Torture in American Prisons

August 2, 2012

Unnamed California State Prison where inmates are incarcerated in a gym,
retrieved from http://www.economist.com/node/18744637

Anyone reading the title of this blog would immediately think that I am referring to Abu Ghraib or Guantanamo Bay, where prisoners in the “war on terror” were and are kept, but I am not. I am referring to a law called the Prison Litigation Reform Act.

Michael Mushlin is a law professor at Pace University who works on prison reform.  I happened to meet him a few years ago while on vacation in Ontario’s Algonquin Park, and later I invited him to Wilfrid Laurier University, where I work, to present a talk on US penal conditions. While I knew that the US has a horrifically high rate of incarceration, especially of black men, the pictures Michael showed us really drove the point home. Prisoners in California were stacked on narrow bunk beds as if they were in clean concentration camps. No one could live in such complete lack of privacy without getting into fights or going crazy.

Now I have learned from an article Michael wrote (reference below) that prisoners can’t sue for damages in the US, no matter how cruel, inhuman or degrading the conditions they live in, unless they can show that they actually suffered physical injury. Here are the cases Michael Mushlin describes. Steven Jarriett spent thirteen hours in a two and a half square foot cage in which he could not even sit, but even though he had a bad leg and was in pain, the court ruled he had not suffered any physical injury. Tyron Alexander and Kevin Carrol were stripped naked and confined together in a urine and feces ridden cell: they had to eat their food with their bare hands in that infected box, but the court ruled they were not eligible for compensation because they weren’t physically injured. And Essam Mohammed Jameel Najeed Adnan (note the Muslim name) spent three months in solitary confinement, with shackled legs and arms and only three hours a week out of his cell, as a result of which he suffered from depression; again, the court ruled he had not suffered any physical injury.

Michael Mushlin argues that these horrible cases violate the Eight Amendment of the US Constitution, which prohibits cruel and unusual punishment. They also violate the Convention against Torture, one of the few international human rights instruments the US has actually signed. Michael estimates about 75,000 to 100,000 prisoners in the US are kept in solitary confinement, yet as long as they are not physically injured, it doesn’t matter how mentally ill they become or how disgusting and degrading the conditions, they cannot seek relief from the courts.

So what this means, in my view, is that torture is widespread within US prisons. Maybe it’s time to try some Americans at the International Criminal Court for crimes against humanity—but wait a minute, we can’t, because the US hasn’t signed on to the ICC.

Michael Mushlin, “Unlocking the Courthouse Door: removing the Barrier of the PLRA’s Physical Injusty Requirement to Permit meaningful Judicial Oversight of Abuses in Supermax prisons and Isolation Units” Federal Sentencing Reporter, vol. 24, no. 4, April 2012,  pp. 268-75.