Mentally Ill Prisoners: The United States and its Violation of ICCPR Article 10(1)

Mentally Ill Prisoners: The United States and its Violation of ICCPR Article 10(1)

Susie Dent

U.S. Foreign Relations Seminar Final Paper&

Supervised Analytical Writing RequirementJanuary 15, 2013

Introduction

The United States comprises less than five percent of the world's population—but

with an incarcerated population of 2.2 million, it hosts almost a quarter of the world's

prisoners.1 Of this entire prison population, thirty-two percent are mentally ill adults

incarcerated in state and federal prisons and local jails.2 This large faction can be linked

to a decades-long trend away from rehabilitative punitive strategies, as well as the

deinstitutionalization of mental health facilities in the mid twentieth century3. As a result,

state and federal prisons have, by default, become the only treatment center available for

inmates with mental health issues. This vulnerable population cannot effectively respond

or comprehend traditional punitive tactics, like isolation and verbal discipline, and

require comprehensive psychological and medicinal treatment. Underfunded and

overpopulated, the United States correctional systems are not providing this level of care,

to the detriment of such a fragile population. For a mentally ill individual, this

inadequate treatment amounts to more than just disproportionate punishment—it denies

him the international right to be treated with humanity and with respect for the inherent

dignity of his human person.4

1 Adam Liptak, “U.S. prison population dwarfs that of other nations”, America Section, NEW

YORK TIMES, 23 April 2008. Available at: http://goo.gl/dUVzs .(author note: links within this

paper have been shortened via an online link tool, for brevity purposes.)2 Lauren E. Glaze, Doris J. James, “Mental Health Problems of Prison and Jail Inmates,”

September 6, 2006, BUREAU OF JUSTICE STATISTICS, available at: http://goo.gl/CtC5T. 3 Bernard E. Harcourt, Reducing Mass Incarceration: Lessons from the Deinstitutionalization of

Mental Hospitals in the 1960s, (January 26, 2011). U of Chicago Law & Economics, Olin

Working Paper No. 542; U of Chicago, Public Law Working Paper No. 335.4 International Covenant on Civil and Political Rights, Article 10(1), adopted Dec. 16, 1966,

U.N.T.S. 171 (entered into force Mar. 23, 1976) (hereinafter “ICCPR”)

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This right of the incarcerated to humane treatment arises from the International

Covenant on Civil and Political Rights (ICCPR)5, a multilateral treaty adopted by the

United Nations General Assembly in 1966, and ratified by the United States in 1992. The

treaty recognizes and requires the protection of a number of fundamental rights, including

those to physical integrity6, security of person,7 freedoms of opinion and expression8, and

liberty9.

The ICCPR protects both free and incarcerated individuals, asserting that those

deprived of their liberty “shall be treated with humanity and with respect for the inherent

dignity of the human person.”10 Article 10 of the ICCPR applies to "anyone deprived of

liberty under the laws and authority of the State who is held in prisons, hospitals –

particularly psychiatric hospitals – detention camps or correctional institutions or

elsewhere."11 As the United States is a signatory to this treaty, it imposes a positive

obligation on the US towards persons who are particularly vulnerable because of their

status as persons deprived of liberty—especially those with mental illness.

This paper will demonstrate that under current prison conditions, the United

States’s treatment of the incarcerated mentally ill amounts to a violation of obligations

under Article 10(1) of the ICCPR, which is binding as a matter of international law. Part I

will address the origin of the Covenant and the United States subsequent ratification,

5 Id.6 Id. at arts. 6-8.7 Id. at 9.8 Id. at 40.9 ICCPR at arts. 10, 1110 Article 10(1).11 Human Rights Committee, General Comment No.21 (replaces General Comment 9) on humane

treatment of persons deprived of liberty (1992) at [2].

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containing specific limiting reservations, understandings and declarations12. Part IIA will

address why Article 10(1) of the Covenant is binding upon the United States, expounding

upon its definition and obligations, as well its scope, explaining how both “soft law”

instruments and interrelated treaty case law provide a more comprehensive understanding

of Article 10(1)’s “object and purpose.”13 Part IIB will cite specific examples of

international case law from the European Court of Human Rights, factually similar to

domestic cases involving mentally ill prisoner treatment, in which the equivalent of

Article 10(1) violations have been found14. Part III will discuss three specific, recent

domestic cases15 where the United States is arguably in violation of its treaty obligations

under ICCPR’s Article 10(1)16.

Part I: Origins and US Ratification of the ICCPR

In an effort to construct an “international bill of rights”17 after World War II, the

Covenant was drafted by the Commission on Human Rights and entered into force in

12 Discussed infra pp. 513 Discussed infra pp. 814 Discussed infra pp. 22

15 Each of these cases arises from a different prison, all in different states, within the last five

years.16 Discussed infra pp. 28.17 Egon Schwelb, Entry into Force of the International Covenants on the Human Rights and the

Optional Protocol to the International Covenant on Civil and Political Rights, 70 AM. J. OF INT’L

L. 511 (1976).

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1976. The Covenant created a “hard law”18 version of many of the principles embodied in

the Universal Declaration of Human Rights: self determination, life, privacy, due process,

thought and religion, and the right to be free from torture and inhumane treatment,

whether free or incarcerated.19 As understood by US lawmakers, the purpose of the treaty

is to “guarantee a broad spectrum of civil and political rights, rooted in basic democratic

values and freedoms, to all individuals within the territory or jurisdiction of the States

Party without distinction of any kind, such as race, gender, or ethnicity.” 20

While the primary enforcement mechanism for the Covenant is done by the State

(enforcing the treaty rights in its domestic courts),21 there are several monitoring

mechanisms in place to ensure compliance, overseen by the Human Rights Committee

(“HRC”).22 These mechanisms include reporting requirements23, interstate complaint

systems24, and Optional Protocols allowing for submission of individual complaints

against a signatory state to the UN.25 To accomplish this supervision, the HRC appoints

eighteen experts, who meet three times per year, examine each participating country’s

report and addresses its concerns and recommendations to the country via concluding

observations. The HRC also has the authority to issue General Comments on the

18 To be discussed infra pp. 21.19 See Articles 1,6,17,14,18, and 10, respectively.20 S.EXEC.REPT.NO.102-23 at 1 (1992).21 See art.2(3).22 Christopher Harland, The Status of the International Covenant on Civil and Political Rights in

the Domestic Law of States Parties: An Initial Global Survey Through UN Human Rights

Committee Documents, 22 HUM. RTS. Q. 187, 188 (2000).23 ICCPR art. 40; this intra-state complaint system has never been used.24 ICCPR art. 40(1)25 Optional Protocol to the International Covenant on Civil and Political Right art.1, adopted Dec.

16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).

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provisions of the Covenant.26 These Comments often provide insight as to how the

Articles should be interpreted and applied.

