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PRETRIAL CHALLENGES

PRETRIAL CHALLENGES
by Maurice Alexander

My comments on pretrial detention are very much akin to all that have been discussed by the panelist that went before me. For the benefit of summary, I will reiterate our common themes regarding the challenges pertaining to Pretrial Detention. These obstacles are most acute in developing countries. I say developing because they do not impact developed countries to the same degree. These challenges are issues of poverty.  For example, in the United States and Western Europe, systems have well been established to deal with the issues of allowing poor people to be released on their personal recognizance, and that involving speedy trails. Even when pretrial detention issues become widely known, developed countries address them faster.

 Another example is when TB had begun to emerge in many jails and prisons during the late nineties. Within five years or so, the threat of people being released and spreading this decease to the wider community had been eliminated. I believe the same could be said about HIV-AIDS and other commutable deceases. Due to the degree of overall development, these countries are better equipped to resolve a pretrial detention question before it becomes a crisis.

Therefore, our focus is primarily on developing countries. The most common pretrial detention challenges these countries face, particularly in the post colonial countries, are:

  • Making pretrial detention practices consistent with international human rights standards
  • The waste of public, family and individual resource due to severely faulty pretrial detention systems.
  • Loss of confidence in criminal law enforcement
  • Questions involving conviction and punishment before trail (due to long-term pretrail detention)
  • Public health risk via contagious decease subject to be spread to the community at large

In the last analysis, these challenges are issues of poverty; hence the most poverty stricken countries experience the harshest pretrial detention conditions. Moreover, as we improve pretrial detention
conditions on a global scale, we move to eradicate the scourge of poverty, while enhancing poor peoples’ confidence and perceptions of their governmental systems.

I close my presentation with the offer of working with groups interested in establishing links with my office in Washington, D.C.

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HUMAN RIGHTS ARE PRISONERS’ RIGHTS[1]

 Etannibi EO ALEMIKA, PhD *

 Introduction

Human rights are inherent entitlements of all human beings. Prisoners are human beings and therefore entitled to human rights. This simple statement will no doubt sound repulsive to many people. To many it amounts to political and religious heresy to say that prisoners have human rights and worse still to say that the state and society are obliged to respect them. Negative attitudes towards the prisoners are widely and relatively uniformly distributed among diverse groups in the population.

 Significant proportions of the diverse groups in society oppose the recognition and protection of the rights of prisoners, including the abolitions of death penalty. Why is this so? The explanation lies in the misunderstanding of the factors and processes leading to criminalization and criminality. This misunderstanding leads many people to divide the human population into criminal and non-criminal groups. However, this is a gross misrepresentation of reality.

 Who really are the criminals, a segment of which are incarcerated? The reality of life is that all human beings are criminals – at one time or the other involved in actions that violate the criminal law and liable to arrest, conviction and punishment, if such transgressors had been under surveillance, observed and arrested for the violation of law. Human beings are not essentially criminals or non-criminals. They are only differentiated, in terms of the frequency of criminal conduct; the nature, type and severity of crime committed, and differences in ability or capacity or privilege to conceal criminality (due to possession of wealth, power, and status) to evade detection, arrest, trial and conviction when involved in crime. Indeed, in all modern states, certain groups of people, such as top national political actors and foreign diplomats, are granted immunity from criminal surveillance and arrest for criminality. 

 Who are the prisoners? Simply, some individuals who actually violated the law and some accused of violating the law but innocent, yet wrongly convicted and imprisoned? Some individuals accused but still presumed innocent pending trial and judgement but nonetheless subjected to varied deprivations. People in the prisons do not constitute a homogeneous group. It should be realized that most people involved in behaviours or actions that violate criminal laws are never arrested, tried and imprisoned. And that include most of us here today. I do not in any way trivialize the fact that many people commit very injurious violent crimes that leaves their victims with serious trauma. But many perpetrators of such crimes are not arrested and they live among the population as ‘innocent persons’. Yet individuals who are innocent are convicted to avoidable and unavoidable imperfections of the criminal justice agencies and agents.

 Realizing that we all at various or some times engage in conducts which substantively violate the criminal code, we should be less judgmental towards offenders caught by nets of the criminal justice systems, which critics say trap the petty offenders while protecting the big and ruthless criminals in different sectors of society. Instead of being insensitive towards offenders, we need to reflect on the process through which crime and criminal codes are constructed and criminals are produced by both existential conditions and political and economic structures. There is need to understand how criminal laws, crimes and criminals are made in order to adopt constructive rather than destructive policies and programmes in handling offenders, especially those committed to prison custody for punishment.

 The Production Criminal Laws, Crimes and Criminals

Crime and criminal laws are made through a process generally referred to as criminalisation. The terms criminality and criminals can only be understood in the light of the concept of crime. What is crime? There is a general consensus among experts that crime is the violation of criminal laws or codes. This further leads us to another question? What are criminal laws or criminal codes and how are they made? Again, the answer is simple. They are rules made by the rulers to prohibit certain behaviours they consider offensive or harmful to their well-being and sometimes to those of the generality of citizens. Criminalization is a product of the following process:

  1. identification of specific behaviours by the rulers (in and out of formal structures of government) as harmful and therefore should be prohibited;
  2. enactment of laws prohibiting and punishing the behaviours;
  3. establishment of law enforcement agencies to enforce the provisions of the laws,
  4. interpretation and application of the law by relevant prosecution and judicial agencies in respect of the conduct of an individual , and
  5. labelling of an individual as transgressor of law, that is the label criminal is affixed on individuals, with attendant consequences of punishment, including imprisonment and death penalty.

