Stigmatized Prisoners

Lindsey Webb, Lecturer and Director of Public Interest at the University of Denver's Sturm College of Law, has written a thought-provoking article, The Procedural Due Process Rights of the Stigmatized Prisoner, that has been accepted for publication by University of Pennsylvania Journal of Constitutional Law.  Focusing particularly on prisoners who have never been convicted of any sexual offence but are nevertheless classified in prison as sex offenders, Webb addresses the question of "whether either the stigma of the sex offender label or the conditions imposed on the inmate (or both) trigger a liberty interest requiring procedural due process protections."  The article is available for download at SSRN. 

Comparing PREA Standards

The Project on Addressing Prison Rape at the Washington College of Law (American University) has just uploaded Comparing PREA Standards from NPREC Inception to Final DOJ Standards, consisting of side-by-side comparison charts for the National Prison Rape Elimination Commission's standards, the DOJ's Feburary 2011 standards, and the DOJ's final standards. Members of the Project are still working on the analysis.

Solitary Confinement: Torture in Your Backyard

David Stoelting, principal author of Supermax Confinement in U.S. Prisons, will moderate a program on solitary confinement on May 31, 2012, 7 to 9 p.m., at St. Francis College, Founders Hall, 182 Remsen Street, Brooklyn, N.Y.  Noting that "Rikers Island had increased it use of solitary confinement by 44% over the past two years, despite decreases in inmate population," the program will address the reasons why New York should put an end to this practice.

Speakers include: Pace Law School Professor Michael B. Mushlin, Rabbi Rachel Kahn-Troster, Director of North American Programs for Rabbis for Human Rights, and Sarah Kerr, staff attorney at the Prisoners’ Rights Project of The Legal Aid Society.

The 20-minute film, Solitary Confinement: Torture in Your Backyard, will also be screened. It was created by the National Religious Campaign Against Torture "to give a voice to the thousands of prisoners held in solitary confinement cells across the country."

For more information, email socialjustice@oratory-church.org 

The ECHR Steps Back?

Is the European Court on Human Rights, which provided significant encouragement for prisoner voting rights advocates with its decisions in Hirst v. The United Kingdom (no.2), Application no. 74025/01 (6 October 2005), and Greens and M.T. v. The United Kingdom, Application nos. 60041/08 and 60054/08, (3 November 2010, final 11 April 2011), now modifying its position?  Its most recent prisoner voting rights decision, Scoppola v. Italy (no. 3), Application no. 126/05 (22 May 2012), makes you wonder.  First, some context ...


In Hirst, the applicant was serving a life sentence for manslaughter and was thereby barred from voting in parliamentary or local elections under section 3 of the Representation of the People Act 1983, which states: "A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election."  The ECHR Grand Chamber held that this provision

strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.

Five years later, in Greens and M.T., the ECHR expressed its impatience with the UK.  The applicants were again convicted prisoners who were subject to the blanket ban on voting under section 3 of the Representation of the People Act 1983, which had not been amended since the Hirst decision.  The Court reiterated its position that it would be inappropritate for it "to specify what should be the content of future legislative proposals ...."  At the same it, it expressed it "view that the lengthy delay to date has demonstrated the need for a timetable for the introduction of proposals to amend the electoral law to be imposed."  The U.K. was given six months from the date of this final judgment for "the enactment of an electoral law to achieve compliance with the Court's judgment in Hirst ...." After the U.K inter- vened in Scoppola, commencement of the time limit was deferred after a decision in that case.


Italian Presidential Decree no. 223/1967, section 2, provides: "The following persons shall not vote: ... persons who have been sentenced to penalties entailing a lifetime ban from public office...[and] persons under a temporary ban from public office, for the duration of that ban."  The applicant, who had been convicted of murder and other charges and sentenced to to thirty years’ imprisonment and a lifetime ban from public office,was deleted from the electoral roll.  Unlike the prior cases, the Italian law was not applied "to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more [and it] adjusts the duration of the measure to the sentence imposed and thus, by the same token, to the gravity of the offence ...."  Noting that "the rights enshrined in Article 3 of Protocol No. 1 are not absolute," the Grand Chamber found that the provision in question was not "excessively rigid" and did not overstep the "margin of appreciation" accorded to each State "to mould into its own democratic vision."  It concluded, therefore, that there was no violation of Article 3 of Protocol No. 1.


At the same time, the Grand Chamber rejected the U.K.'s argument that the Hirst decision should be re-examined and reaffirmd that:

the principles set out by the Grand Chamber in the Hirst judgment ..., in particular the fact that when disenfranchisement affects a group of people generally, automatically and indis- criminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or gravity of their offence and their individual circumstances, it is not compatible with Article 3 of Protocol No. 1.

This latest case has already gendered comment, especially in the U.K.  See, for example: Prisoner Voting and Strategic Judging by Marko Milanovic, lecturer in law at the University of Nottingham School of Law, European Courtof Human Rights Retreats But Doesn’t Surrender on Prisoner Votes by Adam Wagner, founding editor of the UK Human Rights Blog and a barrister specializing in public law, human rights, and medical law. and ECtHR Grand Chamber Judgment: Scoppola v. Italy by Barrister and former U.K. government advisor Carl Gardner.

Aging Prisoners

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued today by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years. 

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found at http://www.hrw.org/reports/2012/01/26/old-behind-bars.

Michael B. Mushlin

Professor of Law

Pace Law School