Latest Blog Entries

The IHR Clinic blog is written and edited by students and recent alums of the University of Chicago Law School. Featured on the Huffington Post, the IHR Clinic blog examines contemporary issues in human rights, as well as social, political and cultural events viewed through the lens of human rights. 

Pursuing Humane Prison Practices: Solitary Confinement Reform in the United States

by Megan Coggeshall, University of Chicago Law School Class of 2019

In the United States alone, there are an estimated 80,000 inmates held in solitary confinement. These people are kept alone in their cells for an average of 23 hours per day and have very little opportunity for human contact. The cells where inmates are isolated are small—on average 85 square feet—and contain a bed and desk, sometimes both made of concrete, as well as a metal toilet-sink combination. Most cells don’t separate the toilet from the rest of the cell, leaving inmates to eat within close proximity to it. Inmates generally spend the one hour outside their cell exercising alone in a small, sometimes caged-in area, that isn’t always outdoors. When these inmates are allowed visits, they are separated from their families by a partition, so they may go years without any meaningful human contact.

There isn’t a clear explanation for the starkness of conditions in American solitary confinement units. However, there is a higher public demand for punitive treatment of prisoners in the United States than in many other countries. This public sentiment is exacerbated by the proliferation of for-profit prisons that try to cut whichever services they can to reduce costs, and the predominant view in politics that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Two things, however, are clear: time spent in solitary confinement is deeply harmful to both the mental and physical health of inmates, and one struggles to identify a real benefit of the practice that could justify the cost. Many inmates experience panic, anxiety, rage, depression, and hallucinations in response to solitary confinement. Inmates in solitary confinement also engage in disproportionately high rates of self-harm and suicide compared to the general prison population. Common physical harms of prolonged solitary confinement include headaches, hypertension, heart palpitations, digestive problems, and weight loss. These harmful effects can become permanent within 15 days, making reintegration into the general prison population and release from prison difficult. Studies suggest that time spent in solitary confinement increases recidivism, especially when prisoners are released into the community directly from solitary confinement.

According to international human rights standards, the American status quo isn’t compatible with basic principles of human dignity. Indeed, the Office of the UN High Commissioner for Human Rights recommends abolishing or strictly restricting the use of solitary confinement. Even without eliminating solitary confinement, there is much that the United States can do to ensure more sincere compliance with Article 10 of the International Covenant on Civil and Political Rights, which guarantees the right of all inmates to be treated with humanity and respect for their inherent dignity. Part of this requires recognition that, under some circumstances, the use of solitary confinement can be considered torture, or other cruel, inhuman, or degrading treatment or punishment (CIDT). Imprisonment—the loss of freedom—is itself a profound punishment, and prison conditions should not aggravate inmates’ suffering.

Mindful of these considerations, the United Nations created prison standards to guide countries’ prison policies and ensure they do not subject inmates to conditions amounting to torture or CIDT. The latest version of the Standard Minimum Rules for the Treatment of Prisoners was published in 2015 (known as the Mandela Rules). Many of the United States written policies for federal prisons conform to these guidelines. However, there are also many situations where the Mandela Rules go further to protect the health and well-being of inmates, particularly when considering the amount of discretion American prison officials have over prison operation in practice. For example, unlike in the United States, the Mandela Rules require that prisoners have access to at least one hour of outdoor exercise per day. The Rules also require more human contact by prohibiting limitations on family visits as a disciplinary sanction and allowing for social contact among prisoners. Additionally, and perhaps most importantly, the Mandela Rules limit the number of consecutive days a prisoner can be in solitary confinement. In fact, the UN considers indefinite solitary confinement and, in most cases, solitary confinement exceeding 15 continuous days, to be torture or CIDT due to the potentially permanent health effects described earlier.

This is not to say, however, that change is not possible in American prisons. In fact, the past few years have seen many reforms at the state and federal levels that are bringing the United States closer to compliance with the Mandela Rules and to ensuring humane treatment of inmates in solitary confinement.

For example, in 2016, then president Obama issued an executive order banning solitary confinement for juvenile offenders in the federal prison system. This executive action also prohibited solitary confinement as a disciplinary measure for prisoners who commit low-level infractions. When solitary confinement is used, the new policies implement a Department of Justice report which suggested increasing out of cell time to improve mental health, and discouraged placement in solitary confinement during the last 180 days of inmates’ terms to facilitate the transition back to the community. Additionally, the rules now limit solitary confinement as punishment for a first offense to 60 days. This is an improvement from the previously permitted 365 days, but still fails to conform to international standards both in duration and in purpose since international standards discourage the use of solitary confinement as punishment.

