Standard Minimum Rules for the Treatment of Prisoners

Check out David Fathi's recent blogs, filed from Buenos Aires, where he is attending the Inter-Governmental Expert Meeting on the UN's Standard Minimum Rules for the Treatment of Prisoners. David is the Director of the ACLU National Prison Project.

Children of prisoners

The Irish Penal Reform Trust, "an independent nongovernmental organisation campaigning for the rights of everyone in the penal system, with prison as a last resort," has just released "Picking up the Pieces": The Rights and Needs of Children and Families Affected by Imprisonment.  It describes the effect of imprisonment on those who "must endure their own sentence, despite not having perpetrated any crime."  Some of the problems discussed are: the impact of separation, barriers to visitation and maintaining the parent-child relationship, stigmatization, mental health issues, and difficulties in reunification.  While the report's recommendations are not applicable to all countries, since it was written in the context of the European Convention on Human Rights and the United Nations Convention on the Rights of the Child, the impact of a parent's imprisonment is universal.  Among the more standard suggestions for reform is one that recommends:

The best interests of the child should be a key consideration in proceedings where a parent may be remanded or sentenced to custody.

The report also suggests that impact statements from children of parents about to be sentenced "would be one practical approach which would permit the voice of the child to be heard."

Interesting reading!





  

 

Predatory Phone Pricing

Peter Wagner shares "a big victory ... in the movement to end predatory pricing of prison telephone services."  See the details in Movement Victory: FCC Proposes To Regulate Prison Telephone Industry.  Congratulations to those working on this issue!

New Prison Reform Advocates?

An interesting article in the latest issue of Washington Monthly explains how and why political conservatives have recently taken up the cause of prison reform.  David Dagan and Steven M. Teles point out that "[t]he 2012 Republican platform declares, 'Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.'”  Also, a "rogue’s gallery of conservative crime warriors" now apparently support Newt Gingrich's view that "[t]here is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential.”  Rehabilitation?  Lost human potential?  Hmmm......    

The Election Results Might Have Been Different

From Peter Wagner:
 
In anticipation of the recent election, Prison Policy Initiative and Josh Begley produced an intriguing inforgraphic entitled: "Should the states that bar the most people from the poles be allowed to pick the next president?"  Whether or not disenfranchisement changed the ultimate outcome this time around, it certainly had an impact on the popular vote.  As Peter wrote, "the graphic links the obscenely high rates of lifetime disentranchisement in Virginia and Florida with those states' status as "swing" states ...."

Solitary Confinement in California's Prisons

From Jennifer Allison:

Mother Jones is a publication to which I am proud to subscribe for its commitment to “smart, fearless journalism.”  Its November/December 2012 issue features an important investigative report by Shane Bauer, one of the American hikers who was arrested and imprisoned in Iran in 2009.  In the report, Bauer describes the California Department of Corrections and Rehabilitation (CDCR) program that assigns prisoners who are deemed to be threat to the general prison population to one of five Security Housing Units (SHU) in the state. 

SHUs in California, according to Bauer, “hold nearly 4,000 people in long-term isolation,”  many of whom are subject to an “indeterminate sentence.”  This can mean lengthy stays in solitary confinement, with little real hope of being released.  In the Pelican Bay prison’s SHU, for example, “[m]ore than half of the 1,126 prisoners…have been in isolation for at least five years.”

The length and indeterminate nature of these sentences are not the most appaling aspect of the system Bauer exposes in his report.  What is most shocking is how some of these prisoners wind up in solitary confinement in the first place.  If the state collects three pieces of evidence that can be used to “validate” a prisoner as a member of a gang, this is sufficient to send the prisoner to a SHU, where he can be placed in isolation indefinitely. 

Many of the types of evidence that officials can use to “validate” a prisoner as a gang member are flimsy at best.  These include, among other things, possession of “black literature,” drawings depicting Aztec symbols, or writings in the Nahuatl language of central Mexico.  Sometimes these materials are collected and used against prisoners to whom prison guards and officials have taken a dislike, merely as a way of removing those prisoners from the population.