 The criminal laws made by the rulers do not prohibit all harmful or injurious behaviours. Frequently, they exclude social, economic and political actions and behaviours by the rulers that inflict very serious injuries on the citizens and society. Therefore, the content of criminal law is very selective and discriminatory. To a large extent, criminal laws are instruments for the control of the poor and powerless by rich and powerful. The preponderance of the poor and powerless within the criminal justice system in various capacities and with diverse affixed labels like suspects, accused, offenders, convicts and prisoners clearly demonstrate the link between being poor and powerless and being criminalized – that is being labelled criminal, convict and prisoner. Criminalization therefore refers to the making or production of crime and criminals through the criminal law. In the absence of criminal laws and law enforcement agencies, there will be no criminals, though there will always be people who do things that offend or injure their fellow human beings, and are assigned different labels like deviants and sinners but not criminals.

 International Norms on the Human Rights of Prisoners

The primary purpose of law enforcement and judicial agencies is to administer criminal justice. Generally, criminal justice refers to ‘doing justice’, that is giving unto criminals what they deserve. Here lies a fundamental connection among criminal justice, human rights, prisoners’ rights and prison reform. How do we determine what the offender deserves? Can the failure of society to guarantee basic necessities of life or access to vital socio-economic opportunities to some individuals constitute defence or mitigating factors? Should privilege, wealth and power constitute aggravating or mitigating factors in apportioning punishment? Should punishment be apportioned solely based on the harm caused by the behaviour of an individual? Should the behaviour of the victims constitute affect the punishment of offenders? Factoring these puzzles into decisions about what the nature and extent of “justice” that are deserved by an offender can be a very daunting decision, ultimately influenced by experience and subjective factors.  In order to protect suspects, accused persons and offenders from cruel, unusual and degrading treatment and punishments, several normative guidelines on the treatment of offenders have been developed and adopted and expected to be respected and implemented.

 The violation of the human rights of human prisoners through inhuman conditions in prisons and lack of political will to reform or transform prisons into corrective and rehabilitative agencies are borne out of negative perceptions of prisoners and the relative powerlessness of prisoners, professionals and staffs in the prison system. The high prison walls are not only meant to prevent the escape of prisoners. They are also meant to make the inhuman conditions of the prisoners, deprivation of prison staffs and the dehumanising prison environment invisible. The invisibility of the prison conditions shields our consciousness and conscience from the inhuman, degrading and cruel punishments that are meted to fellow citizens in the name of promoting justice and public security through the penal measures of deterrence, retribution and incapacitation. We should not cynically dismiss the observation made by Thrasymachus in Plato’s Republic on the relationship between the characters of laws and rulers in society.

“In every case the laws are made by the ruling party in its own interests; a democracy makes democratic laws; a despot autocratic ones, and so on. By making these laws they define as “just” for their subjects whatever is for their own interests, and they call anyone who breaks them a “wrongdoer” and punish him accordingly”.

 Recognizing that prisons can be designed or used as chambers of torture, inhuman, unusual and degrading treatment, several international norms have been developed to protect the rights of prisoners and other persons in detention facilities of the State. The United Nations Organization has adopted or made several instruments (Charters, Conventions, Declarations, etc) for the protection of prisoners’ rights. Among them are the following crucial ones:

  1. United Nations Declaration of Human Rights (UNDHR): 1948
  2. International Covenant on Civil and Political Rights (ICCPR):
  3. Standard Minimum Rule (1955) outlined the minimum custodial conditions under which prisoners may be remanded or sentenced.
  4. Standard Minimum Rule for the Administration of Juvenile Justice (Beijing Rules): 1985
  5. Rules for the Protection of Children Deprived of their Liberty (1990)
  6. Standard Minimum Rule for Non-Custodial Measures (Tokyo Rules): 1990
  7. Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
  8. Convention Against Torture

  On the Continent of Africa several norms have also been developed at various fora by state and non-state actors. They include:

  1. African Charter on Human and Peoples Rights was adopted by OAU in 1981 and came into force in 1986, October 21.
  2. Kampala Declaration on Prison Conditions in Africa (1996)
  3. Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa. (The Robben Island Guidelines)
  4. Kadoma Declaration on Community Service Orders in Africa 1997; 
  5. Arusha Declaration on Good Prison Practice 1999
  6. Ouagadougou Declaration on Accelerating Prison and Penal Reform in Africa (2002)

The contents of the various normative instruments are either similar or complementary. Essentially, they aim at safeguarding the rights of prisoners. They also contain provisions aimed at promoting the reformation, rehabilitation and reintegration of the prisoners into society. To what extent have these norms influence contemporary penal policies and practices? Available evidence indicates that the norms have been observed more in breach, resulting in a global penal crisis.