President Carter submitted the Covenant to the Senate in 1977, but the Senate did

not approve treaty ratification until 1992. This ratification was subject to five

reservations, five understandings, four declarations, and one proviso.27 Specifically, The

U.S. made reservations to the ICCPR’s provisions on prohibition of war propaganda28,

capital punishment,29 cruel, inhuman or degrading treatment,30 criminal penalties,31 and

juveniles.32 Further, it drafted understandings concerning the provisions on equal

protection,33 compensation for illegal arrests,34 separate treatment of the accused from the

26 ICCPR art. 40(4)27 Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights:

Credibility Maximization and Global Influence, NORTHWESTERN J. INT’L RTS Volume 3 (Spring

2005) ¶3.28 Senate Comm. on Foreign Relations, Report on the International Covenant on Civil and

Political Rights, S. EXEC. REP. NO. 23, 7 (102d Sess. 1992), reprinted in 31 I.L.M . 645 (1992).

(making a reservation to the prohibition of “propaganda for war and advocacy of national, racial,

or religious hatred that constitutes incitement to discrimination, hostility, or violence” in art. 20 of

the ICCPR).29 Id. (making a reservation to the limitation concerning the “circumstances in which capital

punishment is imposed “ in article 6 of the ICCPR).30 Id. at 8. (limiting the definition of “cruel, inhuman, or degrading treatment or punishment” in

article 7 of the ICCPR).31 Id. (Article 15 reservation)32 Id. (Article 10 reservation)33 Senate Committee Report, supra note 29, at 9. (understanding that legal distinctions made in

U.S. law are not inconsistent with article 26 or article 2).34 Id. at 16. (understanding that the right to seek compensation satisfies the provision’s right to

compensation in article 9(b) and article 14(6)).

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convicted35 and right to counsel,36 and the extension of the provisions in the treaty to

federal states.37 Finally, it drafted declarations with regard to the treaty being non-self

executing,38 the rights that may be taken away during emergencies,39 the Human Rights

Committee,40 and the savings clause on natural wealth and resources.41 With these

controversial RUD’s in place42, the United States has so far submitted four reports to the

HRC.43 Despite the United States’ current domestic statutory and constitutional

protections in place for mentally ill prisoners, under ICCPR’s Article 10(1), current

conditions still fall short of what is required by treaty obligations. In order to determine

what exactly is required under Article 10(1), it is first necessary to determine its scope

and meaning.

Part IIA: The Meaning and Scope of Article 10(1)

35 Id. at 17. (understanding that consideration of the person’s dangerousness and allows the

accused to waive his right is allowed under the“ exceptional circumstances” in article 10.)36 Id. at 18. (understanding that the right to counsel only attaches in criminal cases and does not

afford the defendant the right to choose his counsel.)37 Id. at 19. (understanding that given the federal system of government, the federal government

will implement the treaty to the extent that it is able and remove any impediments to states to

fulfill their obligations under the treaty.)38 Id. at 20.39 Senate Committee Report, supra note 29, at 20.40 Id. at 21.41 Id. at 22.42 Countries objected to the U.S. reservation because it allegedly went against the

object and purpose of the treaty and nine of the eleven countries also objected to the third U.S.

reservation regarding article 7 of the ICCPR. See Ash, supra note 28, at ¶20-21

43 On December 30, 2011 the U.S. submitted its 4th periodic report. The previous two reports

were submitted jointly by the Bush administration in October 2005. The first report was

submitted in 1994 under the Clinton administration.

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The language of Article 10(1) states, “all persons deprived of their liberty shall be

treated with humanity and with respect for the inherent dignity of the human person.”44

This article is read to compliment Article 9, which requires anyone who is deprived of

liberty to be treated with proper procedure, and only for just cause.45 To a greater extent,

Article 10 compliments Article 7, which protects against cruel, inhuman and degrading

treatment and punishment.46 The Covenant is drafted in broad, often vague language,

which requires interpretation as (1) to whom this protection applies and (2) what type of

conduct is considered inhumane or disrespectful of human dignity (scope). Interpretations

of these two important aspects is often conducted by the Human Rights Committee—but

the validity of these interpretations is at issue between two competing ideological schools

within international law.

The Human Rights Committee & Its Interpretive Role under the ICCPR

The Covenant establishes the Human Rights Committee (HRC) in Articles 28-

45,47 as the “body of independent experts that monitors implementation by its State

parties”48. The HRC performs its function of supervising and monitoring the

implementation of the ICCPR in four ways: reporting, considering individual

44 ICCPR, article 10(1) 45 ICCPR, article 9(1)-(5).46 ICCPR, article 7. (“No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment. In particular, no one shall be subjected without his free consent to

medical or scientific experimentation.”)47 ICCPR, Part IV.48 Human Rights Committee, “Monitoring Civil and Political Rights,” Office of the United

Nations High Commission of Human Rights, available at

http://www2.ohchr.org/english/bodies/hrc/.

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communications, issuing general comments, and reviewing inter-state complaints.49 The

Committee is designed to evaluate a State’s “measures they have adopted which give

effect to the rights recognized herein and on the progress made in the enjoyment of those

rights”50 by “studying”51 the reports, and then “transmit[ting] its reports, and such general

comments as it may consider appropriate, to the States Parties.”52 This process entails a

dialogue with representatives of the State, where the Committee seeks further

clarifications and explanations from the State before issuing their “concluding

observations”.53 These concluding observations are divided into three parts: introduction;

positive developments; and subjects of concern and recommendations.54 After receiving

this evaluation of their current adherence to the ICCPR principles, States are able to

identify which type of conduct must be revised in order to comply with their treaty

obligations.55 Such information thus allows the State to more comprehensively

understand the scope of obligations under the Covenant.

Positivism v. Natural Law Perspectives of the HRC

Within international law, there are two competing schools of thought: positivists

and naturalists. These two theories contradict each other as to what constitutes a valid

source of international law. While positivists regard the actual behavior of states as the

basis of law, naturalists believe that law is more like a set of truths steeped in universal

49 See ICCPR, Arts. 28-45.50 ICCPR, Art. 40, ¶1.51 Id. at ¶4.52 Id. 53 See generally Art. 4054 Id. 55 Id.

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themes such as morality and justice.56 Positivists focus on how and when specific laws

came to be enacted, how they are or are not consistent with one another, and how they

function with one another, whereas naturalists think of laws in terms of their broader

purposes, as part of a much larger moral and social system.57

As previously mentioned, the HRC was created to “monitor the implementation of

the Covenant.”58 When drafting General Comments, Concluding Observations to State

Party Reports, and Final Views on Individual Communications under the Optional

Protocol, the HRC often must interpret vague terms from within the Covenants Articles.59

While natural law proponents consider the HRC to be the “pre-eminent interpreter of the

ICCPR,”60 proponents of legal positivism argue the Committee lacks the authority to

produce binding decisions. The United States often adheres to this latter opinion.61 While

the Committee has never been given the power to issue authority binding on States, their

56 See Hedley Bull, Natural Law and International Relations, BRITISH JOURNAL OF

INTERNATIONAL STUDIES, Vol. 5, No. 2 (Jul., 1979), 171-181.57 See Generally Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial

Comparison, LEGAL THEORY, vol. 4, no. 3 (September 1998), 249-282; H.L.A. Hart, Positivism

and the Separation of Law and Morals, 71 HARVARD LAW REVIEW 593 (1958)58 ICCPR, Art. 28.59 See Charles E. Stewart v. Canada, Communication No. 538/1993, ¶12.2-12.9 (wherein the HRC

had to interpret “his own country” in article 12(4) to define and differentiate it from “his country

of nationality”).60 Sara Joseph, Jenny Schulz and Melissa Castan, THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY, (2nd edn. 2004), 24.61 Observations of the Unitd States on General Comment No. 24(52), Report of the Human Rights

Committee, GOAR Supplement No. 40 (A/50/40(1), Annex VI, p.126. (“[t]he Covenant Scheme

does not impose on State Parties an obligation to give effect to the Committee’s interpretations or

confer on the Committee the power to render definitive or binding interpretations of the

Covenant.”)