One recent reform at the state level is the implementation of “step-down” programs that allow inmates in solitary confinement to gain more out of cell time and access to programming as they move down security classifications through good behavior. Additional activities include sports equipment during recreation, in-cell televisions, or more phone calls and visits. Again, while this is an improvement, some of these earned privileges, like adequate visits, are considered the minimum under international human rights law. Additionally, many inmates in solitary confinement struggle with mental illnesses that may make effective participation in these programs difficult unless prison officials are trained to identify symptoms of mental illness.

Lawsuits alleging violations of the Eighth Amendment’s prohibition on cruel and unusual punishment have also led to reforms at the state level. For example, because of a settlement in Delaware, inmates who need mental health services now have access to them. Delaware inmates now must have their mental health considered prior to placement in solitary confinement, they must spend at least 17.5 hours per week out of their cells, and prisons must create individualized mental health treatment plans.

Colorado has become a leader among the states in voluntarily setting humane solitary confinement standards. In 2013, the state prohibited the use of prolonged solitary confinement for seriously mentally ill prisoners. It also recently passed a law banning the use of solitary confinement for more than 15 consecutive days for all inmates, becoming the only state to meet international standards on duration of solitary confinement. Colorado’s changes were inspired by the Head of Corrections’ participation in drafting the Mandela Rules. He became convinced that prolonged solitary confinement is unethical since it manufactures and aggravates mental illnesses. After implementing these reforms and others, Colorado’s solitary confinement population decreased from 1,500 in 2011 to 18 in 2017.

These reforms are a step in the right direction toward ensuring more humane conditions of solitary confinement in the United States. However, since the reforms are largely proceeding state-by-state, the country has a patchwork of laws that provide prisoners with varying levels of protection. For example, many states still allow solitary confinement for people with serious mental illnesses and minors, or permit indefinite solitary confinement. To ensure that every prisoner is treated with dignity and respect, the United States must continue to reform its solitary confinement practices. Turning to international human rights standards for guidance, as Colorado has done, is a good place to start.

For more information about efforts to reform solitary confinement practices in the United States see: the ACLU solitary confinement projectSolitary Watch, the Vera Institute of Justice, and Amnesty International.

Human Rights as a Template for a Better Future

by Alli Hugi, Class of 2018

Working with the International Human Rights Clinic, I’ve had the opportunity to discuss pressing human rights issues with people from Pakistan and Myanmar to Mexico and the United States. Some similarities connect these conversations. These range from shared guiding principles (in the end, everyone is trying to make the world better for their children) to explanations that distract from the real issues (across cultural borders, people are quick to blame society’s woes on the sins of the new generation).

These conversations have been interesting for many reasons but one has stood out: how they’ve revealed an important disagreement over what it means for something to be a “human right” and the proper approaches for guaranteeing a right.

As part of our clinic work, my peers and I discussed the United Nations guidance that militates against ever using mediation in domestic abuse cases with Pakistanis who stressed that such an approach was simply incompatible with their cultural norms, which emphasize community-based, mediated solutions. During interviews in Yangon, we talked about the importance of compensation for seized land to allow individuals to gain ground economically. Some locals, however, informed us that at least some people in Myanmar were likely to donate any money received to their local pagoda, rather than invest it in new property. While human rights standards counseled against mediation in the domestic violence context and favored monetary compensation for government land seizures, our colleagues did not view these as appropriate steps to take to guarantee the underlying rights.    

The heated ongoing debate on healthcare in the US raises even more fundamental questions about what we mean by labeling something a “human right.” The debate is marked by fundamental disagreement over whether or not healthcare is a human right.  

This debate demonstrates how, even within the US, it is incredibly hard to reach consensus on what we mean by a “human right” and, even then, what is the best approach to fulfilling that right. 

And that probably should not come as a surprise. After all, human rights can be as fundamental as the prohibition of slavery and as contemporary as the right to internet access. They are referred to as universal and inviolable—and yet are widely and egregiously violated. And it often seems that other countries respond to these violations with little more than muted criticism. The shamefully lethargic response to the ongoing open-air slave trade in Libya has highlighted this very tension.

So why laud something as a “human right” if the global response to its violation is too often angry inaction? How is designating something a “human right” ultimately helpful or useful?

To answer this question, we have to think about what human rights add to the other categories of rights invoked in popular discourse. In particular, constitutional rights are codified principles considered central to the values of a given country. Civil and statutory rights (and, to some extent, constitutional rights as well) build on those foundations to enumerate specific legal rights that generate from broad principles.

