Tuesday, December 29, 2020
The latest stimulus bill includes a provision restoring Pell Grant eligibility to those who are incarcerated. The Obama administration began a pilot program awarding Pell grants to 12,000 incarcerated individuals. The educational program was a success and its restoration for availability for all prisoners had bipartisan support. Even Betsey DeVos supported the bill. Education is a critical way for those who are incarcerated to obtain jobs upon their transition back into civil society. Access to Pell grants is important but is only one of the necessary steps to improving the lives of both the incarcerated and the formerly incarcerated.
Recently PBS aired a series of reports on the difficulties faced by formerly incarcerated people. Often those returning to civil society face substantial barriers to improving their lives. The barriers placed by our bureaucracies who impose unreasonable costs and other demands on the formerly incarcerated. These restrictions prevent these formerly incarcerated humans from achieving financial success and independence. These are only some of the obstacles and indignities formerly incarcerated people encounter. To read the stories of those interviewed for the PBS series, click here.
Wednesday, December 2, 2020
The Trump Administration has stepped up its efforts to inflict as much inhumanity as possible before its demise. As of now, five people who ae incarcerated in the federal prison system are scheduled to be executed before January 20th.
The President removed the suspension of capital punishment that had been in place for well over a decade. The last prior federal execution was 17 years ago. Among those scheduled for execution is Lisa Montgomery. She would be the first woman executed by the federal government in 67 years. While Ms. Montgomery's crime was shocking, she committed the crime while suffering from PTSD from being sexually trafficked during her childhood. According to a Washington Post report on Ms. Montgomery " Cases in which women are sentenced to death often involve prosecutors portraying the defendant as straying from gender norms by, for example, being sexually deviant or an inattentive mother, Dunham said. He said many women who receive the death penalty were not in their right mind at the time of the crime."
Recently Ms. Montgomery's two lawyers became ill with COVID-19. A federal district court recently denied their quest for a delay in the scheduled December 8th execution. Ms. Montgomery is represented by clinicians and students of the Cornell International Human Rights Clinic. An appeals ordered a stay of execution until December 31st to provide Ms. Montgomery's lawyers an opportunity to recover and continue advocating for their client. The federal government promptly rescheduled the execution for January 12th. Wishing the clinic Godspeed in finding a way to extend the execution date for at least an additional nine days so the Biden administration may take action to prevent Ms. Montgomery's execution as well as other future executions.
You may sign a petition to assist Ms. Montgomery here.
Sunday, May 3, 2020
Despite advocacy asking states to release incarcerated individuals early, the US has released relatively few people in comparison with other countries. Prisons and jails are not safe for the incarcerated or for staff. Only a few days ago Governor Cuomo announced that pregnant women women would be released. But the group of women to be released is narrow. Only women with convictions for non-violent crimes will be released and only then if their remaining sentence is under six months.
Release wouldn't be as critical if jails and prisons were otherwise safe spaces. But those inside report horrid conditions. There is not effective or even enhanced sanitation. Women who are suspected of having symptoms are often isolated in deplorable conditions. At one prison, women were moved to a prion wing that had been closed in years. The cells are filthy with walls filled with mold. Others report a shortage of food, and and disinfecting supplies. No efforts are made at physical differences.
Human Rights Watch issued a report. While it is NY specific, the report is worth a read. The frightening conditions described are prevalent in most jails and prisons across the country.
Monday, December 23, 2019
In an amazing bi-partisan collaboration, last week Congress passed Ban The Box legislation. Under The Fair Chance To Compete For Jobs Act of 2019, the federal government and private employers contracting with the federal government will be unable to ask about a candidate's conviction history on a job application. These employers will be unable to inquire regarding criminal records until after a conditional offer has been made. Hundreds of thousands of formerly incarcerated people will have a chance of being hired under the new act.
Downside: The law will not take effect until two years from when the law takes effect, presumably the day when the President signs the bill into law.
