[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Nov. 8



GLOBAL:

U.N. Investigator Talks About the Future of Solitary and the Death Penalty


Last week, renowned Argentinian human rights lawyer and torture survivor Juan 
Mendez ended his 6 extraordinary years as the U.N. special rapporteur on 
torture.

Mendez has been a fierce advocate against torture worldwide and a close ACLU 
partner in many areas, including fighting solitary confinement, the death 
penalty, and detention of children.

ACLU Human Rights Program Director Jamil Dakwar had a chance to ask him some 
questions about his incredible work (the answers have been edited for length 
and clarity). This Q&A is part 2 of 2, focusing on solitary confinement, death 
penalty, and prison conditions issues. Read part 1 of the interview here.

Early into your tenure, you conducted a worldwide study that concluded that 
solitary confinement can amount to torture. You've now just released a new 
report that builds upon that 2011 report and provides a comprehensive 
comparative analysis of the use of solitary confinement in 35 jurisdictions, 
including several states here in the U.S. What is your assessment of the state 
of the campaign to end solitary confinement both worldwide and here in the 
U.S.?

In 2011, we had the sense that solitary confinement had crept up on the 
international community and the public more generally without us paying much 
attention. In fact, it was a practice that was banned in the 19th century 
because it was cruel, and yet it made a comeback in the last few decades. We 
had the impression - but it was only that, an impression - that it was used 
more extensively and now in many parts of the world for different purposes. It 
was used not only as a disciplinary measure, it was used without due process 
guarantees, and it was used for longer and longer periods.

Now we have made some inroads - with the help of the Cyrus R. Vance Center for 
International Justice and the law firm Weil, Gotshal & Manges - into at least 
providing a little more factual information about practices around the world. 
But of course much more can be done.

Many people, including the ACLU, who have been campaigning against this 
practice - and specifically in the United States - I think are having an 
impact. First, the president himself has been calling attention to solitary 
confinement. 2nd, 2 justices on the Supreme Court have said that this needed to 
be looked at. Third, Senate hearings have called attention to it, and most 
recently a bill was introduced to curtail the use of solitary. And 4th, 
litigation has settled in California and New York in which the correctional 
authorities recognized that at least some aspects of the program must be 
reformed.

But in the U.S., we are a long ways away from establishing the regulations that 
we proposed and that have been included in the Nelson Mandela Rules, which are 
the new Standard Minimum Rules for the Treatment of Prisoners approved by the 
General Assembly in 2015. We still need to ban prolonged solitary confinement 
and indefinite solitary confinement. And regardless of duration, we need very 
clear and specific rules of due process, including judicial review of 
decisions. Finally, of course we need a complete ban on solitary confinement 
for children, persons with mental disabilities, and breastfeeding or pregnant 
women.

You've asked repeatedly to visit Guantanamo Bay and prisons here in the U.S. to 
examine conditions of confinement, and especially the use of prolonged solitary 
confinement, but were never allowed a visit. Are you confident that the next 
administration will continue a dialogue and engage your successor, Professor 
Nils Melzer, more than they have engaged you?

I think the dialogue with the U.S. government has been fluid. There were 
sometimes long periods of silence, but there has always been the willingness to 
at least listen to me. But that falls short of the level of cooperation that 
any member of the U.N. Human Rights Council has pledged to do.

I first asked to visit Guantanamo early on, in 2011. In 2012, the Defense 
Department invited me under conditions unsatisfactory under international law: 
basically a briefing by the authorities of the detention center, a visit to 
some but not all parts of the detention center, and no ability to interview any 
inmate or person detained there, even under supervised or monitored 
conversation. You can imagine that if I were to accept those conditions from 
the U.S., every country in the world would put similar restrictions on visits 
and would make prison visits a mockery of what serious monitoring by 
international bodies should be. Of course, I declined, but didn't give up on it 
- I just asked for new and better terms. Unfortunately, from 2012 on, that has 
not happened.

With respect to prisons on the mainland, yes, I asked to visit both state and 
federal prisons, eventually with a narrowed-down focus on solitary confinement. 
I was asked to indicate which prisons, although under the terms of reference by 
the Human Rights Council, I should be able to visit any and all prisons at any 
time during the visit. I agreed to select several states, and the State 
Department then asked those states if they were interested in a visit. 2 years 
ago, I was told that they were working on those states but that the federal 
prisons were unavailable. A year ago, in September 2015, I was told that the 
Bureau of Prisons authorized my visit to ADX Florence in Colorado under 
conditions that were acceptable generally, except that I couldn't interview 
anyone accused or convicted of terrorism.

In one of your thematic reports, you've said that "while international human 
rights bodies have yet to take the step of holding the death penalty to per se 
run afoul" of international law, "there is clearly a trend in this direction at 
the regional and national levels." Are you optimistic about the evolving 
consensus toward abolition of the death penalty? How do you assess U.S. 
developments on capital punishment in the last few years?

I do think the general international trend toward abolition is firm. Even in 
the U.S., the number of executions per year has dropped considerably in the 
last 10 years, for example, so I think we are moving in the right direction.

My sense, also, is that prohibition on torture has become a powerful argument - 
legal and moral - for states to abolish the death penalty altogether. As a 
matter of general international law, states can still choose to retain the 
death penalty. But at the same time those states have the absolute obligation 
to prevent cruel, inhumane, or degrading treatment or punishment, and I think 
it is very difficult to conceive of a painless form of execution - and 
inflicting pain and suffering is considered cruel, inhuman, or degrading 
treatment right there. And also, all states that retain the death penalty have 
the phenomenon of death row, with solitary confinement and the anxiety of not 
knowing when and where somebody's going to be executed.

(source: aclu.org)