One accepted way to understand the category of human rights is that it transcends these other types of rights—all cabined by national borders—and describes those rights innate to mankind regardless of nationality. Historically, however, the concept of natural rights, crafted by luminaries such as John Locke, has filled this philosophical niche. Natural rights too are a set of basic rights considered essential to us as human beings; rights which cannot be given to us or taken from us by governments. The Universal Declaration of Human Rights, which is seen as the foundational text of human rights, is often understood as a codification of such natural rights.

Critics of human rights as a category sometimes point to this conflation with natural rights to accuse human rights of redundancy. The obvious counterargument is that human rights took natural rights a step further: the codification of human rights into treaties and other international instruments makes these rights legally enforceable, rather than purely a tool for discourse.

But the project of human rights is about more than codifying natural rights. Recent UN guidance under the Universal Declaration of Human Rights states that all people have the right to internet access. Locke certainly wouldn’t accept that as one of his natural rights.

Defining human rights as legally enforceable natural rights is imperfect for another reason. Human rights are only enforceable once they have been incorporated into countries’ domestic legal systems. In other words, human rights are by nature not enforceable rights until they become constitutional, civil, or statutory rights. If we ground the definition of human rights in their enforceability, then they appear to provide nothing new; natural rights provide a philosophical framework for universal rights that can be translated into domestically enforceable ones. Does this render human rights a superfluous middleman category?

As a participant in the International Human Rights Clinic for the last two years, I do not think human rights are redundant or unhelpful. But I do think that we are not often explicit enough about why that is.

Human rights insert a specific—and worthy—set of values to the world of rights: an aspiration to comprehensiveness. They start with the basic entitlements enshrined in the concept of natural rights, and move beyond that. By not expecting immediate compliance with all rights, international human rights laws need not compromise on which rights to protect to the same extent as domestic legislation. Human rights can be dynamic and responsive to changes in the world—by adopting new rights that deal with the internet, cell phones, and climate change—without demanding that society immediately figure out how to absolutely protect those rights.

The category of human rights provides a blueprint for a better world—with some breathing room.

In other words, in a Venn diagram, human rights intend to fully encompass the other categories of rights (basic, immediately realized rights such as the prohibition on torture)—and then intentionally expand beyond that. They push the conversation. They aim to influence discourse and norms. They encourage debate over whether healthcare in the US is a right, as well as prompting conversations about ways to fully effectuate rights like the ones we had with people in Pakistan and Myanmar.

This difference is embodied in the principle of progressive realization, most notably invoked in the International Covenant on Economic, Social and Cultural Rights. Under progressive realization, a signatory to a treaty is obligated not to protect a right, but to take steps to protect it. The principle explicitly recognizes that some human rights cannot be fulfilled right now. Minimal progress is required, but a country will get an A for effort.

While most treaties do not explicitly recognize this principle, it is implicit in many discussions about some human rights. Why else let Saudi Arabia sign on to the Convention on the Elimination of All Forms of Discrimination Against Women when women in the country can do little without the permission of their male guardians? Or allow Nigeria, which has recently increased its use of torture, and the US for that matter, which has consistently refused recourse to victims of torture at the hands of the US government, to participate in the Convention Against Torture? And surely no country has provided all of its citizens with internet access.

I see these apparent hypocrisies as, at base, driven by a different understanding of what a “right” means in the human rights context. It is not that the member states of the UN do not realize these countries are abusing the human rights they commit to protect in these treaties. It is not that they do not care.

It is that the project of human rights is not merely about creating an enforceable floor for rights. It is about trying to look at what is right in the world, what is working, and saying that, in the future, it would be best for everyone to be able to live like that. Under this understanding, even when a country is failing to fully comply right now, welcoming that country into the project of human rights has value. It is an aspirational move grounded in the belief that the discourse surrounding human rights will move that country towards compliance, just as it has progressed the global conversation during the past century over what humans can and should expect in their future. 

School Segregation and the Elusive Right to Education

by Eian Katz, Class of 2018

One by one, the young members of the Arab-Israeli soccer team I was coaching submitted their surveys. The short questionnaire, administered by an Israeli nonprofit, probed the perceptions of the Muslim, Christian, and Druze minorities toward the Jewish state in which they lived. I studied the results intensely.

“Do you hate the Jews of Israel?” the survey asked.

“Some of them,” answered one player.

“Do you think that the Jews hate the Arabs?” it continued.

“Most of them,” he had circled.