Monday, May 13, 2019
Rejecting The Wisdom Of The Rome Statute: US Life Sentences Without Parole for First Time Non-Violent Offenders
The ACLU recently published a powerful report on individuals incarcerated for life for non-violent crimes. The investigators uncovered 3,248 individuals who are incarcerated for life for minor offenses. The report, A Living Death: Life Without Parole For Non-Violent Offenses, documents cases where minor crimes were committed by those who were mentally ill, addicted or financially desperate at the time of the offense. The offenses were petty. One stole a $159.00 jacket. Another participated in a $10.00 drug deal. More than half of the offenders are black. Even in the era of mass incarceration, these sentences are extreme. Many of those sentenced to life without parole for non-violent offenses were first-time offenders caught up in drug deals.
The women, many of whom were involved in crime because of their partner's drug operations, received life sentences but had no prior convictions. Many were sentenced under mandatory sentencing. Some judges commented on the unfairness of the sentences. One man was sentenced to life without parole when he was a juvenile. One woman was sentenced under conspiracy laws for drug conspiracy when she never saw nor touched drugs.
The report makes several recommendations, primarily legislative, that would eliminate life without parole for non-violent offenses and to make the change retroactive.
The report contains a section on comparative law citing that the "US is virtually alone in its willingness to sentence people to die behind bars for non-violent crimes." The report notes that the Rome Statute of the International Criminal Court requires a review of all life sentences after 25 years. Yet the US has not mandatory review. Indeed, the per capita rate of US offenders serving sentences of life without parole is 51 times greater than Australia and 173 times greater than the United Kingdom. By its terms, life without parole prohibits review in the US.
Thursday, May 2, 2019
Whatever Joe Biden is, he is not a feminist. Despite his original co-sponsorship of the Violence Against Women Act and his ongoing 20+ years support of the act, Mr. Biden does not understand what the #MeToo movement is about.
During the 1991 Clarence Thomas hearings, Mr. Biden left Anita Hill isolated and vilified by men analyzing her credibility. At the time, then-Senator Biden had control of whether to abandon the witness or permit other women to testify to the sexual harassment they endured from now Justice Thomas. Mr. Biden chose to stand with the boys. Now he refuses to apologize to Anita Hill. Politically there are advantages to his apologizing. Women of all colors would appreciate the acknowledgment of his role in further entrenching and institutionalizing the stereotype of women as liars. Professor Hill suffered. She was a target of controversy for years. Eventually, she left the University of Oklahoma after being shunned by the University President. The same President was previously a US senator and had voted for Thomas' confirmation. There was also a movement to defund Hill's endowed chair and to revoke her tenure. Biden's actions further entrenched the stereotype that women lie, and that what black women say can be further discounted.
Mr. Biden may believe that supporting the Violence Against Women's Act, originally passed three years following the Thomas hearings, was sufficient penance and that women would forgive him any perceived misogyny. Well, that might have been the case if Biden hadn't refused to apologize to Professor Hill. Not a feminist, and not self-reflective, Biden is refusing to take responsibility for his significant role in postponing for decades the restoration of women's credibility.
Sunday, January 13, 2019
Reducing Barriers to Reintegration: fair chance and expungement reforms in 2018 reviews recent legislative efforts to ease the lives of those US residents whose criminal records interfere with their participating in basic human rights. The report was issued by the Collateral Consequences Resource Center. The Center "The Collateral Consequences Resource Center is a non-profit organization established in 2014 to promote public discussion of the collateral consequences of conviction, the legal restrictions and social stigma that burden people with a criminal record long after their court-imposed sentence has been served."
Significant progress was made this year as activists succeeded in obtaining the support of legislators across the nation. Restoration of voting rights, as well as criminal record sealing reform where among the most significant changes of 2018. Florida was the most reported and significant state to restore voting rights after all incarceration, probation, parole periods have expired and all related fines have been paid. The law excludes those convicted of murder and sex offenses. The new law, which went into effect on January 8th, impacts approximately 1.6 million voters. Those votes are significant in a swing state. Disenfranchisement was promoted in the Jim Crow era and again during the 1960s. As back voters exercised their voting rights, legislators looked for new ways to block their voting. Combined with aggressive drug enforcement policies directed primarily against African Americans disenfranchisement proved to be an effective tool.