 Global Penal Crisis

There is at present a global penal crisis driven by irrational penal policies. The criminal justice systems in many countries are in crisis, which has manifested in several and different ways in many countries. Three brief examples will suffice. In the United States, the punitive agenda that was set in the early 1980s led to mass incarceration that has resulted in nearly five-fold increase in prison population over three decades. Despite the pursuit of the traditional punishment philosophies of retribution, deterrence and incapacitation, American prisons continue to overflow with inmates and high rates of recidivism. At present the American prisons are reproduction of the urban ghettos. The prison crisis in America was precipitate less by increase in crime rate and more by counterproductive penal policy of zero-crime tolerance, determinate sentencing, mandatory custodial sentencing and longer prison sentences for numerous crimes.

 Similarly, though to lesser extent, the United Kingdom is also engulfed in penal crisis with increasing prison overcrowding, huge budget for the prisons and ineffective sentences. The problem in the United Kingdom has been largely precipitated by the incarceration of petty offenders for short-term. According to a recent Report released by the UK National Audit Office, “Over 60,000 adults per year receive custodial sentences of less than 12 months. On any given day they make up around 9 per cent of all prisoners but account for some 65 per cent of all sentenced admissions and releases”[2].  It was estimated that “in 2008-09, the cost of looking after short-sentenced prisoners, not including education and health care, was £286million”.  The Report further noted that:

Short-sentenced prisoners are mostly commonly convicted of theft and violence offences. On average, they have 16 previous convictions, which is more than any other group of offenders. They are also more likely to re-offend: around 60 per cent are convicted at least of one offence in the year after release. Based on the previous work by the Home Office, we estimated that, in 2007-08, re-offending by all recent ex-prisoners cost the economy between £9.5 billion and £13 billion and that as much as three quarters of the cost can be attributed to former short-sentenced prisoners: some £7billion to £10 billion a year[3].

The lesson from this UK Report is that harsh penal policy based on retribution; deterrence and incapacitation are very expensive, ineffective and counterproductive.

The third example is Nigeria. The country’s prisons reflect a paradox. Nigeria’s prisons are overcrowded with awaiting trials inmates. This category of inmates constitutes about two-thirds of the inmate population. This preponderance of awaiting trial inmates thwarts the efforts of the Prisons Service to establish and sustain reformative, rehabilitative and re-integrative programmes for the convicted inmates. The high population of awaiting trial inmates in urban prisons in the country is due to flawed and dysfunctional laws, repressive police arrest and detention practices, especially in respect of minor crimes;  acute lack of skilled police  intelligence and investigation officers; inadequate investigation resources; lack of prosecution resources and inadequate skilled prosecution officers; inadequate magistrates, and inclination towards the detention of suspects pending and during trial by the police, prosecutors, magistrates high court judges in the country.  As in the case of USA and UK, the penal crisis in Nigeria is a product of flawed policies associated with harsh punishments.

 Retribution to Restoration, Rehabilitation and Reintegration

There are several norms from which humane and efficacious criminal justice policies in general and especially penal policies and practices can be derived. Proposals aimed at transiting from retribution and deterrence to restoration, rehabilitation and reintegration are contained in some of the international norms earlier discussed. What is lacking is the political will to adopt humane and efficacious criminal justice policies.

  In concluding this address, permit me to highlight some of the proposals that were developed in the Kampala and Ouagadougou Declarations. The Kampala Declaration noted the following prevalent conditions in Africa prisons: overcrowding; lack of hygiene, insufficient or poor food, difficult access to medical care, a lack of physical activities or education, as well as an inability to maintain family ties. In order to address these problems, it was recommended:

  1. that the human rights of prisoners should be safeguarded at all times and that non-governmental agencies should have a special role in this respect, that is recognised and supported by the authorities,
  2. that prisoners should retain all rights which are not expressly taken away by the fact of their detention,
  3. that prisoners should have living conditions which are compatible with human dignity,
  4. that conditions in which prisoners are held and the prison regulations should not aggravate the suffering already caused by the loss of liberty,
  5. that the detrimental effects of imprisonment should be minimised so that prisoners do not lose their self respect and sense of personal responsibility,
  6. that prisoners should be given the opportunity to maintain and develop links with their families and the outside world, and in particular be allowed access to lawyers and accredited para-legals, doctors and religious visitors,
  7. that prisoners should be given access to education and skills training in order to make it easier for them to reintegrate into society after their release,
  8. that special attention should be paid to vulnerable prisoners and that non-governmental organisations should be supported in their work with these prisoners,
  9. that urgent and concrete measures should be adopted to improve conditions for vulnerable groups in prisons and other places of detention; such as: juveniles, women, mothers and babies, the elderly, terminally ill and very sick, the mentally ill, the disabled, foreign nationals. Procedures that take into account their special needs and adequate treatment during their arrest, trial and detention, must be applied to these groups;
  10. that all the norms of the United Nations and the African Charter on Human and People’s Rights on the treatment of prisoners should be incorporated into national legislation in order to protect the human rights of prisoners,
  11. that the Organisation of African Unity and its member states should take steps to ensure that prisoners are detained in the minimum conditions of security necessary for public safety.“