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comments, views, and reports do elaborate on what is necessary to carry out the “object

and purpose” of the ICCPR. By using these sources to elaborate on current

understandings of treaty obligations, States can more effectively implement the Covenant

in “good faith”62—the “golden rule” of treaty interpretation.63

Who is protected?

The HRC provides a comprehensive definition of who comprises “persons

deprived of their liberty”64 in the 1992 General Comments for Article 10. As discussed

above, the HRC has the ability to release General Comments regarding the specific

Covenant articles, in order to provide guidance for their interpretation and

implementation.

Paragraph Two defines these liberty-deprived persons as “appl[ying] to any one

deprived of liberty under the laws and authority of the State who is held in prisons,

hospitals - particularly psychiatric hospitals detention camps or correctional institutions

or elsewhere.”65 These positive obligations apply to protect any “persons who are

particularly vulnerable because of their status as persons deprived of liberty”66 and the

“rule must be applied without distinction of any kind”67 to the types of incarcerated

individuals, mentally ill or not. These clarifying comments indicate that protections must

62 VCLT, supra note 76, Art. 31¶1.63 Thomas A. Coulter, Comment, Testing The United States’ Commitment to International Law:

The Conflict Between Title VII and Treaties of Friendship, Commerce, and Navigation, 25 WAKE

FOREST L. REV. 287, 296 (1990).64 ICCPR article 10(1)65 General Comment 21, ¶2. (1992). Interestingly, the protection even applies in banishment.

(Mpandanjila et al v. Zaire 138/83).66 Id. at ¶367 Id. at ¶4

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apply to the mentally ill while incarcerated, especially due to their particular

vulnerability, beyond the permissible “restrictions that are unavoidable in a closed

environment.”68 While determining who receives these protections is fairly

straightforward, determining the scope of Article 10(1) protections requires a much more

complex inquiry.

Interpreting the Scope of Article 10(1) Protection

Human rights treaties, such as the ICCPR, are purposefully broad and vague in

their construction. Unlike some other treaties, human rights treaties “regulate the conduct

of States towards individuals by assigning rights to individuals and correlative duties to

states.”69 The ICCPR is a primary example of this type of treaty—it contains broad

language regarding context for application, when the obligations apply, or when they

don’t apply. The ICCPR assigned the duty of respecting and ensuring its provisions,

including Article 10(1) in its own Articles 2(1)-(2): the signatory State is the one which

must “undertake necessary steps” to “adopt such laws or other measures which might be

necessary to give effect to the rights recognized [herein].”70

Further, Article 2(3) lays out the positive obligations by which signatory states are

bound,71 holding governments accountable not only for rights violations, but also when

68 Id. at ¶3.69 Basak Calt, Specialized Rules of Treaty Interpretation: Human Rights, Chapter 21, THE

OXFORD GUIDE TO TREATIES, edited by Duncan Hollis, Oxford University Press, Sept 2012,

pp.530 (hereinafter “Specialized Rules”)70 ICCPR art. 2 (1)-(2)71 Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto

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the government has failed to provide protective measures. While the Covenant essentially

leaves the implementation of these obligations to the State, “that implementation does not

depend solely on constitutional or legislative enactments, which in themselves are often

not per se sufficient.”72 Such is the case within the United States with regard to prisoner’s

mental healthcare: while certain statutory and constitutional protections are implemented,

standing alone these do not offer equivalent protections afforded to these same

individuals under the ICCPR.

This vagueness is an important aspect of human rights treaties, as they “apply to a

much larger universe of situations” and must be interpreted “in light of changing

political, social, and economic justifications of State policies.”73 In order to ensure

appropriate amounts of protections for citizens, however, the State must first be able to

determine in which situations these human rights protections are violated.

Article 10(1) As Interpreted by the Vienna Convention on the Law of Treaties

In order to assist with treaty interpretation, the International Law Commission

drafted the Vienna Convention on the Law of Treaties (“VCLT”) to provide, at the very

least, “scaffolding for the reasoning on question of treaty interpretation.”74 Adopted in

determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

ICCPR, supra note __, Art. 2 ¶3.

72 General Comment 3: “Implementation at the national level”, Art. 2, ¶1.73 “Specialized Rules”, supra note 70, at 531.74 Richard Gardiner, The Vienna Convention Rules on Treaty Interpretation, chapter 19, THE

OXFORD GUIDE TO TREATIES, at 477. (Hereinafter “The Vienna Convention Rules”)

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1969, the VCLT75 is essentially a codification of the tools of treaty interpretation

previously attributed to customary international law. The United States recognizes the

Vienna Convention as the primary guide to treaty law and practice: the Department of

State, on multiple occasions, has “stated that it regards particular articles of the

Convention as codifying existing international law, and U.S. courts have also treated

particular provisions of the Vienna Convention as authoritative.”76 Article 31 of the

VCLT outlines the “general rule of interpretation.”

Article 31(1) establishes that all treaties shall be interpreted “in good faith” and in

“accordance with ordinary meaning given to the terms” both “in their context” and “in

the light of its object and purpose.”77 This is perhaps the most important clause. Further,

the ordinary meaning must be considered together with the context, the object, and the

purpose of the treaty, and none may be given greater weight than the others.78 Academics

often criticize this important provision as circular: “the text of a treaty must be interpreted

in light of the treaty’s object and purpose, but the treaty’s object and purpose must be

discovered through interpretation of the text itself.”79

Scholars often adopt a teleological approach when attempting to understand this

term.80 Under a teleological approach, the design, purpose, or overall goals of words are

75 Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, entered into force

on 27 January 1980. (hereinafter “VCLT”).United Nations, Treaty Series, vol. 1155, p. 33176 Avagliano v. Sumito Shoji America, Inc., 638 F.2d 552 (1981).77 VCLT, art. 31(1).78 Anthony Aust, MODERN TREATY LAW AND PRACTICE 188 (2000)79 David S. Jonas, Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive

Methods”, 42 VAND. J. TRANSNAT’L L. 565, 573 (2010).80 Id. at 80.