The Reducing Barriers report's executive summary includes the following:
In 2018, 30 states and the District of Columbia produced 56 separate laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and elsewhere. Many of these new laws enacted more than one type of reform. This prolific legislative “fair chance” track record, the high point of a six-year trend, reflects the lively on-going national conversation about how best to promote rehabilitation and reintegration of people with a criminal record.
As in past years, approaches to restoring rights varied widely from state to state, both with respect to the type of relief, as well as the specifics of who is eligible, how relief is delivered, and the effect of relief. Despite a growing consensus about the need for policy change to alleviate collateral consequences, little empirical research has been done to establish best practices, or what works best to promote reintegration.
The most promising legislative development recognizes the key role occupational licensing plays in the process of reintegration, and it was this area that showed the greatest uniformity of approach. Of the 14 states that enacted laws regulating licensing in 2018, nine (added to 4 in 2017) adopted a similar comprehensive framework to improve access to occupational licenses for people with a criminal record, limiting the kinds of records that may be considered, establishing clear criteria for administrative decisions, and making agency procedures more transparent and accountable.
The most consequential single new law was a Florida ballot initiative to restore the franchise to 1.5 million people with a felony conviction, which captured headlines across the country when it passed with nearly 65% of voters in favor. Voting rights were also restored for parolees, by statute in Louisiana and by executive order in New York.
The largest number of new laws—27 statutes in 19 states—expanded access to sealing or expungement, by extending eligibility to additional categories of offenses and persons, by reducing waiting periods, or by simplifying procedures. A significant number of states addressed record-clearing for non-conviction records (including diversions), for marijuana or other decriminalized offenses, for juveniles, and for human trafficking victims.
The reporters state: "The legal landscape at the end of 2018 suggests that states are experimenting with a more nuanced blending of philosophical approaches to dealing with the collateral consequences of arrest and conviction. These approaches include forgiving people’s past crimes (through pardon or judicial dispensation), forgetting them (through record-sealing or expungement), or forgoing creating a record in the first place (through diversionary dispositions). While sealing and expungement remain the most popular forms of remedy, there seems to be both popular and institutional resistance to limiting what the public may see respecting the record of serious offenses, and a growing preference for more transparent restoration mechanisms that limit what the public may do with such a record, along with standards to guide administrative decision-making."
Sunday, October 21, 2018
Joining a minority of US jurisdictions, the Supreme Court of Washington ruled last week that sentencing of youthful offenders to life sentences without parole violates the US Constitution. 21 jurisdictions including states and the District of Columbia having ruled similarly and the present minority of states demanding that juveniles not have a minimum sentence of "life" look is growing.
The man in question murdered three members of his family when he was 15. The victims were his parents and 5 year old brother. He obtained his GED and took courses through a community college while incarcerated. But as a psychologist testified, the youthful brain fails to consider long term consequences of actions.
In 2012, the US Supreme Court ruled that sentencing juveniles to automatic life sentences was unconstitutional. The Washington State legislature then passed a statute allowing youthful offenders to have their sentencing reviewed, but provided that life in prison was still an option. That option is now struck by the Supreme Court.
This opinion moves human rights forward in Washington State and comes shortly after the state's Supreme Court determined the state's death penalty was unconstitutional.
Thursday, October 18, 2018
The Constitution's failure to acknowledge full voting rights in black men and all women, has had long lasting repercussions. The founders ignoring the fundamental rights of more than half of the population produced devastating results that extend into this decade. Active voter suppression efforts are taken to prevent people of color from voting. Threats of arrest for voter fraud, and other acts of intimidation are not only common but are effective. One of the most insidious deprivations of voting rights is denying the right to vote to those who are incarcerated for felonies and for newly returning citizens. Maine and Vermont do not deprive those convicted of felonies of the right to vote, even while incarcerated. This is not so in other states..