According to the report, there are only two ways for a prisoner to be released from a SHU.  Either a prisoner can be “declared an ‘inactive’ gang member or associate,” or the prisoner can “debrief,” which means to tell authorities everything he knows about the gang with which he has been associated.  The first option is rarely successful, and the second carries the high risk of the prisoner getting himself killed once he returns to the general population.  The other alternative?  Wait it out in solitary confinement, which, as Bauer points out, can lead to extreme mental and physical illness and distress in those who are subjected to it for any length of time.

I have done my best to not let my personal feelings about Shane Bauer cloud my judgment of his report.  I had little sympathy for him and his two friends at the time of their arrest.  Frankly, they should have known better than to select, of all places, an area near the border of Iran, a country known for its hostility and volatile treatment toward the United States and Americans, as the location for their hiking trip.  My opinion on that matter has not changed that much over time, and I was not comfortable with his repeated references to himself as a “former hostage.”  Not that I doubt that his suffering was real and acute.  But it was his choice to place himself in a position where there was a real risk of being arrested and arbitrarily held by a regime that has been shown to hold international human rights standards in little regard. 

That said, I do believe that the time Bauer spent in solitary confinement in an Iranian prison more than qualifies him to research and write a scathing report on the damaging solitary confinement assignment program in the California prison system.  Frankly, this program sounds to me as if it raises serious constitutional concerns, especially regarding the First and Eighth Amendments.  I admit, however, that I am not familiar enough with the case law in this area to know for sure.  In any event, this is an important report, and those who believe in fair and just treatment for prisoners would be well-served to read it.

Children of the Incarcerated

The Sentencing Project has just released a new report entitled Video Visits for Children Whose Parents Are Incarcerated: In Whose Best Interest?  Written by research analyst Susan D. Phillips, the report looks at those situations in which video visits would be a positive addition to visitation procedures, especially in light of the fact that a majority of parent-prisoners are incarcerated more than 100 miles from their children.  However, she also looks at those instances when such visits would undermine personal relationships and concludes that "Children may benefit from video visitation if it increases opportunities for them to communicate with their parents [b]ut video visitation is not a substitute for in-person contact visits, particularly for infants and young children." Some of the technical and practical aspects of video visitation are also discussed.  Another, more technical report on video visitation from the Vermont Legislative Research Service was released in May 2011.  Prison Video Conferencing, prepared for Vermont Representative Peg Andrews, also discusses the use of this technology in a number of other states.

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Prisoner Healthcare, Guaranteed by Law: Are the Germans Getting it Right?

From Jennifer Allison:

I am very excited to have been accepted as a guest author for this excellent blog on prisoners’ rights law.  Like Margaret, I am also a law librarian who is deeply interested in prisoners’ rights.  My research specialization is in foreign and international law.  As I read German proficiently, my research focuses primarily on German-speaking countries.

Last summer I started a research project exploring the laws that define prisoner healthcare rights in Germany, with the eventual goal of comparing them to those rights of prisoners in the United States.  I undertook this project mainly to keep my German skills fresh; however, it quickly became an area of great interest to me.  As I was researching this topic, I found myself thinking about prisoner healthcare in a much deeper way, and asking myself a lot of questions.  How much healthcare do prisoners deserve?  Should they receive better care than law-abiding citizens on the outside?  Can prison be a place where people who are completely ignorant of basic healthy practices become educated about them?  Should it be?  What do the quantity and nature of healthcare services we provide to prisoners say about us as a society?

In Germany, healthcare rights for prisoners are guaranteed under the federal government’s Prison Code (Strafvollzugsgesetz – abbreviated in German as StVollzG).  Several German states (Länder) also have their own prison codes guaranteeing similar, if not additional, healthcare rights for prisoners.

The Strafvollzugsgesetz includes general health care provisions that apply to all prisoners, as well as additional provisions that apply expressly to female inmates.  German correctional facilities must to provide physical and emotional healthcare services to prisoners, who are legally obligated to act in accordance with their best health-related interests. (StVollzG § 56)  Periodic medical exams and cancer screenings are required by law, as is medical treatment for illnesses.  (StVollzG § 57)  Medical treatment is defined as the provision of services which are necessary to diagnose and treat illness, prevent an illness’s progression, and relieve suffering.  (StVollzG § 59)  If the prison’s medical facilities cannot provide sufficient treatment for an inmate’s medical needs, then the inmate has the legal right to be treated at a facility outside the prison.  (StVollzG § 65)

