A reader recently called our attention to an long piece in the London Review of Books by Gareth Peirce, a British solicitor known for taking on high-profile–and often controversial–human rights cases. In the 1993 film In the Name of the Father, Peirce, played by Emma Thompson, is shown defending a group of Irish men wrongly convicted for bombings carried out by the IRA; more recently, she has represented Guantanamo detainees and other prisoners of the so-called war on terror.
In her May 13 article, Peirce argues against extraditing terrorism suspects from Europe to the United States. The extradition of several such suspects has been frozen for years while courts in the UK–and now the European Court of Human Rights in Strasbourg–determine “whether there is a serious risk that sending them to the US would be to deliver them up to flagrantly unfair trials, severe and prohibited ill-treatment, or the death penalty.” These determinations turn largely on the question of whether the suspects would be held indefinitely without trial or put before military tribunals, rather than tried in civilian courts.
But Peirce argues that in today’s America, even the civilian criminal justice system is so compromised that ”almost every basic safeguard necessary to achieve a conventional fair trial for the accused has, in practice, long since been destroyed.” It is true that “no European state has been permitted to extradite in the absence of an assurance that conviction would not bring the death penalty.” But there is nothing to protect extraditees from “the grim reality of solitary confinement in a small sealed prison cell before and after trial, or sentences that could amount to a hundred years.”
In a powerful condemnation of solitary confinement as it is currently practiced in the United States, Peirce asks:
But what of extradition to a future of total isolation? Can we comfortably, and within the law, contemplate sending men to that fate? Some of the men who currently await extradition are imprisoned in a small unit, where they are at least in the company of other human beings, and within the unit’s limits can talk, argue, study, cook, write, paint or exercise outdoors in whatever sunlight imprisonment in Worcestershire may afford them. This is not luxury. It is deprivation, of family life, of freedom and of hope. But once on American soil these men have been told by US prosecutors to expect total isolation. Each extraditee will be held under Special Administrative Measures until trial and then, on his anticipated conviction, in solitary confinement in a Supermax prison, ADX Florence in Colorado, potentially for life and without any prospect of parole. He will be confined in a cell 7 feet by 12 feet, with a moulded concrete bunk; his food will be delivered through a slot in the door; external communication, even with a doctor, will come via a closed-circuit television in his cell. For one hour in each day, he will be able to visit a small dark pit where he can exercise alone. His fellow prisoners (although he will not see them) will be ‘the most severely psychotic people’ the most experienced analyst of the effects of Supermax confinement, Terry Kupers, has seen in 25 years of psychiatric practice, and he will be likely, since the primary cause is isolation, to become one such himself. His solitary confinement can and perhaps will continue for life.
After his tour of America in 1842 Dickens wrote of the use of isolation in the American prisons he had seen: ‘I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body.’ By the late 19th century, evidence of the devastating effects of solitary confinement on prisoners’ health had surfaced, and in 1890, the Supreme Court, considering the case of a death-row prisoner, echoed the language of today’s doctors: ‘A considerable number of the prisoners fell, even after a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them and others became violently insane; others, still, committed suicide.’ In the 19th century, isolation was intended to provide an opportunity for the redemption of the prisoner’s Christian soul, but Supermax prisons emerged, penologists argue, from a powerful ‘rage to punish’ felt by many politicians and members of the public in the late 20th century. Craig Haney, one of those penologists, believes that the US now celebrates and often demands, rather than lamenting or merely tolerating, official cruelty and the infliction of pain in its criminal justice system. What once passed for ‘penal philosophy’ now amounts to little more than devising ‘creative strategies’ to make prisoners suffer.
Supermax confinement, built on the twin pillars of prolonged solitary confinement and extreme severity of conditions, is one of those strategies. The cells are carefully designed by architects to limit access to natural light, to eliminate stimulation or distraction, and reflect a total disregard for the principle that all prisoners are members of the human community. Although one US district court judge, in the case of Madrid v. Gomez in 1995, described conditions in a Supermax unit as pushing at ‘the outer bounds of what most humans can psychologically tolerate’ and in the case of mentally-ill prisoners has ‘the equivalent of placing an asthmatic in a place with little air to breathe’, no constitutional bar to their continuing use has been imposed by any court.
Even Denmark, a country considered by the UN special rapporteur on torture to be entirely compliant with every other human rights obligation, was warned following an inspection that to detain a suspect in solitary confinement, if it were done in the expectation that it might induce an admission of guilt, could constitute torture contrary to Article 3 of the [European] Convention [on Human Rights].* The same special rapporteurs have expressed particular concern about conditions in maximum security prisons in the US which violate internationally protected rights, but they can do no more than register concern since they have no right to conduct internal inspections. Despite continual recommendations by the UN Human Rights Committee that the US government should scrutinise conditions in Supermax prisons and implement minimum UN standards, there have been no changes in practice, and the federal government is building more such facilities. Human Rights Watch found in 2000 that there were nearly 20,000 prisoners held in complete isolation in the US, nearly 2 per cent of the prison population (by now unofficial figures range between 25,000 and 70,000).
Peirce goes on to consider how courts in London and Strasbourg have responded to brutal conditions in U.S, prisons, including the prospect of permanent solitary confinement.
Such few judicial honours as can so far be awarded go to the extradition judge in [London] who so straightforwardly rejected the idea that a military commission conformed with the fair trial guarantees of the European Convention. On the isolation imposed by pre-trial SAMs he expressed extreme anxiety – ‘It is in relation to these that I find the greatest grounds for concern’ – and in the case of Abu Hamza, so disabled that he was likely if convicted to be imprisoned in ADX Florence only briefly before transfer to a prison hospital, he found that ‘but for that fact’ the brutal isolation would violate Article 3.*
When the same issue has been considered in the high courts, the judges have sidestepped the facts: ‘For a mature and sophisticated democracy that respects the rule of law, it would be unusual, to say the least, if one of its lawful and carefully prescribed methods of incarceration were to be condemned for giving rise to an automatic violation of Article 3.’ The inclusion of the word ‘automatic’ is intended to describe the protection that litigation provides for a prisoner once in solitary confinement, but the prospects for an effective challenge are non-existent; there is no funding for prisoner litigation in the US and administrative obstacles prevent even the most determined litigant having his case heard within ten years. In any event, even prisoners who have gone for years without speaking to anyone other than Federal Bureau of Prisons officials have not been able to establish a claim under the 8th Amendment to the constitution, which prohibits cruel and unusual punishment, since human contact is not classified as a ‘single identifiable human need such as warmth, food or exercise’. Extreme isolation, even for life, is not considered under the US constitution to be a denial of the ‘minimal civilised measure of life’s necessities’.
Strasbourg, the European court of last resort, has been criticised in the past for a lack of imagination, or at least of judicial understanding, of the impact of solitary confinement on prisoners, and of having ‘too ready an acceptance of state interests’. On the one hand, it has been reluctant to judge actual solitary confinement regimes as being in violation of the Convention, but, on the other, it has reminded itself of the irreducible nature of Article 3: ‘States face very real difficulties in protecting their populations from terrorist violence … the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3.’
But it is precisely the ‘nature of the offence’ that will condemn the extraditees to conditions of imprisonment and lengths of sentence that are an inevitable consequence of the civilian trials constitutionalists argue for, established as these practices have become within an entirely constitutional structure. Is indefinite military detention really any worse a prospect?
You can read the full article at the web site of the London Review of Books. Although most of the site requires a subscription to access, the LBR has made this and other important commentary by Gareth Peirce available to all readers.
* Article 3 of the European Convention on Human Rights: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”