It’s Official, It’s Torture…So What!
by Corey Weinstein, M.D.

             When it is bombing Kosovo or Iraq to control rich natural resources or strategic advantage the United States refers to human rights concerns and United Nations resolutions.  But when it is torturing its own people it trivializes and ignores UN directives and international law.

            On May 15^th of this year the headlines read, “UN Rebukes the US Over Prison Brutality.”1  The United Nations Committee on Torture cited a variety of ways in which the United States is violating the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that was ratified in the US on October 21,1994.

            The Committee expressed grave concern about torture and ill treatment by police and prison guards – much of it racially motivated.  The panel of ten independent UN experts objected to the sexual abuse of female prisoners by guards, prisoner chain gangs and the excessively harsh regime of supermaximum security prisons.  The US was admonished to abolish electro-shock stun belts and restraint chairs as methods of restraining those in custody, as their use almost invariably leads to breaches of the Convention.  The Committee also chided the US for holding minors in adult prisons.

            This is the first time the US has had to account to the UN for its record on torture.  The US report was almost five years overdue.  The findings were hailed by human rights organizations as an important verification of their own investigations into torture in the United States.  Amnesty International, Human Rights Watch and the World Organization Against Torture (WOAT) submitted detailed briefs to the UN Committee.  California Prison Focus (CPF) presented its findings for inclusion in the WOAT report.2 

            In addition the Committee recommended that the US withdraw all reservations, interpretations and understandings on which it conditioned its acceptance of the Treaty.  These include reservations that purport to allow the US to continue to execute juveniles, to incarcerate some children with adults, and to be bound by the Convention only to the extent that it matches the more narrow ban on cruel punishment contained in the US Constitution.

            The Committee was neither moved by the official US State Department report that trivialized the nature of the frequent abuses cited by the human rights reports, nor the insistence that while abuses by police and correctional staff take place, it is promoting compliance with policy guidance and enforcement.3 It was reported at a Spring 2000 Supermax Summit in Washington, DC that all the US did to inform the States about the Convention was to send a copy of it to each Governor and request that it be sent along to appropriate officials like prison wardens.  No training or conferences have ever been held.  No policies or guidelines have been developed, even for the Federal Bureau of Prisons or military police and prisons.

            It is important to understand that all Treaties are the highest law of the land.  All provisions of these documents must be implemented into law and guide administrative rules and executive orders.  No law or regulation should be put into practice without reference to and compliance with the Convention Against Torture and the other human rights treaties in effect.

            While the UN Committee Against Torture findings created a one-day splash in some newspapers, there has been no ongoing followup by the media regarding the actions of the Federal or State governments. 

            The human rights protection for those deprived of their liberty continues to worsen.  More long-term isolation units are being constructed – often housing the mentally ill. Cruel restraint methods and the use of stun weapons and chemical restraints are common.  The use of the death penalty is being expanded, and children are increasingly being housed in adult prisons.  In California the first large children’s unit has been opened in a maximum-security section of the California Correctional Institution at Tehachapi.

            In 1999 California Prison Focus conducted a survey of the conditions in the Security Housing Units of the California Department of Corrections (CDoC) its supermaximum prisons like those cited by the Committee on Torture.  These four units house 2,750 men and 50 women in long term isolation and sensory deprivation.  23.5 hours per day are spent in the cell.  All meals are in the cell.  There is no work, no education and no congregate activities of any kind, not even religious services.  Most have no windows in their cells and none have direct light.  Visiting is noncontact and very restricted, and no routine phone calls are permitted.  Only those prisoners who can afford it may buy their own TV or radio, and other supplies are very limited.  No art supplies are allowed.

            10% of the SHU population reported to CPF on their conditions.  60% described direct experience with excessive force, 63% reported excessive use of pepper spray used as punishment rather than restraint and 76% reported psychological harassment.  Unmet psychological needs were reported by 58% and medical neglect by 58%.  Medical neglect is particularly severe for those who suffer with serious life threatening illnesses such as HIV/AIDS and Chronic Hepatitis, and those with physical disabilities.

California’s SHU prisons are justified by the CDoC as anti-violence and anti-gang measures that would protect staff and allow law-abiding prisoners to successfully participate in programs.  Instead the SHUs and the prison yards are rife with fighting, gang activity and assaults on staff.  California is among the most violent and punitive prison systems in the US. The US Bureau of Justice reports that while assault rates in US prisons declined nationwide during the 1990s, in California the rate of prisoner on prisoner assault has increased 50% to a rate almost three times the national average, while the rate of prisoner on staff assault has increased 25%.  The noxious nature of the SHUs create situations wherein prisoners and staff alike lose control and become capable of even bizarre and cruel acts.  The smearing of feces, throwing of human waste, fights set up by correctional officers, and assaults on prisoners by guards are ordinary daily occurrences.