In 2016, Crystal Mason of Texas voted in the presidential election. She had no idea that she was not permitted to vote while on probation. And certainly no one from the state, including her probation officer, ever told her she could not vote while still doing community service. Ms. Mason, who is African-American, was recently sentenced to five years in prison. Being both female and a woman of color, Ms. Mason is just the sort of individual that the founders never intended to enfranchise. The resulting avoidance by the drafters connects to present voting disruptions in a direct line.
A majority of states permit returning citizens to vote. Before someone you know who was formerly incarcerated participates in voting, it would be helpful for them to check and learn who is permitted to vote and when voting may resume in the jurisdiction of residence. One helpful resource may be found here.
Sunday, September 9, 2018
Between August 21 and today, a nationwide prison strike has been in progress. Incarcerated individuals across the nation have protested in various ways. Some stopped working their often grueling jobs that pay two to three dollars a day, sometimes less. Others have engaged in hunger strikes while many refused to purchase items from the prison commissaries. Commissaries charge hugely inflated prices. Strikers are particularly courageous as prison retaliation can be fierce, including solitary confinement.
One of the major issues that prompted the protests is the poor quality and often dangerous food served to the prisons. A Center for Disease Control study found that incarcerated people are more than six times more likely to get a food borne illness than other individuals. Many states' prison food does not meet the state's own minimal nutritional standards. The privatization of prisons, and prison food delivery has made conditions even worse as the quality of food deteriorates to make prisons and private corporations more profitable.
Other concerns include ending forced labor, creating humane prison living conditions and developing prison policies that prioritize the humanity of the incarcerated.
Sunday, July 22, 2018
If you had an opportunity to design housing for those who have been convicted of a crime, what would it look like? Would there be any need for solitary units, or even bars? An opportunity to eliminate cages? Spaces for recreation and education?
More than one prior post on this blog has described the horrors of Rikers Island.
For those of you living in New York, an important meeting will be held in the Bronx as a part of the Close Riker’s Island Campaign. The meeting organizers will challenge attendees to consider what a new detention facility would look like if designed by community members. The announcement reads:
Please join us to have a discussion about the Close Riker's Campaign and what it means to the Bronx Community. We would like to hear your thoughts and ideas about the creation of a Bronx borough-based jail. The Bronx is the only borough where a new facility will be built while the other detention centers in the various boroughs (except for Staten Island) will be expanded. What is your vision? What do you feel the Bronx community needs? What are your suggestions for bringing more people together to be part of the decision-making process of what affects our communities? What would a detention center look like if its vision was inspired by the community?
LOCATION 360 E 161ST ST BETWEEN COURTLANDT AND MELROSE AVE BRONX, NY 10451
For more information contact Carmen at 718-508-3440
Other communities are challenged to convene gatherings to discuss better systems of detention and demand humane conditions.
Tuesday, June 12, 2018
Last week President Trump commuted the sentence of a 63 year old woman who has been imprisoned for over twenty years, having been given a life sentence for drug trafficking. Alice Johnson had been convicted in 1996 for conspiracy to possess cocaine and for attempted possession of cocaine. Her crimes were non-violent but her sentence was considered by many to be disproportional to the offenses. Ms. Johnson became involved with drug trafficking during a desperate time in her life. She had lost her job, was divorced and experienced the death of her son.
Advocates have been working hard for years to secure Ms. Johnson's release from an Alabama prison. How was Ms. Johnson able to obtain success? Kim Kardashian took up her cause after reading a tweet about the case. Ms. Kardashian began advocating for Ms. Johnson, first by contacting Ivanka Trump and then Jared Kushner. Finally, Ms. Kardashian secured a meeting with President Trump. Ms. Johnson had been denied commutation under the Obama administration. President Trump noted that Ms. Johnson was a model prisoner and executed the documents necessary to release the great-grandmother.
At the urging of Sylvester Stallone, President Trump earlier issued a full pardon for now deceased heavy weight champion John "Jack" Jackson.