 As a step towards the realization of humane prisons in Africa that will reduce the rate of imprisonment and unjustifiable incarceration; the Kampala Declaration recommended: 

  1. that petty offences should be dealt with according to customary practice, provided this meets human rights requirements and that those involved so agree,
  2. that whenever possible petty offences should be dealt with by mediation and should be resolved between the parties involved without recourse to the criminal justice system,
  3. that the principle of civil reparation or financial recompense should be applied, taking account of the financial capability of the offender or of his or her parents,
  4. that the work done by the offender should if possible recompense the victim,
  5. that community service and other non-custodial measures should if possible be preferred to imprisonment,
  6. that there should be a study of the feasibility of adapting successful African models of non-custodial measures and applying them in countries where they are not yet being used,
  7. that the public should be educated about the objectives of these alternatives and how they work,

Very few governments in Africa today are conscious of their duty under the Declaration and are taking or have taken steps to comply. African prisons remain degrading and dehumanizing chambers or human warehouses.

 In 2002, The Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa were adopted. The Declaration and Plan of Action focused on diversion of offenders; reducing prison population, providing adequate resources; reintegration of offenders, application of rule of law and respect for human rights; developing, and adoption and implementation of best prison and penal-correctional practices. The Declaration and Plan identified strategies for preventing people from coming into the prison, including:

  1. Use of alternatives to penal prosecution such as diversion in cases of minor offences with particular attention to young offenders and people with mental health or addiction problems.
  1. Recognition of restorative justice approaches to restore harmony within the community as opposed to punishment by the formal justice system – including wider use of family group conferencing, victim offender mediation and sentencing circles.
  2. Use of traditional justice as a way of dealing with crime in line with constitutional guarantees and human rights standards.
  3. Improving referral mechanisms between the formal (State) justice system and the informal (non State) justice system.
  4. Decriminalisation of some offences such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents.

 With specific reference to the reduction of unsentenced prisoners in the prisons, the following strategies were recommended:

  1. Co-operation between the police, the prison services and the courts to ensure trials are speedily processed and reduce the delays of remand detention through: regular meetings of caseload management committees including all criminal justice agents at the district, regional and national levels; making of costs orders against lawyers for unnecessary adjournments; targeting cases of vulnerable groups.
  2. Detention of persons awaiting trial only as a last resort and for the shortest time possible, including: increased use of cautioning; improved access to bail through widening police powers of bail and involving community representatives in the bail process; restricting the time in police custody to 48 hours; setting time limits for people on remand in prison.

Nearly a decade after the Declaration and Plan of Action were adopted, these strategies are yet to be implemented by most African governments. As a result of the failure to implement the foregoing norms and strategies, African prisons systems, indeed the criminal justice systems remain ineffective, repressive and degrading state coercive agencies.

 In December 2005, the Federal Government of Nigeria constituted a Presidential Committee on Prison Reform and Rehabilitation, which I had the privilege of anchoring. The Committee submitted its Report to the President in August 2006 and a Draft White Paper was promptly prepared by a Committee Chaired by a Minister. However, nearly five years later, the draft White Paper has not been considered for approval and implementation by the government, in spite of appeals and reminders. This shows that prison reform, protection of the rights of prisoners as well as the restoration, reformation, rehabilitation and reintegration of prisoners are rarely priorities, if at all concerns, of governments, especially in Africa, where human rights protection mechanisms are weak.

 Conclusion: What next?

In concluding this address, I wish to state my view. The wheel for transforming the crisis-ridden penal systems that prioritizes imposition of harsh punishment aimed at achieving deterrence,  retribution and social defence through incarceration or incapacitation into no less efficacious and but undoubtedly more humane penal correctional  systems driven by the goals of restoration, reformation, rehabilitation and reintegration has been invented. However, the wheel has not been put to work by many governments across the globe. Consequently, their criminal justice systems are in crisis.

The way out of the crisis is not to reinvent the wheel. What we need is not further multiplication of norms but rather to develop strategies and capacities for mobilising the governments to establish the necessary framework for turning the wheel and to provide or yield a space for partnership between state criminal justice agencies and civil society organisations to do this effectively. Networks of civil society organisations engaging in advocacy with relevant international, continental and regional organisations and national governments seem to me a very probable way of advancing the implementation of the laudable norms of criminal justice administration and humane governance of prisons and correctional systems that have been developed. Let us join hands to turn and make the wheel of justice work for the realization of human rights as prisoners’ rights.   

 


B.Sc. Sociology (Ibadan), Ph.D. Criminology (Penn.); Professor of Criminology and Sociology of Law, Department of Sociology, Faculty of Social Sciences, University of Jos, Jos, Nigeria [E-Mail: alemikae@yahoo.com]

[1]Keynote Address Presented at The 5th International CURE (Citizens United for the Rehabilitation of Errants) World Conference on Human Rights,, Criminal Justice and Prison Reforms on the theme From Retribution to Restoration, Rehabilitation and Reintegration held at Shehu Musa Yar’adua Centre, Abuja, February 21-24, 2011.