It is certainly true that State and Federal governments have been hopelessly negligent by not implementing the Convention Against Torture.  But the problem is so deep in California’s prison practices and culture that specific and detailed changes are required to alter the underpinnings of the plague of violence.  Some of the first steps must be modifications of the disastrous penal management polices the California Department of Corrections carries on in the SHU prisons.

CPF has developed a list of critical recommendations for the CDoC about the SHU facilities.4  Perhaps the most important is the development of independent public oversight.  Press, religious organizations and other private groups should have access to the facilities and the prisoners confined in them.  An oversight commission must be arranged with significant representation of human rights organizations and the public to monitor the SHUs.  It should have the power of random access to any facility and give public reports and recommendations to the Inspector General, Governor and Legislature.

The use of SHU facilities should be strictly limited to those few who are an extremely serious threat to prison safety and security.  Mere membership in a gang, absent actual dangerous behavior, should not be the basis for SHU confinement.  The present broad policy of SHU for all gang members is inhumane.  It is unreliable in actually identifying gangs, providing gang intelligence and in punishing gang membership.  Also it isolates older prisoners with leadership qualities who could reduce gang tensions.  SHU sentences should be for the shortest time possible, and no extension of time levied for minor rule infractions.

The present hearing process that passes out SHU sentences is seriously flawed.  Prisoners cannot present witnesses or meaningfully challenge charges against.  It is a true Kangaroo Court that must be altered to protect the legitimate interests of prisoners facing long-term social isolation and reduced environmental stimulation.  Prisoners should be entitled to a fair hearing and due process that will minimize the abuse of these procedures by staff and administration as retaliation against particular prisoners.  Prolonged SHU confinement should trigger an automatic review of the justification for such placement from an impartial, independent authority.  Due to disappearance and delay of prisoners’ paperwork and blanket bureaucratic denials, the inmate administrative grievance procedure (602 process) must be completely overhauled to insure timely and balanced justice. 

CDoC employs four Ombudsmen hired by the Director.  It is not enough to have only four Ombudsmen for California’s 33 prisons, and the present Ombudsmen operate without clear policies as to access to their services or timeliness of action.  There is no independent oversight.

Conditions of SHU confinement should be healthy and humane.  Each cell should have a window and natural light.  All cells must be provided with at least a radio.  Outdoor exercise in the fresh air and sun with equipment and space for energetic physical activity is required.  All prisoners should be doubled celled by choice only.

The rules and programs for prisoners should recognize their humanity.  Idleness and boredom are the present regimen.  Skill development must be provided to include literacy and conflict resolution, and an opportunity to read from many sources.  Correspondence courses should be provided privately and paid for by the CDoC as long as the prisoner is successfully completing course work.  Religious services and counseling should be available, and contact with family by phone available on a regular basis.  The longer an inmate is kept in the SHU the greater the obligation for increased opportunities for programs, activities and interaction with staff and other prisoners.

            Any prisoner with a preexisting serious mental health problem must be excluded from SHU confinement.  No mentally ill prisoner shall be forced to take psychiatric medications as a prerequisite for diversion from the SHU into more appropriate housing.  It is illegal and unethical to force prisoners to accept psychiatric medication as a condition for suitable housing.  The mental health of all SHU prisoners should be closely monitored through regular truly confidential meetings with mental health staff, and those who develop illness removed. 

            Staff should be fully trained about the restrictions imposed on their conduct by the US Constitution and International Law.  Careful staff selection must be done for the task of managing difficult inmates with dignity and respect. Cultural and ethic sensitivity training and education in conflict resolution tactics would help decrease the violent and toxic atmosphere in the units.  Because of the intimacy involved in guards providing all daily needs of SHU prisoners at the cell door and the history of sexual assault of women housed in the SHU, all male custody staff should immediately be removed from posts inside the SHU housing unit for women.   Consideration should be given to reassigning female custody staff from the units for men.  Physical or verbal abuse or other forms of inappropriate staff behavior like spreading rumors to create conflict or publicly disclosing confidential information must be stopped.  Rules governing staff must be strictly enforced.

            Finally, no prisoners should be released for the SHU directly to the general prison population or to the streets.  A special step down unit should be established to help their adjustment to a more complex and varied social system.

            The adverse findings against the United States by the UN Committee Against Torture provides us with the opportunity to evaluate and change the penal management practices that have turned California’s prisons into a hostile and hopeless battleground. The people of this State need to take seriously the dramatic findings as yet ignored by political and penal authorities.  The present pointless and inhumane practices in SHU prisons will only be reversed through acceptance of the findings of the UN and action to change the present social disaster.
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