Other pardons were less well received publicly, but involved the famous or notorious. Dinesh D'Souza and Lewis "Scooter" Libby are among those who received Trump presidential pardons. So be a celeb or find yourself one should you seek a presidential pardon during this administration.
Wednesday, May 16, 2018
With the focus on elimination of mass incarceration and ending inhumane prison practices, the Pew Charitable Trusts have examined what works. With its motto of "Using Data to Make a Difference", their research has shifted from finding methods of changing attitudes for those incarcerated or at risk of incarceration to shifting criminal practice and policy to prevent incarceration in the first instance.
South Carolina, for instance, has seen a 14% reduction in numbers of incarcerated individuals since providing options for both sentencing and release. The enacted legislative reforms reduced penalties for minor drug and property crimes, while release options expanded with community supervision expanded. During the six year period covered by the study (2010-2012) six prisons closed, the crime rate decreased and the existing prison population is largely more violent criminals.
Since 2010, 35 states have raised felony theft thresholds but experienced no increase in crime. Generally, all US states have experienced a decrease in crime.
"Experts attribute the nation’s sustained drop in violent and property crime rates to a host of factors, including better policing; the increased incarceration of certain repeat offenders; an expansion in private security personnel; an aging population that is less prone to criminal behavior; and technological advances, such as the widespread use of surveillance cameras, car- and home-alarm systems, and digital transactions that have reduced the need for cash."
The US prison population is still the largest in the world. But what is apparent is that shifts in state policy make significant differences. Both federal and state prisons remain the sites of gross human rights violations, with the states incarcerating the clear majority of those engaged with the criminal justice system. Even seemingly small legislative changes can make significant differences. A good reminder that local human rights advocacy can create important change.
Sunday, May 6, 2018
Having just completed my first Inside Out program with our local women's jail, I witnessed first hand the transformation that occurs when those who have been deprived of adequate education begin their journey to learning. A 2013 RAND Corporation study affirmed what most suspected. Education is key to reducing recidivism. "Our meta-analytic findings provide additional support for the premise that receiving correctional education while incarcerated reduces an individual’s risk of recidivating after release." The promotion of Inside-Out programs was one topic discussed recently by Pulitzer Prize winning Prof. James Forman at the AALS Clinical Section Conference. Forman is the author of Locking Up Our Own, which looks at the roots of mass incarceration. Forman advocated for more college education classes in prisons and jails.
Receipt of books by those who are incarcerated is essential for continuation of "inside" self-education. But educational programs are not a priority, particularly for privatized prisons. Everything from phone calls to Skype visits with children are available only to prisoners who pay. Shortsighted is the most generous description I can attach to a recently announced policy that prisoners would no longer be able to receive books directly from distributors, except for one approved by the prison. And those books would come with a 30% mark up.
Family and friends of incarcerated men and women responded, as well as those inside, as well. Coleman federal prison in Sumterville, FL was one that announced the new policy and that facility was the topic of advocacy efforts through national listserves and individual inquiry. Then the policy was rescinded.
To the extent that the policy was a "test", the national grassroots response was sufficient to at least postpone its implementation.
Sunday, March 11, 2018
This past Friday I was privileged to participate in a conversation on Race, Redemption and Restoration sponsored by the Public Welfare Foundation of Washington, D.C. The conversation brought together a nationwide group of those working with incarcerated and formerly incarcerated individuals. I was humbled to be in a room filled with the formerly incarcerated and those who support them. As a white woman, I was there to learn. And I dd. The discussions gave me a broader perspective on the historical background of mass incarceration, which has been effective through a combination of voter suppression strategies, "war on drugs" and other tactics to enhance black oppression and the suppression of everyone of color.
The conversation was honest and magnificent. Many in communities are doing amazing work to support the formerly incarcerated, including working to change laws and policies that aid unjust arrests and sentencing; developing housing, and creating communities that foster dignity. Future posts will focus on some of the organizations providing innovative and effective supports.
