse for
someone with pre-existing mental health problems.
Dr Kuper’s conclusions were supported by a number
of journal articles by psychologists and
criminologists, which the applicants provided.

92. The applicants also provided a copy of the
Istanbul statement on the use and effects of
solitary confinement, which was adopted at the
International Psychological Trauma Symposium in
December 2007. Its participants included the
United Nations Special Rapporteur on Torture. The
statement included the following on the effects of solitary confinement:

“it has been convincingly documented on numerous
occasions that solitary confinement may cause
serious psychological and sometimes physiological
ill effects. Research suggests that between
one-third and as many as 90 per cent of prisoners
experience adverse symptoms in solitary
confinement. A long list of symptoms ranging from
insomnia and confusion to hallucinations and
psychosis has been documented. Negative health
effects can occur after only a few days in
solitary confinement, and the health risks rise
with each additional day spent in such conditions.

Individuals may react to solitary confinement
differently. Still. a significant number of
individuals will experience serious health
problems regardless of the specific conditions,
regardless of lime and place, and regardless of
pre-existing personal factors. The central
harmful feature of solitary confinement is that
it reduces meaningful social contact to a level
of social and psychological stimulus that many
will experience as insufficient to sustain health and well-being.

The use of solitary confinement in remand prisons
carries with it another harmful dimension since
the detrimental effects will often create a de
facto situation of psychological pressure which
can influence the pretrial detainees lo plead
guilty. When the element of psychological
pressure is used on purpose as part of isolation
regimes such practices become coercive and can amount to torture.”

93. The applicants also submitted a report from
the Civil Rights Clinic at the University of
Denver, which had acted for a number of prisoners
at ADX Florence. The report noted that conditions
were even more severe for those prisoners who
were subjected to special administrative
measures. For example, such prisoners could only
communicate with his “attorney of record”. This
made it impossible to contact an attorney to
request representation to challenge special
administrative measures. Requests made directly
to the court to have an attorney appointed were
denied. There had been no successful challenges
to designation to ADX Florence and challenges
could only succeed where confinement in supermax
affected the prisoner’s date of release or where
he was severely mentally ill. The report accepted
that the step-down programme could take a minimum
of three years but prisoners could be removed
from it and returned to “general population” if
they were found guilty of misconduct or for
“administrative reasons”. The report highlighted
the cases of several Muslim prisoners who had
fulfilled all of the criteria for admission to
the step-down programme except for the
requirement that the original reasons for
placement at ADX Florence be “sufficiently
mitigated”. However, several prisoners had only
been transferred from lower security prisons to
ADX Florence after 11 September 2001 (despite no
evidence of their involvement in the attacks) and
thus it was difficult for them to demonstrate
that the reason for their placement had been
mitigated. Two Muslim clients of the Civil Rights
Center had spent respectively five and ten years
in general population units but had not been
admitted to the step-down programme. Another had
spent five years in a general population unit and
had only been admitted after retaining the Center in a lawsuit.

94. Both the applicants and Government made
reference to a letter dated 2 May 2007 from Human
Rights Watch to the Director of the Federal
Bureau of Prisons which followed a tour the
organisation had been given of ADX Florence. The
letter expressed concerns that a number of
prisoners convicted of terrorism offences had
been sent to the prison based on the nature of
their crimes and, despite good conduct since
their arrival, had remained in general population
units and thus outside the step-down programme
for up to nine years. The letter made suggestions
for improvement in respect of recreation, mail,
telephone use, the library. It also noted that
progress was to be made on better meeting
prisoners’ religious needs, such as the provision
of a full-time imam and commended the educational
programmes available through the prison’s
television system. The letter urged the prison
authorities to investigate reports of retaliation
against prisoners who were on hunger strike in
the form of transfer to harsher cells. The letter
also said that Human Rights Watch was extremely
concerned about the effects of long-term
isolation and highly limited exercise on the
mental health of prisoners and criticised reports
of rushed consultations between prisoners and
psychologists, as well as the fact that
evaluations were carried out via closed circuit television.

95. The applicants obtained a second letter from
Human Rights Watch, dated 21 August 2008, which
stated that Human Rights Watch considered
conditions at ADX violated the United States’
treaty obligations under the International
Covenant on Civil and Political Rights and the
United Nations Convention Against Torture. It was
unremarkable that “minor adjustments” had been
made to the regime but it remained in essence one
of “long-term and indefinite incarceration in
conditions of extreme social isolation and sensory deprivation”.

96. Human Rights Watch’s second letter also
provided extracts from two United Nations reports
from 2006 on supermax detention. In the first,
the United Nations Human Rights Committee stated:

“The Committee reiterates its concern that
conditions in some maximum security prisons are
incompatible with the obligation contained in
article 10 (1) of the Covenant to treat detainees
with humanity and respect for the inherent
dignity of the human person. It is particularly
concerned by the practice in some such
institutions to hold detainees in prolonged
cellular confinement, and to allow them
out-of-cell recreation for only five hours per
week, in general conditions of strict
regimentation in a depersonalized environment. It
is also concerned that such treatment cannot be
reconciled with the requirement in article 10 (3)
that the penitentiary system shall comprise
treatment the essential aim of which shall be the
reformation and social rehabilitation of
prisoners. It also expresses concern about the
reported high numbers of severely mentally ill
persons in these prisons, as well as in regular in [sic] U.S. jails.

The State party should scrutinize conditions of
detention in prisons, in particular in maximum
security prisons, with a view to guaranteeing
that persons deprived of their liberty be treated
in accordance with the requirements of article ID
of the Covenant and the United Nations Standard
Minimum Rules for the Treatment of Prisoners.”

97. The second report was from the United Nations
Committee Against Torture, which stated:

“The Committee remains concerned about the
extremely harsh regime imposed on detainees in
‘supermaximum prisons’. The Committee is
concerned about the prolonged isolation periods
detainees are subjected to, the effect such
treatment has on their mental health, and that
its purpose may be retribution, in which case it
would constitute cruel, inhuman or degrading
treatment or punishment (art. 16). The State
party should review the regime imposed on
detainees in ‘supermaximum prisons’, in
particular the practice of prolonged isolation.”

For more on ADX Florence, see 60 Minutes,;contentBody Supermax:

A Clean Version of Hell” and the ADX page at

Jean Casella and James Ridgeway edit Solitarywatch,
where this article originally appeared.

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