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considered—essentially, the object and purpose of “object and purpose.”81 Here, the

language of the VCLT to interpret a treaty “in light of its object and purpose” suggests “a

holistic mode of interpretation that accounts for more than the goals of specific treaty

provisions and encompasses the normative logic that presents itself when the entirety of

the treaty’s provisions are considered together.”82 With respect to the ICCPR, its holistic

goals include the preservation and protection of human rights, delineated within its

preamble: the “recognition of the inherent dignity and of the equal and inalienable rights

of all members of the human family is the foundation of freedom, justice and peace in the

world” which are “derive[d] from the inherent dignity of the human person.”83

Paragraph 2 of Article 31 provides that for the purpose of interpreting a treaty, the

‘context’ of a treaty and includes the text and its preamble and annexes, any agreement or

instrument in connection with the conclusion of the treaty and any subsequent agreement

and practice regarding its interpretation, such as the General Comments.

Article 31(3) provides additional factors (beyond the text) to be taken into account

when discerning a treaty’s meaning: subsequent agreements regarding the interpretation

of a treaty or the application of its provisions, subsequent practice in the application, and

any relevant rules of international law applicable in the relations between the parties.

Here, as the General Comments have already clarified who qualifies as a “person

deprived of liberty,” the remaining terms left to interpret are “humanity,” “respect” and

“inherent dignity.” Per Article 31(1), a “good faith interpretation” of these terms would

require an examination of the context of Article 10(1) as part of the entire ICCPR treaty,

81 Id.82 Id. at 581.83 ICCPR, Preamble.

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as well as an inquiry of the holistic goals sought by the treaty. 84 This suggests that a state

may “respect” the “humanity” and “inherent dignity” or an individual by promoting their

freedom and peace. This meaning of “freedom” and “peace” from oppressive State action

is concurrent to the meaning given to these three terms by the “object and purpose” of the

ICCPR, per Article 31(1). The horrific crimes against humanity during World War II

created a strong consensus that protection and promotion of human rights was a matter of

international concern, particularly protection from oppressive State actors and conduct.

In the context of an incarcerated individual, this freedom refers more to the freedom and

peace from harmful conduct, as certain freedoms to act are reasonably denied based on

the nature of incarceration.

To help States further understand what is necessary to implement the ICCPR’s

“object and purpose,” additional sources of international law—particularly the HRC’s

General Comments and other UN drafted “soft law”—offer persuasive interpretations.

General Comments & “Soft Law” sources

By submitting general comments and decisions on petitions submitted under the

ICCPR’s Optional Protocol with “pervasiveness and analytical rigor,” the HRC’s

decisions provide signatory States with a concrete set of examples of treaty violations,

deepening their understanding of obligations under the ICCPR.85

84 ICCPR, Preamble.85 Kerstin Mechlam, Treaty Bodies and the Interpretation of Human Rights, 42 VAND.J.

TRANSNAT’L L. 905, 921-922 (2009).

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To this end, the HRC has published thirty-four general comments since 1981,

providing clarification on the Covenant’s terms. In 1992, the HRC published its twenty-

first General Comment to assist with the interpretation of Article 10.

The General Comments provide specific detail on certain types of impermissible

conduct:

Article 10, paragraph 1, imposes on States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty, and complements for them the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 of the Covenant. Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons.86

General Comment No. 7 provides further, complementary guidance as to what

comprises the definition of “torture,” but it too provides few concrete examples of

impermissible conduct or standard minimum treatment guidelines:

As appears from the terms of this article, the scope of protection required goes far beyond torture as normally understood. It may not be necessary to draw sharp distinctions between the various prohibited forms of treatment or punishment. These distinctions depend on the kind, purpose and severity of the particular treatment. In the view of the Committee the prohibition must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure. Even such a measure as solitary confinement may, according to the circumstances, and especially when the person is kept incommunicado, be contrary to this article. Moreover, the article clearly protects not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions.87

In order to more accurately determine the types of conduct that would violate

treaty obligation under the ICCPR, the General Comments suggest exploring external

86 ICCPR art. 2187 General Comment 7, ¶2 (1992).

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principles and regulations, inviting state parties to “indicate in their reports to what extent

they are applying relevant UN standards applicable to the treatment of prisoners.”88 In

their written decisions, the Committee has referred to these “soft law” instruments as

“constitut[ing] valuable guidelines for the interpretation of the Covenant.”89 These written

instruments include: the Standard Minimum Rules for the Treatment of Prisoners

(1957)90, the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment (1988)91, the Code of Conduct for Law Enforcement Officials

(1978)92 and the Principles of Medical Ethics relevant to the Role of Health Personnel,

particularly Physicians, in the Protection of Prisoners and Detainees against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (1982)93.

Of these four sources, the “Standard Minimum Rules,” adopted by the United

Nations in 1957, provides the most relevant guidance to prison administrators when

88 General Comment 21, ¶3.89 Herbert T. Potter v. New Zealand, Communication No. 632/1995, ¶4.5, 6.390 Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations

Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955,

approved 31 July 1957 ESC Res 663C(XXIV), amended 12 May 1977 ESC Res 2076(LXII))

(hereinafter “Standard Minimum Rules”).

91 Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment, A/RES/43/173 approved 9 December 1988, ¶24 (hereinafter “Body of Principles”)92 Code of Conduct for Law Enforcement Officials, Adopted by General Assembly resolution

34/169 of 17 December 1979, See Articles 2, 5, and 6. (including protection from cruelty, torture,

and the promise of immediate and appropriate medical attention.) 93 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians,

in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, adopted by General Assembly resolution 37/194 of 18

December 1982. (hereinafter “Principles of Medical Ethics”).

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implementing human rights protections for mentally ill prisoners.94It is a set of policies

advising that correctional facilities must provide properly qualified, sufficiently staffed

medical health care to prisoners in order to meet human rights obligations. This right to

incarcerated healthcare extends specifically to those in need of mental health services.95

The Rules recognize that mental healthcare must be comprehensive:

It should involve a wide range of rehabilitative and therapeutic activities, including access to occupational therapy, group therapy, individual psychotherapy, art, drama, music and sports. Patients should have regular access to suitably-equipped recreation rooms and have the possibility to take outdoor exercise on a daily basis; it is also desirable for them to be offered education and suitable work.96

Further, of particular relevance from the “Body of Principles” is Paragraph 24, which

states:

A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge.97

The Code of Conduct for Law Enforcement Officials provides more inter-

connected principles of human dignity relevant to mentally ill prisoner protection,98

providing in its Article 1 commentary references to the same sources of supplementary

sources of law referenced by General Comment 21:

 The human rights in question are identified and protected by national and international law. Among the relevant international instruments are . . . the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,

94 See “Standard Minimum Rules” supra note 95.95 “Standard Minimum Rules,” supra note 95, at art. (22)-(26).96 Sasha Abramsky, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS,

Human Rights Watch 2003, pp.206.97 See “Body of Principles,” supra note 96.. at ¶24.98 “Code of Conduct”, supra note 97., at Art. 1 commentary.