I wish I could better capture the conversation's tone, as well as the caring and brilliance of the day. But for now let me restate part of the discussion and something that is obvious. The most effective action that a white person can take is to inform and influence other whites. Tempering the resistance to creating racial equity is something that whites are particularly well poised to do. How to transform racist views is something whites must learn. The oppressed carry enough burdens. Building white empathy is insufficient because creating empathy alone does not result in change. White people have to figure this out and carry the burden of the conversation. It is not up to the oppressed to teach others how to change.
Monday, March 5, 2018
Just Us Voices gives formerly incarcerated women an opportunity to tell their stories. The organization is soliciting formerly incacerated women to tell others about their experiences within and without of prison. To view a video of last years' voices click here. The penal system is not designed to accomodate women, their needs or their special circumstances. Just Us Voices encourages women to share their experiences as a form of healing, as a way to enfold others into the experience and eventually into advocacy.
Just Us Voices describes itself as "a new multimedia initiative that aims to transform the public dialogue on mass incarceration through storytelling and the lived experiences of formerly incarcerated women. Although women are the fastest-growing segment of the prison population, the national conversation on mass incarceration focuses primarily on the experiences of men. JustUS Voices will broaden the conversation to include perspectives and insights through the unique lens of gender, race and justice."
Wednesday, February 14, 2018
Under-reported in discourse addressing prison conditions and human rights violations is the particularly harsh treatment of women prisoners. The dis-empowerment that comes with gender oppression brings with it even more abusive conditions for pregnant women who have even less control over their lives than other prisoners.
A class action lawsuit filed in Almeda County, California addresses the horrific conditions suffered by incarcerated women the Santa Rita prison. The lawsuit details the horrific conditions, particularly for pregnant women. The lawsuit details pregnant women being denied blankets, healthy nutrition, and fresh air. Pregnant women are denied medical care and encouraged to have abortions.
A press release describing the suit states the "The women seek injunctive relief under the U.S. and state constitutions and demand an end to inhumane and sexually biased treatment at Santa Rita. Plaintiffs charge they are subject to more restrictions and harsher treatment than male prisoners, including being held in holding cells for longer periods of time, being denied equal access to jobs outside the cell, limited on classes and education, and subjected to more frequent strip searches and body cavity searches." One woman delivered her child alone with the baby's umbilical cord around the child's neck. The woman screams were not only ignored, a prison employee shut a door to muffle the sounds. Other inhumane treatment is described in the complaint.
Thursday, August 27, 2015
Last week, the Inter-American Commission on Human Rights (IACHR) found that the United States violated Bernardo Aban Tercero's rights to due process and a fair trial that are enshrined in the American Declaration of the Rights and Duties of Man. Tercero, a Nicaraguan national who has been on death row since 2000, is scheduled for execution in Texas on Wednesday. Tercero had deficient capital counsel at trial, sentencing, and at every stage of his post-conviction proceedings. His trial attorneys never conducted a comprehensive investigation into his social history, as required by the American Bar Association (“ABA”) Guidelines on minimum standards of representation in a capital case. There is also no evidence that Tercero himself was ever evaluated for mental illness or intellectual disability which could make him ineligible for the death penalty, despite significant evidence of risk factors. Human Rights First, which filed a petition in the case, is urging Governor Greg Abbott and the Texas Board of Pardons and Paroles to adhere to the IACHR’s recommendations to stay the execution pending review of the trial and sentencing.
Dallas News reports that on August 25th, the Texas Court of Criminal Appeals halted yesterday's scheduled execution. The Appeals Court returned the case to the trial court for review.
Tuesday, August 25, 2015
In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.
On Friday, Judge Gee entered her order. She ordered the release of immigrant children held at the detention centers. More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania. The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention.
The government has until October 23rd to comply with the order.
One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement. While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.
The administration has not yet announced if it will appeal Judge Gee's decision.