[2] National Audit Office 2010 Managing offenders on short custodial sentences. London: The Stationery Office, p4

[3]Ibid.

 

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POLICE LOCKUPS

 

Standards for Monitoring Human Rights of People
 in Police Lockups:

Potential Roles of Community-Based Organizations

Charles Hounmenou, Ph.D., Visiting Research Specialist

Center for Social Policy and Research, Jane Addams College of Social Work, University of Illinois at Chicago


Despite the fact that every year a large number of persons are detained in police cells, little is known about who is detained in them, for what reasons, the circumstances they are held in and the conditions they experience. There are no statistics published on a regular basis. Nor are police cells subject to regular external scrutiny or annual reporting. There are no official visitors of police cells as there are in the prison system. Mostly invisible to the public eye, it is generally only when a death occurs in police custody and through coronial findings that police cells come to the public’s attention
(Office of Police Integrity, 2006, p. 16).i

Introduction

In opposition to prisons, conditions and treatment of detainees in police lockups do not appear to be of great interest to the research community. Civilian review agencies have been involved in the oversight of the police misconduct, with their interventions focusing mainly on citizen complaints. Most reports of visits and inspections of police lockups, and citizen complaints relate to the violation of the basic human rights of persons in police custody. The purpose of this paper is to review the literature on human rights standards in police lockups, and explore the role community-based organizations can play in monitoring detainees’ human rights in police lockups. The paper focuses on three points: first, it reviews some major cases of violation of the basic human rights of persons in police lockups in the U.S.A., second, it summarizes standards for monitoring human rights of persons in police lockups in the U.S.A. as well as other countries, and finally, the potential role community-based organizations could play in the monitoring of human rights of persons in police lockups is discussed.

Brutality in Police Custody

A police lockup is neither a jail nor a prison. It is a short-term holding facility within a police station that is used to provide secure, temporary holding cells for suspects waiting for interrogation, arrest processing, transfer to jail or for other administrative procedures. Despite the establishment of standards and policies about how to humanely treat persons in police custody, police officers view fair treatment of detainees to be inappropriate and undeserved. Police officers sometimes perceive a police lockup as a place for retribution instead of a pre-trial, safe space for suspects. Some police officers do not appear to worry about consequences of abusing persons in lockups probably because of the lack of effective oversight mechanisms of their misconducts. Research on inspections and visits to police lockups in various countries has shown all sorts of excesses, ill-treatment and abuses including deaths in policy holding cells. Substandard detention conditions of persons in police lockups described in literature include the following: overcrowding and long stays for persons in police cells; torture and beating of detainees; inadequacy of holding cells due to their location and size; insufficient attention to custodial standards; inadequacy or absence of provision of basic services such as health care; detainees in police cells found to be at risk of self harm; lack of access to basic amenities in police cells; inadequacy of hygiene facilities; lack of separated cells for juveniles or other vulnerable detainees; and inadequacy or lack of internal monitoring system to ensure the safety of persons in police lockups.

It is often only after news about atrocious conditions in police cells, or about high profile cases of abuse or death of persons in police custody, has reached the media that public outrage is raised. While some police brutality occurs during arrests, most of these events happen when suspects are already in police custody. According to Amnesty International (1996), there had been many disturbing cases of police abuse cases in which suspects died in police custody in the New York Police Department (NYPD). A 2004 NYPD report found that 55 people had died in police custody between January 1990 and the end of April 1999, a number found to be surprisingly conservative. There was the famous case of August 1997 when a Haitian immigrant man named Abner Louima was erroneously taken into police custody in Brooklyn for a crime he did not commit, and underwent torture.

Chicago is another city whose police department has been identified by Amnesty International for frequent police misconducts, especially recurrent practices of torture of suspects, and deaths in police lockups. Between January 1990 and September 1998, 177 Blacks and 80 whites died in police custody or jail in Cook County (Gordon, 2007). Some detainees committed suicide in the lockups of Chicago city and suburban police stations. In 1990, officers from the Area 2 police station in Chicago systematically tortured over 200 African American suspects between 1972 and 1984 (Amnesty International, 1990). In June 2005, an overall 135 racially-motivated cases of torture and abuse of African American men and women at the hands of former Chicago Police Commander Jon Burge and officers under his command in Area 2 police district were documented. Abuses include: suspects were beaten and kicked, had a plastic bag placed over their head causing near suffocation, threatened with mock execution by having a gun placed in their mouth, and subjected to electric shock torture.

There had existed an unwritten policy to systematically torture suspects in police custody within the City of Chicago’s Police Department. In 1999, Dr. Robert Kirschner, an international expert on torture, equated tortures of suspects in Area 2 Chicago police district torture to the pattern and practice found in other countries where official torture was practiced by the military and by police. The Chicago Police Department’s policy of locking up and interrogating for days individuals who are not charged or suspected of any criminal wrongdoing brought other lawsuits against the department, including two in 2003 and 2005. For Human Rights Watch (1998), most incidents of police abuse and brutality in the United States are encouraged by flawed internal investigations, rare criminal prosecutions of police officers by local and federal prosecutors, little reason for brutal officers to fear punishment, and most importantly a lack of external oversight mechanisms to monitor the detention conditions of persons in police lockups.