Pregnant inmates also have the right to certain medical services under the Strafvollzugsgesetz: pregnancy testing, prenatal care, medication, and care from a doctor and/or a midwife during labor and delivery.  (StVollzG §§ 76-77)  Absent any special circumstances, a female inmate must be transported outside of the prison facility to give birth.  (StVollzG § 76)

This information represents just the start of my research on this topic.  However, I am already impressed by the thorough description of prisoner healthcare access rights in Germany’s federal statutory law.  As my research progresses, I will seek to compare the legal guarantees for prisoner healthcare in Germany to those in the United States.  I have to admit that, based on my initial research, I am not confident that American prisoners enjoy nearly the same rights and access to the healthcare services that are mandated by law for German prisoners.  This is especially true for female inmates, on whom I intend to focus my future research in this area. 

Charges for Prison Phone Calls

News from Peter Wagner, Executive Director, Prison Policy Initiative:

The New York Times cited Prison Policy Initiative's new report, "The Price To Call Home: State-Sanctioned Monopolization in the Prison Phone Industry," in a September 23d editorial, noting that many telephone companies "charge inmates spectacularly high rates that can force their families to choose between keeping in touch with a relative behind bars and, in some cases, putting food on the table." It called on the FCC to regulate the prison telephone industry. The report was also cited in a letter from Energy and Commerce Committee Ranking Member Henry A. Waxman and Rep. Bobby L. Rush to the FCC requesting action on the high costs of phone calls between incarcerated individuals and their families.

A corporate accountability public interest group, Sum Of Us, has also created a page for submitting comments to the FCC, which is currently accepting comments on new regulations that would limit what phone companies could charge inmates' families for calls.

Solitary Confinement: New York's Hidden Problem

Professor Michael B. Mushlin's latest thought-provoking article from The New York Law Journal is available at: http://www.newyorklawjournal.com/PubArticleFriendlyNY.jsp?id=1202570044326#[9/4/2012_2:05:28_PM] 

Georgia State University Prison Initiative

An interesting project has been posted on Kickstarter (a funding platform for independent projects): One Nation, Behind Bars: Ed Solutions for Mass Incarceration. A Georgia State film student is looking to raise another $1200 by midnight tomorrow to fund his senior thesis project, described as a

quality student produced, directed, and edited 45-minute to 1-hour documentary film [that] will investigate and discuss the societal advantages and ever-growing need for education programs in the U.S. Prison System ... by focusing on The Georgia State University Prison Initiative, a service-learning project that brings together 15 GSU students ... and 15 volunteer inmates at Philips State Prison just outside of Atlanta in order to study literature, discuss contemporary societal issues, and increase inmate and student literary and social competency.

Just like PBS, there are rewards for contributing so, if you're interested and have a few bucks to share .... 

A Case for Labor Day: McGarry v. Pallito

In an August 10 opinion, the Second Circuit allowed a case based on the 13th Amendment right to be free from involuntary servitude to proceed.  Finbar McGarry, a Vermont resident, was arrested and detained pending trial in the Chittenden Regional Correctional Facility from December 2008 until June 2009. While there, he was housed in House 1 where all inmates, including pretrial detainees, are required to work. Despite his objections, McGarry was assigned to work in the prison laundry. He was told that refusal to work would result in administrative segregation. Defendants justified the requirement on the ground that it furthered a legitimate penealogical interest in “educating offenders about real world responsibilities.” McGarry subsequently filed several unsuccessful grievances complaining about the long hours he had to work and the intolerable conditions, including handling soiled clothing without gloves or the ability to clean his hands. He also alleged that working in the laundry resulted in a painful staph infection.

The appellate court reversed the district court judgment dismissing McGarry's pro se complaint. It found that his complaint had, in fact, presented a plausible 13th Amendment claim. It pointed out that "[t]he Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery." Furthermore, the exception for those “duly convicted” did not apply and, although individuals may be detained before they have been convicted and the "liberties and privileges" of pretrial detainees may curtailed, "such conditions may not violate the Constitution." In United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court stated that involuntary servitude was “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” Indeed, in federal facilities “[a] pretrial inmate may not be required to work in any assignment or area other than housekeeping tasks in the inmates’ own cell and in the community living area, unless the pretrial inmate has signed a waiver of his or her right not to work.” 28 C.F.R. § 545.23(b). The defendants principle argument, that allowing McGarry's claim to proceed “would demean and trivialize the deep significance of the Thirteenth Amendment in the history of this country,” was rejected by the Second Circuit. Rather, it found that McGarry's allegations were supported by "well-pleaded facts" and, therefore, his claim of "'threat of physical restraint or physical injury' within the meaning of Kozminski" was plausible and should be allowed to move forward.
 