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Inhuman or Degrading Treatment or Punishment . . . the Standard Minimum Rules for the Treatment of Prisoners and the Vienna Convention on Consular Relations.

The last of these four suggested interpretive aids, the “Principles of Medical

Ethics,” provides a positive obligation on physicians and medical staff to provide

prisoners with “protection of their physical and mental health and treatment of disease of

the same quality and standard as is afforded to those who are not imprisoned or detained”

and holds the engaging of acts of cruel and unusual punishment or torture to be in gross

violation of medical ethics.99

“Soft Law”

The ICCPR, as a treaty, is considered “hard law”—it is a legally binding

instrument, which gives its signatory States binding obligations. The preceding four sets

of principles and regulations, while drafted by the United Nations, are considered quasi-

legal “soft law,” the opinion of which ranges among critics from non-binding to “window

dressing.”100 Objectively, “soft law” can be used to fill in the proverbial gaps left by the

vague language often used in human rights treaties. Further, while “hard law” can allow

international actors reduce transactions costs, strengthen the credibility of their

commitments, and resolve problems of incomplete contracting, it often restricts actors’

behavior and is met with many limiting reservations.101 The most obvious short coming of

“soft law” is its non-binding, non-enforceable nature, and, were the States themselves

attempting to interpret the ICCPR using these “soft law” principles, their impact on

99 “Principles of Medical Ethics”, supra note 98, at Art. 1-2.100 Kenneth W. Abbott and Duncan Snidal, Hard and Soft Law in International Governance,

International Organization 54, 3, Summer 2000, pp. 421–456. 101 Hard and Soft Law, supra note 105 at 422.

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interpretation would be much weaker. In the context of the ICCPR, however, the

implication and use of these “soft law” norms is by the HRC—which under ICCPR’s

treaty terms is permitted to provide commentary for its interpretation and

implementation. These General Comments and “soft law” principles can be used to

further interpret the “object and purpose” of the ICCPR, allowing for a greater

understanding of the scope of Article 10(1).

Viewing the broad language of Article 10(1) in light of these more specific

guidelines (and specific treatment minimums outlined in the “Standard Minimum

Rules”), many of the conditions mentally ill inmates are facing currently (being held in

incommunicado detention, being exposed to psychological and verbal abuse from officers

and other inmates, and being denied adequate mental healthcare, and being exposed to

long periods of isolation and overcrowding)102 are in violation of international treaty

obligations.

Part IIB: Interrelated Rights of the ECHR and the ICCPR

As mentioned above, when interpreting the Covenant, States may take into

account analogous or corresponding provisions in other human rights sources of law. As

noted by former International Court of Justice judge A.A. Cancado Tridade:

“given the multiplicity of co-existing human instruments in our days, it comes as little or not surprise that the interpretation and application of certain provisions of one human rights treaty have at times been resorted to as orientation for the interpretation of corresponding provisions of another (usually newer” human rights treaty.”103

102 Beth Midgley and Cecilia Riebl, Right to Humane Treatment in Detention: How Do Victorian

Prisons Rate? Case Study Presentation for Blake Dawson Waldon, International Law Firm,

Sydney Australia, 17 May 2007. Available at: http://bit.ly/VrmGVQ 103 Co-Existence and Co-ordination of Mechanisms of International Protection of Human Rights

(at Global and Regional Levels), 202 RECEUIL DES COURS (1987-II), 9, 101.

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As such, interpretive bodies of one treaty often look to the decisions and communications

of other interpretive bodies for treaties containing many similar provisions and holistic

goals, particularly within the human rights realm. One such body of particular helpfulness

in interpreting the ICCPR is the European Convention on Human Rights (“ECHR”).

There are three concrete connections which justify using these treaties as cross

references for interpretation: First, the object and purpose of the ECHR and the ICCPR

are identical: to promote and protect human rights. Second, these two treaties govern

same, or at least an arguably similar, similar scope of rights. Third, all human rights

treaties, including the ICCPR and the ECHR, derive from the same set of principles

delineated within the Universal Declaration of Human Rights.104

The ECHR, drafted in 1950 and entered into force in 1953, aims to protect and

respect a “profound belief in those fundamental freedoms which are the foundation of

justice and peace in the world”105 by protecting many of the same provisions as the

ICCPR—right to life106, protection from torture107, fair trial rights108, and protection of the

freedoms of expression109, religion110, and so forth. Of particular relevance to Article

10(1) of the ICCPR is ECHR’s Article 3, which states: “No one shall be subjected to

torture or to inhuman or degrading treatment or punishment.”111 This clause reads almost

104 Shiyan Sun, The Understanding and Interpretation of the ICCPR in the Context of China’s Possible Ratification, 6 CHINESE JOURNAL OF INTERNATIONAL LAW 33 (2007)..105 European Covenant on Human Rights, (previously known as the Convention for the Protection

of Human Rights and Fundamental Freedoms), Rome 4.XI.1950. (hereinafter “ECHR”)106 ECHR, Article 2.107 Id, at Art.3.108 Id. at Art.6.109 Id. at Art. 10.110 Id. at Art. 9.111 ECHR, Art. 3.

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identically to the ICCPR’s Article 7, which states: “No one shall be subjected to torture

or to cruel, inhuman or degrading treatment or punishment.”112 As discussed above,

Article 7 and 10 are read as complimentary Articles. Because of this connection, any

interpretations of EHCR’s Article 3 will be helpful to further understanding the scope and

implementation of ICCPR’s Article 10(1).

The European Court of Human Rights, the body responsible hearing cases

involving ECHR violations, has produced a number of helpful case decisions that help

outline what conduct constitutes an Article 3 treaty violation (and, by deduction, an

Article 10(1) violation), all occurring in developed, democratic countries:

Keenan v. United Kingdom113

Mark Keenan, a 28-year-old British citizen, committed suicide by hanging while serving

a sentence of four months at HM Prison Exeter in 1993.114 His mother brought suit under

an alleged violation of Article 3 of the EHCR, claiming her son had died from suicide in

the prison due to a failure by the prison authorities to protect his life, and that he had

suffered inhuman and degrading treatment due to the conditions of detention imposed on

him.115 Mr. Keenan had received treatment for paranoid schizophrenia prior to his

entrance into prison on an assault charge, and had been considered mentally ill since the

age of 21.116 His medical history included symptoms of paranoia, aggression, violence

and deliberate self-harm, and he was often found attempting to take his own life, both in

112 ICCPR, Article 7.113 Application No. 27229/95 Judgment (Merits and just satisfaction) (March 04, 2001). Available

at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59365. 114 Id. at ¶10115 Id. at¶11116 Id.

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hospital and prison settings.117 Instead of providing him with adequate care and

medication regimes during his less severe episodes of psychosis, he received instructions

to “calm down and think positively”118 from doctors.