Monitoring Detention Conditions in Police Lockups

The monitoring of detention conditions in police lockups is important because first, persons in police custody are mostly pre-charge suspects. Second, having temporarily lost their freedom, detainees have limited recourse to any remedy or assistance. Third, as human beings, detainees’ basic human rights have to be upheld and protected. Fourth, police view themselves less in the role of custodians than in that of law enforcers. Considering that many police appear reluctant to perform their custodian role, one could understand difficulties or scruples they have to humanely treat suspects in their custody, and consequently the potential abuses detainees can experience in a police lockup. The question would be to know who should monitor police lockups to see if their human rights are respected.

The United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment of 1988 states that “Places of detention shall be visited regularly by qualified and experienced persons appointed by and responsible to a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment.” Yet, in contrast to prison systems, there is a lack of inspection programs of police lockups in many countries. Most countries’ laws uphold certain rights available to detainees in a police lockup. Police stations develop and implement written standards and procedures for the operation of a lockup facility. Lockup standards are specifications or benchmarks for lockup operations and facilities.

Though police lockup standards may vary from one state to another, from one police department to another, they are often grounded on international human rights standards stipulated in various documents including the Universal Declaration of Human Rights of 1948, the United Nations Standard Minimum Rules for the Treatment of Prisoners of 1955, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of 1984, and the United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment of 1988. Three important convergent points are upheld in the policy and standards of most police worldwide regarding an adequate treatment of detainees: a) police departments shall operate a safe and sanitary lockup facility in compliance with state and local codes and regulations; b) they shall care for detainees, being attentive to their security and medical needs; and c) they shall provide special care for juveniles, and persons with special needs.

Synopsis of Standards for Monitoring Human rights in Police Lockups

A literature review of standards iii set out in the United Nations conventions and protocols regarding treatment of detainees, the Prison Rape Elimination Act of 2003 (PREA), and procedures of treatment of detainees in police lockups in various countries (e.g., the U.S.A., the United Kingdom, the European Union, Australia, and some African countries) shows that the following eight areas of standards could be considered for monitoring human rights of people in police lockups: 1) detainee safety; 2) detainee accommodation; 3) detainee medical/mental health; 4) food; 5) detainee psychological well-being; 6) detainee discipline and restraint; 7) treatment of detainees with specific needs; and 8 )  awareness of lockup facility staff about detainees’ human rights.

  • Detainee safety. a) Police shall take steps to ensure detainees’ safety and wellbeing; b) officers shall be held strictly responsible for the safe custody of the detainees under their care and this responsibility is theirs at all times.
  • Detainee accommodation. a) All accommodation provided for the use of detainees shall meet all requirements of health; b) the physical conditions of the holding cells and the lockup facility shall provide for the humane treatment of detainees; and c) detainees are provided with an appropriate standard of accommodation that ensures the respect of their human rights, and balances individual rights with the rights of others.
  • Detainee medical/mental health. a) Detainees shall be held in a clean environment that enables them to maintain self respect and provides for their physical and mental health, and well-being.
  • Food. Detainees shall be provided with quality food that takes into account individual religious or dietary needs, is of good nutritional value, and is well prepared and presented.
  • Detainee psychological well-being. a) All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person; b) persons in detention shall be subject to treatment appropriate to their unconvicted status; c) they shall not be discriminated against and are provided equal protection under the law; and d) they must be protected from torture and cruel, inhuman treatment. 
  • Detainee discipline and restraint. a) Detainees are protected from degrading treatment or punishment; b) the degree of force used should be the minimum required to control or manage detainees’ behavior; c) force should be used as a means of control, and not as a method of punishment;
  • Treatment of detainees with specific needs. Particular efforts shall be made to protect the rights of children and young people in a police lockup; and c) detainees with special needs must be provided with appropriate services and assistance.
  • Awareness of police lockup facility staff about detainees’ rights. Police officers responsible for a lockup facility must be trained about its operations, its policies, and the human rights of detainees.

 Upholding human rights standards for detainees in police lockups is one thing, but having these standards applied is another big issue that calls for an independent monitoring system.


Potential Monitoring Role of Community-Based Organizations

Advocates for an independent oversight of the police argue that oversight of police misconduct should be led either entirely or partially by an external, civilian review body to which important power is given over the conduct of investigations involving citizen complaints against the police. Yet, most studies show low performance and limited effectiveness of citizen (or civilian) review agencies of police misconduct. Livingston, in her (2008) article titled The Unfulfilled promise of citizen review,iv decried a major problem with civilian oversight systems: their retrospective focus on investigation of complaints to address issues of police misconduct. After-fact reviews of complaints could hardly impact or prevent police misconduct. The retrospective review of complaints may not be as effective as a preventive, before-the-fact strategy of monitoring and analysis of the police’s patterns of misbehavior that aim to identify, prevent or limit issues of misconduct before their occurrence. Important as civilian oversight agencies may be, they are reactive to situations of police misconduct, because they focus primarily on receiving and responding to complaints from citizens. It is necessary for civilian oversight systems to move beyond their reactive examination of police misconduct, and take on a proactive, preventive responsibility by identifying and resolving systemic problems or aspects of law enforcement that cause or perpetuate misconduct.