Juvenile offenders and life without parole

Available on SSRN: "The Paradox of Graham v. Florida and the Juvenile Justice System" by federal district court law clerk (C.D. Cal.) Aaron Sussman, forthcoming in the Vermont Law Review. The author analyzes a series of Supreme Court decisions on sentences for juveniles that foreclose any possibility of parole, including Graham v. Florida (2010) as well as the recent Miller v. Alabama/Jackson v. Hobbs decision.  He finds "a sharp disjuncture emerges between the Supreme Court’s language and the realities of the criminal justice system, a disjuncture that, in the context of Graham and its progeny, helps preserve the perception of legitimacy but may inhibit even small steps toward improving the conditions and rehabilitative potential of the juvenile justice system."

A Variety of Views on Miller v. Alabama

Children in Prison for Life, New York Times

‘Elite’ Supreme Court Sides with Science and Juveniles, Jonathan Zimmerman, Christian Science Monitor

Justice for Juvenile Criminals, Denver Post

Justices Should Use More Than Their Gut and “Brain Science” to Decide a Case, Richard A. Posner, Slate

Mandatory Life Without the Possibility of Parole for Juveniles Is Unconstitutional, Joy Moses, Center for American Progress

The Roberts Court's Liberal Turn on Juvenile Justice, David S. Tanenhaus, New York Times

Shall We Lock Up a Child and Throw Away the Key?, George F. Will, Washington Post

The Supreme Court Gives (Some) Juvenile Lifers a Second Chance, Liliana Segura, Nation

Supreme Court Ruling on Juveniles is a Partial Victory, James Allen Fox, Boston Globe

Supreme Court Ruling on Life Sentences for Young Criminals, Christian Science Monitor

The U.S. Supreme Court Gives Teenage Murderers a Chance, Marni Soupcoff, National Post (Canada)

Mandatory Life Sentences for Juveniles

Today the Supreme Court handed down a 5-4 decision in the combined cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647). The majority opinion, written by Justice Kagen and joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor, stated that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 'cruel and unusual punishments.'"  See reports from Jurist, The New York Times, the Chicago Tribune, CNN Justice, Human Rights Watch, and the San Francisco Chronicle.

Felony Disenfranchisement

The Sentencing Project recently published Felony Disenfranchisement: An Annotated Bibliography (March 2012).  The document covers the past twenty years of disenfranchisement studies and analysis which, it is noted "examine disenfranchisement from a variety of perspectives – law, social science, history, and journalism [and] provide new estimates of the statistical impact of disenfranchisement, assess legal and moral perspectives on the policy, and place the issue in a comparative international context."  Links are provided to a number of the articles cited in the online version.  The information for the bibliography was compiled by Benjamin Bronstein, Jerome Pierce, and Achilles Sangster II.  Marc Mauer, Executive Director of The Sentencing Project, was the editor.

“Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences”

On June 19, 2012, Professor Michael B. Mushlin submitted the following testimony in the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights (Chairman: The Honorable Dick Durbin, Ranking Member: The Honorable Lindsey Graham):