Wednesday, August 19, 2015
by Deborah Popowski, Lecturer on Law and Clinical Instructor, Harvard Law School, guest contributor
On August 5th, the Inter-American Commission on Human Rights released a report denouncing the United States government for unlawfully detaining men in Guantánamo in violation of their human rights and offering recommendations for how the Obama administration should hasten the prison’s closure. It calls for the immediate release of all detainees who will not be charged or tried, and for the use of federal courts instead of military commissions to prosecute those not released.
Personal Integrity and Access to Justice
The 136-page report, “Towards the Closure of Guantánamo,” provides the most recent holistic and independent account of conditions in the prison. The Commission expresses particular concerns about indefinite detention; the use of torture and other cruel, inhuman, or degrading treatment; a discriminatory detention regime; limited or no access to judicial protection; lack of due process; and lack of an adequate defense.
The Commission calls on the US to end the inhumane practice of force-feeding detainees and to ensure that all men receive “adequate medical, psychiatric and psychological care” that respects principles of confidentiality, patient autonomy, and informed consent.
The report also takes on the conditions that contribute to these grave health problems, including to prolonged isolation, incommunicado detention, and indefinite detention. On the latter, it notes having “received specialized information on the severe and lasting physiological and psychological damage caused by the detainees’ high degree of uncertainty over whether they will be released and when; or whether they will see their family members again.” It adds that the “continuing state of suffering and uncertainty creates grave consequences such as stress, fear, depression, and anxiety, and affects the central nervous system as well as the cardiovascular and immunological systems” and concludes that the continued, indefinite detention of men in Guantánamo violates their right to humane treatment.
The Commission’s analysis of personal integrity violations underscores that the fulfillment of this right requires providing detainees with meaningful avenues to monitor, challenge, and remedy their treatment and conditions. To this end, it asks the US government to declassify evidence of torture and ill-treatment, disclose conditions in Camp 7, ensure accessible and effective judicial review, and grant access to an independent monitoring body to investigate detention conditions. Additionally, it urges compliance with the UN Committee Against Torture’s recommendations to investigate all abuse allegations, prosecute those responsible, and ensure effective redress for victims of torture and ill-treatment.
An entire chapter is devoted to detailed analysis of the judicial remedies available to detainees post-Boumediene, which the Commission concludes are neither adequate nor effective, citing concerns with the operation of presumptions and burdens of proof. While the report credits the US with positive changes made via the Military Commissions Act of 2009, it ultimately finds that the military commissions system fails to meet the government’s human rights obligations. Its main areas of concern include their “independence and impartiality …, the uncertainty regarding the application of the US Constitution; respect for the right of equality before the law, to confrontation and to a speedy trial; respect for the principle of legality, and the retroactive prosecution of crimes.”
“A Prison for Foreign Muslim Men”
The Commission notes that Guantánamo’s exceptional regime is rendered even more problematic because of its exclusive application to Muslim men of non-U.S. nationalities, “which creates the appearance that it is targeting individuals based on their nationality, ethnicity, and religion.” Reports of religious-related abuse also played a role in the Commission’s personal integrity analysis. The report’s conclusions and recommendations remind the US government of its obligations to respect detainees’ rights to freedom of conscience and religion, and specify that these include guaranteeing access both to communal prayer and a Muslim chaplain.
The Commission calls on the US to allow transfers for trial, emergency medical treatment, and also release and settlement in the cases of cleared men who cannot return to their home countries and are unwilling or unable to settle elsewhere. To that end, it asks Congress to repeal the National Defense Authorization Act provisions that restrict transfers of Guantánamo detainees to the United States, and urges the executive to interpret the NDAA requirements “in a flexible manner” so as to meet its rights obligations. The report also highlights other necessary measures within the executive’s power, such as expediting the Periodic Review process, stepping up diplomatic negotiations, accelerating transfers to countries of origin or third countries, and ensuring that Yemeni detainees cases receive individualized reviews.
Finally, it calls upon other member states to accept detainees for resettlement. Given the Commission’s influence in the region, advocates are hopeful that this report, with its detailed and unequivocal critique of the regime’s unlawfulness, will significantly help efforts to resettle some of the cleared men in Latin America.