An area in which a citizen oversight body may have a crucial role to play would be the monitoring of police lockups. Here, monitoring implies periodic inspections of police lockups, interviews of detainees and detention staff, and reports based on the lockup policies and procedures as well as human rights standards. Thus, instead of expecting people who have been abused in police lockups to come forward, in case they survive or do not commit suicide or die under torture, to complain about their bad treatment in custody, civilian oversight systems should be proactive by investigating whether the police lockup standards are followed, or whether detainees’ basic human rights are respected and upheld. It should be possible for an officially appointed oversight agency to require and conduct regular inspections of police lockups. Thus, monitoring police lockup conditions could help prevent or lessen bad treatment detainees experience inside police holding cells.

There is a need to bring in community-level organizations that have substantial experience in advocating for the respect of human rights in prisons, jails and police lockups. First, it will be difficult to politically influence such groups. Second, community-level advocacy organizations appear to be closer to citizens than the appointed civilian review agencies whose authority and resources mainly depend on the political leadership that establishes them. Third, resources may not be a major challenge for community-based groups to be involved in monitoring conditions in police lockups. Community-based groups may also get substantial financial support for their activities from the community because citizens, community partners, and other stakeholders may view them as closer to them, and more independent to oversee and report about issues of bad treatment of persons in police cells.

The John Howard Association (JHA) is a good example of such a citizen-based organization. Court-mandated to monitor jail conditions in Cook County (Illinois), the JHA maintains a program of prison and jail visits, bringing over a thousand volunteers into jails, prisons, and juvenile facilities throughout the Illinois State. For Young (2006)v, the role of the citizen observer in monitoring jails and prisons is very important for four reasons. First, it would be impossible to find enough resources to compensate thousands of people who volunteer for the observation and conversation with inmates. Second, each citizen who visits a detention center or jail becomes a valued public witness of what very few citizens see. Third, these volunteers could help assure that detention centers follow acceptable, contemporary standards. Finally, they could also be a voice among the general public to depict their awareness of life in detention.

While some community-level organizations or associations are recognized and sometimes legally allowed to conduct visiting or, to some extent, monitoring of jails and prisons in the U.S, there are almost no such groups to monitor police lockups, and make recommendations for improving conditions of detention. Thus, there is a need of citizen-based agencies or associations to be involved in visiting police lockups at a level similar to the one reached by the JHA in monitoring jail conditions in Illinois. A community-based organization can play an important role in addressing the issue of lack of monitoring of police lockups. Visits and reports made by an independent, community-based organization about conditions in police lockups could help officially appointed civilian agencies to have a better understanding of the background of a great part of citizen complaints. A grassroots organization could rely on the availability of volunteers to conducts lockup visits. It will be costly to have enough staff in a civilian oversight agency to conduct regular and extensive visits of police lockups. Thus, volunteers have a central role to play in a monitoring of police lockups. Political pressure may not affect a community-based, nongovernmental organization in monitoring police lockups as such an organization will probably rely on private resources coming from fund-raising to conduct its work. The organization’s visits to police lockups, and if possible, interviews with persons in detention, could be a deterrent, and enhance visibility and improvement of conditions of detainees. The paramount role a community-level organization will have to play is to oversee whether established police lockup standards are upheld and followed, and consequently whether the human rights of detainees are respected.

Two ways for such a group to be effective in a role of monitoring police lockups could be: first, to submit the findings, and making recommendations to not only the police chief, but also to the civilian oversight structure officially appointed; second, to disseminate periodical reports on its findings regarding detention conditions. Yet, the police will probably be very reluctant to cooperate with, and let a community-based organization monitor its lockups. For a community-based organization that aims to take on the responsibility of visiting police lockups for the sake of respect of international human rights standards, there are some basic characteristics it should have. First, this organization should have a successful track record of involvement in advocacy work for detainees’ rights. Second, its leadership must be known for its professional integrity. Third, the organization should be able to raise adequate managerial funds for its projects of monitoring police lockups. Fourth, support from the political leadership of the jurisdiction where it plans to implement programs of monitoring police lockups will be crucial. Beyond that, a support from the judiciary power will give it lots of credibility and authority to the work to achieve. Among the community-level organizations that may be able to play a substantial role in monitoring police lockups in the U.S.A. are the American Civil Liberty Union (ACLU), and the Chicago-based Citizens Alert.

 i Victoria Office of Police Integrity (2006, July). Conditions for persons in custody. Report of Ombudsman Victoria and Office of Police integrity. Australia: Melbourne.http://www.opi.vic.gov.au/index.php?i=22

ii See United Nations Organizations (1988). Body of principles for the protection of all persons under any form of detention or imprisonment, principle 29. http://www.un.org/documents/ga/res/35/a35r178e.pdf

iii See Hounmenou, C. (2010). Standards for Monitoring Human Rights of People in Police Lockups. http://www.uic.edu/jaddams/college/research_public_service/files/StandardsforMonitoringHumanRightsforPeople_2.pdf

iv Livingston, D. (2004). The Unfulfilled promise of citizen review. Ohio State Journal of Criminal Law, (1), 653.

