Why the Incarcerated are our Constitutional Canaries

By Sarah Sibley

There is perhaps greater test of a liberal democracy’s fitness than in measuring it’s capacity and willingness to protect its incarcerated. Indeed, universal human rights are only, well, universal if they are vigorously wielded on behalf of the most unpopular. Only when those deprived of the means to protect themselves, with large democratic majorities squared against them, and who are seen as having excluded themselves from the benefits of society have equal access to the same constitutional principle’s as the democratically popular can we be sure that our Constitutional rights are truly universal.

The concept has been well established in our case law (perhaps more aspirationally than in practice thought that would take another blog post).  As Sandra Day O’Connor wrote in Turner v. Safely (1987),  “Prison walls do not form a barrier separating inmates from protections of the Constitution.” In fact, the best illustration of a right is when it is brandished on behalf of the most reprehensible—as Thurgood Marshall wrote, “When the prison gates slam behind an inmate, he does not lose his human quality. His mind does not become closed to ideas, his intellect does not cease to feed on a free and open interchange of opinion… nor is his quest for self-realization concluded.”

In the same thrust, according to the Human Right’s Watch, “Human rights standards acknowledge the unique vulnerability of prisoners to abuse and afford special protections to them.” Motivated by the same “rights and freedoms are fundamental to human existence” as our constitutionally established civil rights, it can be hard to distinguish the human rights framework from a simple constitutionalist or civil libertarian one. While the UN Declaration on Human Rights and later conventions and charters aim for many of the same ends as our constitutional protections, only a small fraction of the population can even recognize their provisions. Instead of  a more globally minded human righsts framework, Americans will nearly always substitute a constitutionalist framework as our common reference for the rights inherent in man. Indeed, our constitutions can merely be thought of as our local manifestation of t he human rights framework.However, as the UN Declaration on Human Rights outlines, responsibility to uphold humans rights is not solely the purview of the states themselves, but of international bodies. A human rights framework will reach many of the same ends, but in a more capacious framework that sees problems an American-centric view will not even recognize.

FILE - In this March 3, 2011 file photo, an exterior view of the International Criminal Court is seen in The Hague, Netherlands. Ten years ago the international treaty that created the ICC came into force, creating the world's first permanent war crimes tribunal. As the anniversary passes Sunday allegations of attrocities in Syria are mounting and the court stands powerless to intervene, while the first person it indicted, Ugandan warlord Joseph Kony, is at large. (AP Photo/Peter Dejong, File)

For example, the UN’s High Commission on Human Right’s Manual on Human Rights Training for Prison Officials, reminds us that long-term incarceration, something that seems baked into us since time immemorial, is a relatively recent Western phenomenon. “Prisons,” as they have  “existed in most societies for many centuries,” the manual outlines, have usually been “been places where individuals were detained until they underwent some legal process. “ In particular they might be places for defendants

“waiting to go on trial, or for execution or exile, or until a ransom, a fine or a debt is paid. Occasionally, individuals who posed a particular threat to the local ruler or state might be deprived of their liberty for a long period. The use of imprisonment as a direct punishment of the court was

introduced to Western Europe and North America in the 18th century. It has spread gradually to most countries, often as a result of colonial oppression. In some countries, the concept of imprisoning human beings does not fit easily with the local culture”

Only by taking a globalist perspective to we see long-term imprisonment for what it is- an almost arbitrary artifact of a particular religious view, and an 18th century Western construction. It is not necessarily intuitive to the American imagination that not everyone has deemed this large-scale system of long-term incarceration to be eternally necessary, and the UN report paints something that has become routine in the US, depriving someone of their liberty for extended periods of time, as exceptional. On the contrary, the manual asserts that  “a more and more widely held opinion is that prison is an expensive last resort, which should be used only when it is clear to the court that a non-custodial sentence would not be appropriate.” The United States, invoking justifications of our system that it is engaging in large-scale, long-term incarceration for the often orthogonal principles of guaranteeing our safety, ensuring the prisoner’s rehabilitation, reinforcing the sentence’s deterrent effect on others, and, lastly, to channel a society’s punitive impulse, seems to be principally concerned with the latter. This should raise eyebrows among anyone with a human rights bent. To fully engage with the human rights framework is to question the very basis of our system.

What’s more, our constitutional doctrine has been playing catch up with specific human rights obligations. We routinely run afoul of timely due process obligations, assurances of prisoner safety, and, arguably- the Convention Against Torture. Not only have many argued that our system of solitary confinement constitutes torture, but we fall short of it’s mandate that “there should be a formal and open set of procedures which prisoners may use to complain to an independent authority against any incident of torture or cruel, inhuman or degrading treatment or punishment without any fear of recrimination.” Prisoners are systemically deprive of process they need to guarantee their own rights.

While UN Human Rights charters  long ago outlawed the death penalty for those who committed crimes as juveniles, the Supreme Court did not recognize that fact until 2005. In a rare reference to international human rights treaties, Justice Kennedy’s majority opinion lamented that "Our determination finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." Yet that decision (and Kennedy more generally) is the exception rather than the rule for a court that is generally unwilling to make use of international standards and conventions- even when the US is a party to them.

The US similarly lagged behind the rest of the world in formally outlawing the deht penalty for the mentally impaired,  waiting until 2002 to establish a right enshrined in UN conventions for a decade.

The “cruel and unusual punishment” principle in our constitutional law has not been wielded as forcefully as a more pure human rights framework otherwise might.

A rigid constitutionalism is blind to the problems that a  human rights framework might better illuminate, and it is a sad irony that the US, the city upon the hill, is  a routine violator of human rights.