Are US Prisons Degrading and Inhuman? European Court of Human Rights takes a Pass

A group of British terrorism suspects were a step closer to extradition to the United States today after a panel of the European Court of Human Rights (a chamber in their terms) declined to hold that confinement in the Federal government's notorious ADX "supermax" prison in Florence, Colorado, or the prospect of being sentenced to multiple Life without the Possibility of Parole sentences constituted "inhuman or degrading punishment" as prohibited by Article 3 of the European Convention on Human Rights (read the Court's press release here). The decision was a blow both to the suspects (including Abu Hamza al-Masri, a British Jihadi leader already serving a 7 year sentence for inciting racial hatred) who are facing charges related to multiple terror plots in the US and also to US human rights lawyers who had hoped to use the extradition issue to get the European Court of Human Rights to decide that US prisons and sentences constituted a human rights violation. A similar victory was achieved on the issue of the death penalty back in the late 1980s in the case of Soering v United Kingdom 11 Eur. Ct. H.R. (ser. A) (1989).

Supermax prisons and life without parole sentences are generally not practiced in Europe and there has been considerable opinion that both practices might constitute violations of Article 3. Recently another panel of the European Court upheld a "whole life term"in another British case, although the Court essentially found that the question of whether they had no meaningful chance at release was premature. See, Vinter and Others v. United Kingdom (Application nos. 66069/09 and 130/10 and 3896/10)

This case has much the same feel. The European Court of Human Rights like most courts, tends to work hard to construe the facts in such a way as to avoid having to declare the practices of its member states violations of human rights. While this case did not involve a member state, a ruling in favor of the prisoners would have called into quesiton extradition from European countries to the United States in all kinds of cases where either either supermax imprisonment or life without parole sentences were a possibility. Furthermore, while the Court may be less reluctant to morally condemn the US than its own member states, a favorable ruling here would have drawn comparisons between US justice and states like Jordan where the European Court of Human Rights had only recently prevented an extradition of a terrorism suspect.

On supermax the European Court of Human Rights panel chose to accept the most positive possible account of life in the ADX, citing the fact that prisoners would receive a variety of services not available in European prisons:

Besides, ADX inmates – although confined to their cells for the vast majority of the time – were provided with services and activities (television, radio, newspapers, books, hobby and craft items, telephone calls, social visits, correspondence with families, group prayer) which went beyond what was provided in most prisons in Europe.

European prison experts may be surprised by this (as I am), but it may reflect the slippery use of comparison. Perhaps television is not available in some European prisons but I would doubt that social visits by family are forbidden in any (indeed it would almost certainly violate separate provisions of the Convention which protect family life). Also, the federal government's supermax regime with its "stepdown" program for prisoners to move toward reassignment in the general population is considerably more humane than many state systems (especially California's which is only discussing adopting a stepdown approach).

On the life without parole issue, the European Court of Human Rights panel emphasized that if the prisoner facing the LWOP sentences were found guilty of the crimes charged, such a sentence would not be disproportionate. This still leaves open the possibility that a future panel of the European Court would act in the future when a more ordinary murder suspect (or a juvenile one if the Supreme Court upholds juvenile LWOP this summer) facing extradition to a likely LWOP sentence in the US seeks its intervention.

Yet even this must be qualified by the fact that in the recent decision on "whole life" terms, another panel of the Court was reluctant to fully accept the permanence of a whole life term, noting that possibilities for executive clemency remained open and that the case might present a different posture if it was clear that such possibilities had been effectively foreclosed. Clemency remains in the US as well, but in reality is never used, something a foreign court could easily discount. Compassionate release, the practice of releasing prisoners in terminal illness when public safety is not in danger, widely practiced in Europe and probably a human rights requirement, is generally not available in the US. The harsher realities of the US system were probably argued by lawyers for the prisoners and others but the Court have been reluctant to accept a realist assessment at least before any such sentence had actually been handed down.

For many of us engaged in the struggle against mass incarceration and its most inhuman instruments like supermax and LWOP sentences, the European system with its Court of Human Rights as well as other human rights organs of government has been a beacon. This decision by a chamber of the European Court of Human Rights seemingly upholding both should not discourage. When the law of dignity through the 8th Amendment of the US Constitution begins to come to the fore, it will be rightful place of American courts to find these practices unconstitutional.