v Young, M. (2006, February). The Promise and challenge of citizen oversight and visits to prison. John Howard Association of Illinois. Paper Submitted to the Commission on Safety and Abuse in America’s Prisons Hearings on Oversight, Accountability and Other Issues. California: Los Angeles. http://www.prisoncommission.org/statements/young_malcom.pdf

Citizens Alert, Chicago’s major police accountability organization, has been working for humane, effective law enforcement, and advocating for persons victims of police brutality and misconduct for over 44 years. This organization aims to monitor police conduct and policies to assure greater accountability to the public, and to build coalitions to involve other organizations in efforts to making the Chicago Police accountable for its conducts. A grassroots organization such as Citizens Alert appears to have the necessary background and assets to fill the gap in the work of the civilian oversight bodies limited in their retrospective review of citizen complaints about police misconduct.

It will be unprecedented to have a community-based organization be involved in such a sensitive area of monitoring conditions of detention in police lockups. Some people might think that bringing in a community-based organization for visiting and reporting about police lockups would be a threat to the appointed civilian review agencies. Others might think that such an organization would be a redundant, external oversight body as regards reviewing police misconduct. Yet, having an oversight organization emerging from the community may have many positive impacts on the welfare of persons in police custody. So, regular visits of lockups by lots of volunteers would probably put some pressure on police officers responsible for the facility management to respect detainees’ constitutional and human rights. Having a community-based organization visit and report about conditions of detention in police facilities would be an important initiative to uphold detainees’ human rights in police lockups.

However, the three major obstacles to such a commendable project will be the police itself, the political power, and an established civilian review agency. The political authority has a central role in having both the police and the civilian review agency accept the establishment of a citizen group to observe, report on the appropriate treatment of suspects, and make recommendations for the uphold of lockup standards and respect of human rights in police custody. By allowing a community-based organization in the role of monitoring police lockups, the police will be viewed in the community as transparent and accessible. The civilian review agency will probably receive less citizen complaints about conditions in police custody. Most importantly, it will learn about trends of officers’ behavior in a police lockup that lead to some patterns of complaints.

Conclusion

The existence of standards for monitoring human rights of persons in police lockups is not enough to prevent police abuse of persons in custody. With the demanding aspect of such work, bringing in community-based organizations will be of great importance. Volunteer organizations appear more independent to conduct objective visits and reports about conditions in police lockups. Their capacity of recruiting people for visits and observations of police lockups cannot be matched by any official structure. Their independence from public resources and from political authority is a great asset that can make them a relevant partner of both the police and the civilian review agencies in the ultimate and common responsibility of increasing the community trust in the police’s treatment of people in custody.

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PRE TRIAL DETENTION

To view the power point presentation by Martin Schoenteich, click: PRE TRIAL DETENTION

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SULLIVAN CLOSING

CLOSING COMMENTS
by Charlie Sullivan

In closing, I’d like to offer a few comments.

This conference has been a wonderful experience for us all. We have shared our knowledge, passion, and hopes. We have charted our course anew. But our work stretches into the future; there is much work to be done. 

Transformation of justice and prison systems from primarily retribution to primarily restoration, rehabilitation, and reintegration is our continuing mission. It seems that all of our 48 “Ways-Forward” and our 5-year goals, and our three priority items of Stopping AIDS, Speedy Trials, and alternatives to incarceration, all need our full attention and creativity. But, in all this, I suggest that two items always surface predominately: the needs for education / job training and health-care.

First, we know that employment in decent work is key to survival, support of family, self confidence, and social responsibility. It’s the foundation on which so much depends. We know that prisons and the slums of our cities are where we find the greatest concentrations of needs, for persons with the least education and the least job training. We all can focus on this need and treat it as a great opportunity.

Second, we know that people can be helpless when faced with disease, like AIDS, tuberculosis, hepatitis, and malaria. These stop all progress. Again, we find terrible concentrations and exposures in prisons and slums. So I ask for your dedication to work in this area, too.

In all our work, we need to stand together. The internet email, the International CURE website, our quarterly newsletter, and booklets like the “Ways-Forward” booklet  are tools we can use. But your active participation is crucial. Take the initiative in using these and other ways.

Have a safe trip home, and keep in touch.

 And Betty inspires you with her poetry:

Prisons As Institutions of Healing

As a society, we mete out punishment with zeal-

We fingerpoint with zest

but we don’t know how to heal.

For diseases of the flesh we train skillful hands

send them to many lands to bind up wounds.

Hospitals would be incongruous

if what they did was dole out deeper hurts.

The broken, wounded, warped vicious, addicted

end up in prisons needing plenteous mercy

mercy like to God’s.

Why can’t we make our prisons into schools

and teach love there?

Let prison’s purpose be to heal rather than to punish.

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DIALOGUE EN FRANÇAIS.

Ce post est de donner à tous les participants de langue française à la Conférence CURE une occasion de dialogue avec d’autres (par les commentaires sur ce post) dans cette langue.

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