Thank you for holding this important hearing and inviting testimony. My name is Michael B. Mushlin. I am a Professor of Law at Pace Law School in White Plains, New York. I am the author of Rights of Prisoners,¹ a four volume treatise, and a member of the American Bar Association’s Task Force on the Legal Status of Prisoners. I am also a co-chair of the American Bar Association, Subcommittee on Implementation of the ABA Resolution on Prison Oversight,² and have served as chair of the Committee on Correction of the New York City Bar Association, the Correctional Association of New York and the Osborne Association, an organization that provides training and support programs for people in jail and prison or who are being diverted from imprisonment. Currently, I am a vice chair of the Correctional Association of New York, a 168 year old organization endowed by New York law with the authority to visit New York State Prisons with the responsibility to report on their condition to the New York state legislature. With colleagues, including Prof. Michele Deitch of the University of Texas, I participated in the organization of two national conferences on prison reform, the first Prison ReformRevisited: The Unfinished Agenda held at Pace Law School and the second, OpeningUp a Closed World: What Constitutes Effective Prison Oversight held at the University of Texas. Both conferences drew together professionals from all segments of the criminal justice and corrections fields to discuss improvement to the operation and oversight of the American prison system. For seven years, I was staff counsel and then the Project Director of the Prisoners’ Rights Project of the Legal Aid Society. I also served as staff counsel with Harlem Assertion of Rights Inc., and was the Associate Director of the Children’s Rights Project of the American Civil Liberties Union. For the 2012/13 academic year, I will be a Visiting Professor of Law at Brooklyn Law School.

I first confronted conditions in solitary confinement units over thirty years ago when I served as trial counsel in a federal civil rights case involving Unit 14, the solitary confinement unit at Clinton prison in upstate New York close to the Canadian border. What I saw there was deeply disturbing. Inmates were locked for 23 hours each day into small windowless cages for months and years on end. No programs or activities were provided to them. Without access to any meaningful activity, they were separated from one another spending almost all of their time entirely by themselves. During that one precious hour per day when a Unit 14 inmate could leave his cell there was only one place to go: a small space directly behind his cell called a “tiger cage.” The tiger cage was a small empty space with a barren floor surrounded on all sides by high concrete walls which were not covered by a roof. An inmate could walk only a few steps in one direction before turning. If he looked up he could glimpse a bit of the sky but nothing else of the outside world.³

Working on that case I witnessed firsthand the awful consequences of subjecting human beings to solitary confinement. I will never forget looking into the eyes of those inmates struggling to maintain a foothold on reality and sanity. Afterwards, when visiting other solitary confinement units, no matter where, I see that same pained, desperate stare. I have seen it so often, and in so many different places, that I have come to recognize it instantly as the gaze of a tortured person.

Aging prisoners

The ACLU has just released a compelling report, At America's Expense: The Mass Incarceration of the Elderly.  Some of the facts:

• In the U.S., 246,600 prisoners are 50 or older;
• The annual cost of incarcerating someone 50 or older is $68,270 a year - twice as much as an average prisoner;
• Even if released elderly prisoners rely on the government for healthcare and other aid, states will still save at least $28,362 a year for each prisoner; and
• Risk of recidivism is minimal as evidenced by a study of N.Y. prisoners which found that the 3-year recidivism rate for those released at ages 50-64 was 7%, and only 4% for those 65 and older.  

Welcome to the readers of Prison Law Blog

This blog will be taking up where the well-respected Prison Law Blog left off and will endeavor to add as much to the conversation.  My goal is to provide information on developments in prisoners' rights law, as well as a forum for discussing the constitutional rights protecting, or failing to protect, the incarcerated.  Those in America’s prisons and jails have the right to be free from "cruel and unusual punishment" and, as Justice Thurgood Marshal stated:

The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Ruiz v. Brown

The amended complaint in the federal class action lawsuit filed by the Center for Constituional Rights and several other advocate and legal organizations on behalf of prisoners at Pelican Bay State Prison who have spent more than 10 years in solitary confinement, some more than 25 years, is available on the CCR website.  Other CCR prisoners' rights cases have included: Al-Jundi v. Estate of Oswald, filed in 1974 by survivors of the Attica uprising, Byrd v. Goord, challenging New York DOCS collect-call only telephone policy, and NLG and CCR v. Johnson, challenging the Virigina DOC decision placing Jailhouse Lawyer's Handbook on a "disapproved publications list."

Arizona's deadly prisons

Bob Ortega, senior investigative reporter at the Arizona Republic, has recently written a series of articles on "a prison system that houses inmates under brutal conditions that can foster self-harm, allows deadly drugs to flow in from the outside, leaves inmates to die from treatable medical conditions and fails to protect inmates from prison predators."  The individual articles cover the high number of deaths, including suicides, the struggle to control the availability of drugs in prison, the inadequate medical care prisoners receive, and the deaths that result from increasing inmate-on-inmate violence.    

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