Mr. Keenan was on multiple occasions placed in an unfurnished room whenever

he audibly indicated he planned to kill himself, and even had nooses confiscated from

him.119 Instead of transferring him to a psychiatric hospital, doctors continued to under-

diagnose Mr. Keenan and offer only changes in his medicine regimen, stating in their

notes sentiments such as: “He is an old patient of mine who suffers from a mild, chronic

psychosis. He is not usually violent, although he is easily stressed and then can be

unpredictable.”120 After being prescribed the wrong medication by a doctor untrained in

psychiatry, Mr. Keenan assaulted two officers, and was again placed in “punishment.”121

After a string of behavioural outbursts, unsuccessful medication adjustments, and solitary

confinements, Mr. Keenan’s medical records show no entries from May 3rd, 1993 until

his suicide on May 15th.122 Mr. Keenan left a suicide note, which read:

“As you will well know I am in prison for assault on [G.S.], which I received 4 months. I cannot take much more. I have seen Dr Rowe in here he wrote me up for some new tablets fenzodine white tablets like white smarties. I just went mad on them, and ended up on assault on two staff. I am asking you if you can give me treatment when I get out and get me better. I was using drugs in Bmth as well, I feel very unstable but the doctor will not help me at all. I need help please could you send the Governor a report on me, I can’t take much more.”123

117 Keenan v. UK, at ¶11.118 Id. at ¶13119 Id. at ¶15.120 Id. at ¶18, emphasis added.121 Id. at ¶20-21.122 See generally Keenan v. UK.123 Id. at ¶44.

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Based on this set of facts, the Court found this conduct amounted to an Article 3

violation, as well as a violation of domestic prison regulations requiring appropriate

medical staff to be available for those individuals suffering from mental illness, as well as

appropriate implementation of discipline and confinement, especially with regard to

vulnerable populations like the mentally ill. The court reasoned:

The lack of effective monitoring of Mark Keenan’s condition and the lack of informed psychiatric input into his assessment and treatment disclose significant defects in the medical care provided to a mentally ill person known to be a suicide risk. The belated imposition on him in those circumstances of a serious disciplinary punishment which may well have threatened his physical and moral resistance, is not compatible with the standard of treatment required in respect of a mentally ill person.

Slawomir Musail v. Poland124

Mr. Musail is a 27-year-old in Herby State Prison in Poland on suspicion of

committing robbery and battery.125 Mr. Musail alleged that the medical care and treatment

offered to him during his detention in Sosnowiec and Zabrze Remand Centres and Herby

Stare Prison had been inadequate in light of his epilepsy (a condition he suffered from

since early childhood), schizophrenia and other mental disorders. He also complained of

overcrowding and poor conditions in the above-mentioned detention facilities.126 After he

had tried on multiple occasions to hang himself and complained of hallucinations, he was

diagnosed with schizophrenia.127 Despite the doctor’s suggestion that he remain under

supervision, prison officials returned Mr. Musail to normal prison quarters due to

124 Application no. 28300/06 (May 06, 2009).

125 Id. at ¶7.126 Id. at ¶3.127 Id. at ¶15.

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overcrowding in the mental hospital.128 During his detention, Mr. Musail was examined

thirty-five times by doctors with different specialties, including a psychiatrist and a

neurosurgeon.129

Even with what the State considered to be diligent medical attention provided to

Mr. Musail, the Court still found a violation of Article 3, based largely on the fragile

nature of mentally ill inmates:

[D]etained persons who suffer from a mental disorder are more susceptible to the feeling of inferiority and powerlessness. Because of that an increased vigilance is called for in reviewing whether the Convention has been complied with. While it is for the authorities to decide, on the basis of the recognized rules of medical science, on the therapeutic methods to be used to preserve the physical and mental health of patients who are incapable of deciding for themselves, and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3.130

Khudobin v. Russia131

Mr. Khudobin was imprisoned after being convicted on several charges of drug

trafficking. Since the mid-nineties, he suffered from chronic diseases such as epilepsy,

pancreatitis, chronic viral hepatitis B and C and various mental deficiencies.132 While on

trial for these crimes, Mr. Khudobin underwent three psychiatric examinations, which all

concluded that he that he “suffered from a chronic mental disease in the form of epilepsy

with polymorphous seizures and comparable psychic problems and with evident psychic

modifications, with a tendency to drug use”.133 Instead of receiving proper medical

attention for his psychotic disorders, Mr. Khudobin was “repeatedly transferred from one

128 Musail v. Poland, at ¶15.129 Id. at ¶21.130 Id. at ¶96.131 Application No. 59696/00 (October 26, 2006)132 Id. at ¶22.133 Id at ¶28.

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cell to another, in spite of a high temperature (40 C˚) and fever, and . . . spent three days

in a cell with purulent patients and slept on the floor on account of a shortage of sleeping

places.”134

Upon the Court’s request, the State produced multiple doctor’s notes, all

indicating that Mr. Khudobin’s health was “satisfactory” to “relatively satisfactory”

despite his repeated seizures, measles and HIV diagnoses, or without any mention of

treatment for his documented mental illnesses.135 Medical attention for his epilepsy was

so sparse, in fact, that on one occasion his cell-mates had to administer him medicine via

injection to stop an epilepsy seizure.136

This inadequacy of physical medical attention for a mentally ill patient also

amounted to an Article 3 violation, according to the Court:

As to the mental effects, he must have known that he risked at any moment a medical emergency with very serious results and that no qualified medical assistance was available. . . this must have given rise to considerable anxiety on his part . . .[t]his increased the risks associated with any illness he suffered during his detention and intensified his fears on that account.137

Thus, even primarily physical medical ailments negligently attended to, when occurring

on a vulnerable inmate like Mr. Khudobin, amounted to “degrading treatment” within the

Article’s meaning.

The findings and explanations of the preceding ECtHR cases provide helpful

insight as to what conduct should be avoided and what protections are necessary to

ensure the fulfillment of Article 10(1)’s “object and purpose.” Using these cases, as well

as specifics provided within the aforementioned “soft law” instruments, provides further

134 Musail v. Polant at ¶28.135 Id. at ¶42-44.136 Id. at ¶87.137 Id. at ¶96.

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support that mental healthcare for prisoners within the United States is currently in

violation of Article 10(1).

Part III: Domestic Violations of Article 10(1): Specific Cases of Mentally Ill

Prisoners within the US

In light of this deeper understanding of the obligations and scope of Article 10(1),

the conduct occurring within many prisons across the United States arguably constitutes

an ICCPR treaty violation. The following four cases are from across the United States,

and all focus on inhumane conduct against mentally ill prisoners. Although these

individuals raised Eighth Amendment claims, treaty violations are also present:

Case 1: Elvis Jones, California

Mr. Jones is currently incarcerated at the Richard J. Donovan Correctional

Facility (DCF) in San Diego, California.138 He has been incarcerated since 2008, and

prior to his incarceration, had been diagnosed by his own private psychologist as having

both bi-polar disorder and Post-Traumatic Stress Disorder (PTSD).139

Mr. Jones requested psychological treatment and evaluations on multiple

occasions, to which the prison medical doctors told him the “state would not provide him

treatment for PTSD due to the state experiencing a budget shortage.”140 After filing a

grievance, Mr. Jones was told by Doctor Vail, the prisoners’ on-staff medical doctor, that

the treatment program did not have adequate staff to provide him with the treatment he

requested. Mr. Jones asked for a transfer to Atascadero State Hospital in San Louis

Obispo County. Mr. Jones asserts medical staff refused because this would be seen as “an

138 Jones v.Vail, 2012 WL 1988291 (S.D.Cal, June 4, 2012).139 Id. at *1140 Id.

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admission of failure on their part.” 141

The prison did provide Mr. Jones with one PTSD treatment, but it was with a

doctor who was untrained in the disease. Further, after his single treatment, Mr. Jones

was no longer able to receive one-on-one therapy, instead forced to attend a group

therapy class for individuals with substance abuse issues—not mental disorders.142 Mr.