Most revealing of all was the final question: “Do you have any Jewish friends?” I quickly sorted through the responses. All but one had marked, “no.”

It was a predictably dismal referendum on what I had been hoping to accomplish for the past year by working with Arab youths in Israel’s socioeconomic periphery. Yet it was likely naïve to have hoped for anything better. The attitudes captured by the survey are reflective of Israel’s radical racial isolationism, exemplified by its educational architecture—the state operates entirely separate Jewish and Arab public school systems. It is little wonder that cross-cultural friendships are a rarity.

While Israel may be a particularly egregious case, it is hardly unique among the world in its segregated classrooms. In Europe, which has a long history of schools discriminating against the Roma population, a new generation of migrants has been poorly assimilated into or actively excluded from public education. Similar trends have been identified in China, India, South Africa, and Latin America. And in the United States, six decades after Brown v. Board of Education, a number of observers have sounded the alarm on the resegregation of public schools.

Writing in 1954, the Brown court considered the psychological harm of segregation to be “amply supported by modern authority.” The consensus has only grown since then, through exhaustive study of the detrimental impact of racial segregation on educational outcomes and social progress. School segregation is closely linked with racial achievement gaps, though there is debate as to whether the relation is correlative or causative (confounding socioeconomic variables muddy the picture). Segregated schools in the United States are characterized by lower teacher salaries (contributing to higher teacher turnover rates and poorer quality), higher dropout rates, and skinnier budgets (even controlling for socioeconomic variation). Conversely, desegregation is tied to improved lifetime earnings and lower rates of incarceration. Nor has greater integration and diversity been found to hinder the achievement of the dominant race.

In recognition of the severity and global nature of the problem, the Council of Europe’s Commissioner for Human Rights (CHR) published a position paper this year ranking school segregation among “the worst forms of discrimination.” The paper presents “an expanded vision of the right to education” centered on the 4 As: availability, accessibility, acceptability, and adaptability. Drawing on the jurisprudence of the European Court of Human Rights (ECtHR), the CHR announced that, “states have a positive obligation—firmly entrenched in international human rights law—to tackle school segregation.”

The ECtHR’s, for its part, has repeatedly found differentiation in educational access to violate the European Convention on Human Rights’ prohibition on discrimination in interaction with its affirmation of the right to education (in a later protocol). Its foundational case on the subject, popularly dubbed “Europe’s Brown,” involved the disproportionate placement of Roma children in schools catering to special needs students in the Czech Republic. While the Court’s analysis focused on the Convention, it also relied on the authority of the International Convention on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Rights of the Child in ruling for the plaintiffs. In a subsequent case, the ECtHR found similarly that a Greek town ran afoul of its duties under the Convention by deliberately concentrating Roma pupils in one school within the district.

Following the lead of the European Commission against Racism and Intolerance (ECRI) and the US Supreme Court, the formula adopted by the ECtHR holds that “a difference in treatment is discriminatory if it has no objective and reasonable justification.” The CHR report canvassed some of the purported justifications commonly invoked by states. Some involve structural barriers such as linguistic differences, population distribution, and the specific needs of particular communities. Another category is comprised of value-laden expressions of preference for cultural preservation over heterogeneity and for parental choice (and the accompanying “white flight”) over state interference. Lastly, the political disenfranchisement of vulnerable populations inhibits their ability to protect their interests and advocate for reform, illustrated by the persistence of unfair testing procedures and the largely unchecked discretion of administrators in admissions decisions.

In the face of these stubborn obstacles, the CHR lamented that ECtHR decisions “have not necessarily translated into systematic desegregation strategies and the adoption of inclusive education policies.” But there is strong anecdotal evidence that segregation is a problem that can be solved. An analysis of the test scores of first- and second-generation immigrant students from the same country of origin revealed significant variation across host countries, suggesting a connection to “the capacity of school systems in host countries to nurture the talents of students with different cultural backgrounds.” The CHR concluded with a series of policy recommendations aimed at building this capacity, including strengthening anti-discrimination laws, reforming school admissions and selection processes, and regulating school choice.

Ari Shavit, an acclaimed Israeli journalist and author, describes the Israeli-Palestinian conflict as a symptom of “mutual blindness.” It’s a blindness I felt all too acutely over the course of a year working in Jewish- and Arab-only schools and community centers in the country. And it’s a blindness that shrouds the United States (where students have precious little exposure to other races) and other nations, too. In segregated schools, students are taught blindness. Social integration and meaningful fulfillment of the right to education will only be achieved when the veil is finally lifted.