Jones started to have reoccurring dreams of “death and anxiety.”

Left untreated without medicine or therapy, Mr. Jones behavior would disturb his

cellmates, as he would sleep with the cell lights on and screamed “throughout the night.”

Mr. Jones was also unable to cope when there were incidences of violence, and he

was unable to follow correctional officers directions due to his PTSD, causing him to be

disciplined frequently with punishment of isolation, which exacerbated his conditions.

Donovan Correctional Facilities’ treatment of Mr. Jones, a documented mentally

ill prisoner denied adequate treatment which he desperately needed to remain stable,

constitutes a violation of ICCPR’s Article 10(1), which requires all persons deprived up

their liberty to be treated with “inherent dignity,” “humanity” and “respect.” 143

The “object and purpose” of Article 10(1) is more deeply understood when read

in light of both international case law corresponding to the articles holistic goals, as well

as specific “soft law” standards for the treatment of imprisoned individuals. Here, Mr.

Jones inability to respond to standard forms of isolation punishment mirrors the mentally

illness symptoms of Mr. Keenan in Keenan v. United Kingdom.144 Both Mr. Jones and

Mr. Keenan found themselves in circular patterns of punishment, exacerbation of mental

141 Id.142 Id. at *1143 See Article 10(1).144 Keenan v. UK, Application No.27229/95.

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illness symptoms due to inappropriate punishment, and subsequent outbursts due to

mounted stress and anxiety beyond that experienced by a sane prisoner.

. Mr. Jones’s presence in a prison alone constitutes a violation of the treatment of

mentally ill under the Standard Minimum Rules. Keeping Mr. Jones in a correctional

facility and not a specialized treatment center violates Article 82(1), which states: “(1)

Persons who are found to be insane shall not be detained in prisons and arrangements

shall be made to remove them to mental institutions as soon as possible.”145

Underfunding cannot be used as a justification for this type of treatment. The

General Comments provide that “the application of [Article 10], as a minimum, cannot be

dependent on the material resources available in the State party,”146 thus, DCF cannot

justify this lack of programming by alluding to lack of funding. It is the responsibility of

the State to provide appropriate medical care, particularly mental healthcare,147 which was

not done here, even if budgetary concerns are raised.

Further, the type of isolation that Mr. Jones faced was in violation of the standards

for punishment delineated in the Standard Minimum Rules. Under Article 31 and 32(2),

“Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or

degrading punishments shall be completely prohibited148” and “shall apply to any other

punishment that may be prejudicial to the physical or mental health of a prisoner.”149 Mr.

Jones was left without control of his own actions, unable to follow administrative

145 Standard Minimum Rules, supra note 95 , at art 82(1).146 General Comment 21, ¶4147 The “soft law sources in ¶5 also contain specific clauses underscoring the importance of

appropriate and adequate mental health care, and are discussed infra.148 Standard Minimum Rules, supra note 95, at art. 31.149 Id. at 32(2).

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commands and unable to sleep due to his extreme paranoia caused by isolation and

traditional forms of punishment.150

Finally, Mr. Jones’s subsequent release does not ameliorate the conduct to which

he was subjected. The Body of Principles, in its general clause, states: “the term "cruel,

inhuman or degrading treatment or punishment" should be interpreted so as to extend the

widest possible protection against abuses, whether physical or mental, including the

holding of a detained or imprisoned person in conditions which deprive him, temporarily

or permanently.”151 As such, despite the fact that Mr. Jones’s incarceration was only

temporary and low-level, he was to be incarcerated in a “humane manner.”152 The

negligent behavior of staff towards Mr. Jones medical needs, albeit for a shorter period of

time than the other cases discussed, still amounts to a treaty violation under Article 10(1).

Case 2: Troy Anderson, Colorado

Mr. Troy Anderson has been incarcerated for all but three years since 1991.153 He

is currently housed at the Colorado State Penitentiary, serving an eighty-three year

sentence for two shootouts with police during attempts at escape.154 Mr. Anderson is

presently forty-two years old, and suffers from mental illness—anti-social personality

disorder, borderline personality disorder, and narcissistic personality disorder, which

requires him to be on multiple medications, including Ritalin and Wellbutrin.155

Because of his mental illness, guards tagged Mr. Anderson as “disruptive” and

150 Jones v. Vail, 2011 WL at Plaintiff’s Brief151 Body of Principles, supra note 96 , at General Clause.152 Id. at ¶1.153 Anderson v. Colorado, 2012 WL 3643063, (D. Col. Aug 24, 2012)154 Id. at *1.155 Id.

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placed him in the 23-hour-a-day isolation and segregation at CSP “is broken only by, in

my understanding, taking an inmate out of his cell to another cell for exercise” which is

the “antithesis of outdoor activity”156 Instead of providing him with the appropriate

therapy and medicinal treatment for his mental illness, the State asserts that “he remains

too much of a security risk to progress out of administrative segregation.”157 Ironically,

the reason he remains such a high risk is due entirely to the lack of treatment he is

receiving for his mental illness, which would require him to be removed from his cell to

receive.

Thus, Mr. Anderson sits in his cell, without outside interaction, in a “pen.”158 The

cell contains a metal bed, desk, toilet and three shelves.159 There is small vertical glass

window that admits light but which, because of its placement in relation to the bed, desk

and shelving, is difficult to access to look out and a light in the cell is left on 24 hours a

day160. Mr. Anderson can hear the screaming and murmurs of others attempting to

communicate, but he cannot hear any words or conversations.161

This extreme isolation of an individual suffering from mental illness has left Mr.

Anderson with a shadow of the “inherent dignity” the State is required to protect under

ICCPR Article 10(1).162

As Dr. Raymond Patterson, an expert witness psychiatrist, described in his

deposition regarding Mr. Anderson prior to trial:

156 Deposition of Dr. Raymond Patterson, April 19, 2011157 Anderson v. Colorado, 2012 WL at *1.158 Deposition of Dr. Raymond Patterson, supra note 161.159 Anderson v. Colorado, 2012 WL at *1.160 Id. .161 Id. .162 ICCPR art. 10(1).

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A lot of mental health treatment generally is to try to normalize life experiences, normalize life participation expectations, et cetera, part of -- just the appreciation of life at least in my opinion has to do with being able to enjoy some basic things like being outside. I can't think of a clinical reason or even a custody reason that you would deny someone being outside for ten years. It just doesn't make any sense to me.163

Article 10(1) provides a positive obligation on the state to treat individuals with

“humanity”164—by locking Mr. Anderson in a concrete box for twenty-three hours a day,

then moving him into another concrete box for an hour, the States’ treatment is in

violation of minimum exercise requirements under the Standard Minimum Rules. Article

21(1) states: “Every prisoner who is not employed in outdoor work shall have at least one

hour of suitable exercise in the open air daily if the weather permits.”165 As was noted in

Musail v. Poland166, “[D]etained persons who suffer from a mental disorder are more

susceptible to the feeling of inferiority and powerlessness,” and thus, this practice,

although seemingly only affecting Mr. Anderson’s physical well-being, causes undue

anxiety and mental harm to him, as someone who suffers from mental illness.

Further, by refusing to let him leave his cell to receive adequate treatment, the

State is violating principle 5 of the Principles of Medical Ethics, which states:

“it is a contravention of medical ethics for health personnel to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself… and presents no hazard to his physical or mental health.”167

In Mr. Anderson’s case, receiving medical treatment for his personality disorders

required him to have social interaction with others. While the medical personnel justified 163 Deposition, supra note161.164 ICCPR art. 10 (1)165 Emphasis added.166 Application no. 28300/06.167 Principles of Medical Ethics, supra note 98.

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this detainment under safety reasons, the isolation presented a “hazard” to his physical

and mental health, which amounts to a violation under Article 10(1).

Case 3: Eric Vogel, Arizona

Eric Vogel undeniably suffered from mental illness.168 By the age of six, he was

showing signs of mental illness.169 His parents withdrew him from school when he was in

the second grade, and he was thereafter home-schooled until he graduated from high

school. At the time of the incident, Mr. Vogel, was thirty-six, and suffered from extreme

paranoia and delusions. He had not often left the house, and had never been employed.170

Police responded to a report of a burglar in the neighborhood and spotted Mr.

Vogel as a possible suspect.171 Mr. Vogel had been seen wandering aimlessly around a

neighborhood home and attempting to climb through a window by removing a screen.

The first officer on the scene struggled to get control of Mr. Vogel, as Mr. he shouted,

“Kill me.”172 When a second officer arrived, Mr. Vogel stated that he, Vogel, must see the

president. The officers reported that Mr. Vogel was hesitant to answer their questions and

would check with voices in his head before answering their questions.

Mr. Vogel was taken to the Maricopa County jail and placed alone in a holding

cell. Vogel was interviewed by a classification counselor, placed on a psychiatric hold,

168 Wagner v. Maricopa County, 2007 WL 6961295 (D. Ariz November 30, 2007).169 Id. .170 Id. .171 Id. 172 Id. at Plaintiff’s Brief.

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and referred to a psychiatric counselor to be assessed. Vogel told the psychiatric

counselor that he thought he was in the World Trade Center, satellites were causing him

to hear and see things, had been given cyanide, and something in the air was making him

feel weak.173 After Mr. Vogel was interviewed by a psychiatric counselor, the counselor

obtained an order from the staff psychiatrist to admit Vogel to the inpatient psychiatric

unit.

Before Mr. Vogel could be admitted to the psychiatric unit, however, he was

forced to change into a jail uniform, including mandatory pink underwear.174 During the

process, he yelled repeatedly that he was being raped, struggled against the officers

attempting to change him, and had to be removed in a restraint chair, as he suffered from

delusions and paranoia.175 Mr. Vogel was then strapped to a restraining chair and rolled to

the psychiatric unit. Mr. Vogel was later examined by a prison nurse, who noted that he

had “large bruises and contusions” on his legs176. Mr. Vogel spent a week in jail before

his mother paid bail for his release.

About a week later, while riding in his mothers car, Mr. Vogel was involved in an

accident. Mr. Vogel heard the police were coming he was terrified, and he became

anxious and ran four to five miles home.177

The next morning, Vogel complained of headaches and dizziness. He indicated he

was going to take a nap. About two hours later, Vogel's mother found him unconscious

on the floor by his bed. Emergency personnel were called but were unable to revive him.

173 Wagner v. Maricopa County, 2007 at Plaintiff’s Brief174 Id.175 Id.176 Id.177 Id.

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Vogel was pronounced dead at a nearby hospital. The Maricopa County Medical

Examiner determined that Vogel died of a heart attack.

In this action brought by his mother, Ms. Yvon Wagner, it is believed that the

heart attack which killed Mr. Vogel was caused by “paranoid schizophrenia and

psychosis and acute agitation” caused by the inadequate level of care received while

incarcerated, in violation of Article 10(1).178

By forcing Mr. Vogel to comply with dressing out procedures designed for

mentally stable inmates, the State is in violation of Article 2 of the Code of Conduct for

Law Enforcement Officials, which states: “law enforcement officials shall respect and

protect human dignity and maintain and uphold the human rights.”179 Mr. Vogel had

demonstrated clear signs of paranoia and hallucinations in a medical evaluation directly

before this dress-out procedure began, and law enforcement should have been able to

ascertain that this procedure was inappropriate for an individual in a fragile state like Mr.

Vogel. Mr. Vogel’s level of instability is similar to that of Mr. Keenan,180 who also

subsequently died due to negligence on behalf of State actors failing to address the needs

of a patient in a major psychotic episode.

Further, the Standard Minimum Rules calls for “such prisoners” as Mr. Vogel to

be placed under the special supervision of a medical officer” upon their entrance to

prison.181 By requiring Mr. Vogel to be restrained, stripped, and changed by several adult

males, while undergoing a psychotic episode, the State failed to conduct informed

psychiatric input into his assessment and treatment, causing irreparable psychological

178 See “Defendant’s Motion for Summary Judgment”179 Code of Conduct, supra note 97.180 See Keenan v. UK, Application no 27229/95.181 Standard Minimum Rules, supra note 95 , at ¶82(4).

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damage not compatible with the protections offered under Article 10(1).

Conclusion

The ICCPR is one of the most important human rights treaties to have emerged—

it was the first time the world came together to recognize and protect basic human rights

of freedom, peace, and dignity. With human rights violations still occurring within

prisons, the United States is not upholding its treaty obligations under Article 10(1) of

this Covenant.

Per guidance provided by Vienna Convention on Laws of Treaties, the findings of

the HRC in its General Comments should be viewed as persuasive authority for

interpreting the scope of US treaty obligations under Article 10(1). Further, the

instruments of “soft law” raised and applied by the HRC in these documents provide

further insight as to object and purpose of the Covenant. These interpretations, coupled

with comprehensive case law applying complementary human rights treaties from

different jurisdictions, provide States with a holistic understanding of the obligations

under Article 10(1). The domestic cases above provide a snapshot of the devastating state

of mental healthcare within prisons in the US, falling short of its international obligations

to promote and protect human rights for all its citizens, behind bars or not.

37