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U.S. Department of State Initial Report of the United States of America to the UN Committee Against Torture Submitted by the United States of America to the Committee Against Torture, October 15, 1999

PART II. IMPLEMENTATION OF SPECIFIC ARTICLES Articles 1 and 2: Definition and Prohibition A. Definition of Torture U.S. Understandings. In order to clarify the meaning of "torture" and to delineate the scope of application of the Convention with the greater precision required under U.S. domestic law, the United States conditioned its ratification upon several understandings related to Article 1. The full text of these understandings is at Annex I. In essence, they provide that: The intentional infliction of "mental" pain and suffering is appropriately included in the definition of "torture" to reflect the increasing and deplorable use by States of various psychological forms of torture and ill-treatment such as mock executions, sensory deprivations, use of drugs, and confinement to mental hospitals. As all legal systems recognize, however, assessment of mental pain and suffering can be a very subjective undertaking. There was some concern within the U.S. criminal justice community that in this respect the Convention's definition regrettably fell short of the constitutionally required precision for defining criminal offenses. To provide the requisite clarity for purposes of domestic law, the United States therefore conditioned its ratification upon an understanding that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality. b. For similar reasons of clarity and specificity, United States adherence was conditioned on the understanding that the definition of "torture" in Article 1 is intended to apply "only to acts directed against persons in the offender's custody or physical control" in order to clarify the relationship of the Convention to normal military and law enforcement operations. c. A further understanding was intended to make clear that the term "sanctions" in Article 1 includes judicially-imposed sanctions and other enforcement actions authorized by U.S. law or by judicial interpretation of such law. However, as this understanding explicitly noted, a State Party could not through the imposition of domestically lawful "official sanctions" defeat the object and purpose of the Convention to prohibit torture. d. The United States further stated its view that the term "acquiescence," as used in Article 1, requires that a "public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity." The purpose of this condition was to make it clear that both actual knowledge and "willful blindness" fall within the definition of "acquiescence" in Article 1. e. Finally, in order to guard against the improper application of the Convention to legitimate law enforcement actions, the United States stated its understanding that noncompliance with applicable legal procedural standards (such as the Miranda warnings referred to above) does not per se constitute "torture." B. Prohibition of Torture Every act of torture within the meaning of the Convention is illegal under existing federal and state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes. Such prosecutions do in fact occur in appropriate circumstances. Torture cannot be justified by exceptional circumstances, nor can it be excused on the basis of an order from a superior officer. U.S. law recognizes and protects the fundamental right of everyone to life, liberty and inviolability of his or her person. Every system of criminal law in the United States clearly and categorically prohibits acts of violence against the person, whether physical or mental, which would constitute an act of torture within the meaning of the Convention. Such acts may be prosecuted, for example, as assault, battery or mayhem in cases of physical injury; as homicide, murder or manslaughter when a killing results; as kidnapping, false imprisonment or abduction where an unlawful detention is concerned; as rape, sodomy, or molestation; or as part of an attempt or a conspiracy, an act of racketeering, or a criminal violation of an individual's civil rights. While the specific legal nomenclature and definitions vary from jurisdiction to jurisdiction, it is clear that any act of torture falling within the Convention would in fact be criminally prosecutable in every jurisdiction within the United States. In some jurisdictions, state law currently recognizes a specific crime of "murder by torture" as a statutorily enumerated type of first-degree murder ("intentional homicide") involving willful, deliberate and premeditated infliction of pain and suffering and subject to especially severe penalties ("malice aforethought"). See, e.g., Idaho I.C. sec. 18-4001 and sec. 18-4003; Nevada N.R.S. sec. 200.033; New York Penal sec. 125.27; South Carolina Code 1976 sec. 16-3-20; Tennessee T.C.A. sec. 39-13-204. In few state or local jurisdictions, however, is "torture" itself a separate crime. But see California Penal Code Title 8 sec. 206 (prohibiting torture); Conn. G.S.A. sec. 53-20 (cruelty to persons); Alabama Stats. sec. 13A-6-65.1 ("sexual torture" as a Class A felony). Eighth Amendment. Perhaps the strongest and clearest protection against torture is afforded by the Eighth Amendment to the U.S. Constitution, which prohibits "cruel and unusual punishments." This prohibition is directly applicable to actions of the federal government and, through the Fourteenth Amendment, to actions of the states and localities. Robinson v. California, 370 U.S. 660 (1962). It encompasses uncivilized or inhuman punishments, punishments which fail to comport with human dignity, and punishments which include undue physical suffering. Furman v. Georgia, 408 U.S. 238 (1972). It covers punishments which, although not physically "barbarous," involve the unnecessary and wanton infliction of pain, or are "grossly disproportionate" to the severity of the crime. Hence, it includes punishments which are totally without penological justification, Rhodes v. Chapman, 452 U.S. 337 (1981), as well as prison work requirements which compel inmates to perform physical labor which is beyond their strength, which endangers their lives, or which causes undue pain, Ray v. Mabry, 556 F.2d 881 (8th Cir. 1977). Punishment at "hard labor" is no longer available as a criminal sanction under federal law, having been held many years ago to constitute excessive and grossly disproportionate punishment. Weems v. United States, 217 U.S. 349 (1910). As custodians of large numbers of convicted criminals, including many dangerous individuals, prison officials may use reasonable force for purposes of self-defense, the defense of third persons, enforcement of prison rules and regulations, and prevention of escape and crime. However, the Eighth Amendment forbids public officials from deliberately inflicting pain on prisoners in an unnecessary and wanton manner, such as through beatings. In Hudson v. McMillian, 503 U.S. 1 (1992), prison officials had handcuffed and shackled a prisoner and beaten him after an argument; the inmate received bruises, swelling, loosened teeth and a cracked dental plate. The U.S. Supreme Court found that this ill-treatment constituted excessive force, in violation of the Eighth Amendment, even though the prisoner's injuries were not serious. The Court also found culpable a supervisor who observed, but did not participate in, the beating, on the ground that he should have acted to protect the victim. In Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), prison officials were found to have committed unprovoked acts of brutality when they recaptured the prison after bloody rioting by inmates; a federal appellate court enjoined state officials from future acts of brutality and torture. The Eighth Amendment has also been interpreted to apply to (1) inadequate conditions of confinement resulting from an official's "deliberate indifference" to identifiable human needs (such as continuous deprivation of food, warmth, and exercise), Wilson v. Seiter, 501 U.S. 294 (1991), and possibly overcrowding of facilities, Rhodes v. Chapman, 452 U.S. 337 (1981), (2) excessive use of force by prison officials, as well as failure to protect inmates from physical attacks by other inmates, and inadequate training or screening of guards, Whitley v. Albers, 475 U.S. 312 (1986) and (3) inadequate provision of medical, dental and psychiatric care, including an official's deliberate indifference to an inmate's serious medical needs which exceeds simple medical malpractice, Estelle v. Gamble, 429 U.S. 97 (1976), and Farmer v. Brennan, 511 U.S. 825 (1993)(prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement). Because the Eighth Amendment incorporates contemporary standards of decency, its interpretation continues to evolve. In Helling v. McKinney, 509 U.S. 25 (1992), for example, the U.S. Supreme Court held that the health risks posed by involuntary exposure of prison inmates to environmental tobacco smoke can form the basis of a claim under the Eighth Amendment. As stated earlier in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200 (1989), [W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being.... The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs - e.g., food, clothing, shelter, medical care, and reasonable shelter,--it transgresses the substantive limits on state action set by the Eighth Amendment .... As a technical legal matter, the protections of the Eighth Amendment apply only to "punishments," that is, to the treatment of individuals who have been convicted of a crime and are therefore in the custody of the government. Ingraham v. Wright, 430 U.S. 651 (1977); United States v. Lovett, 328 U.S. 303 (1946). Military Justice System. The Eighth Amendment applies with equal force to the military justice system. Moreover, Article 55 of the Uniform Code of Military Justice ("UCMJ") specifically prohibits punishment by flogging, branding, marking or tattooing on the body, or any other cruel or unusual punishment. The article also prohibits the use of restraints known as "irons," whether single or double, except for the purpose of safe custody. Indeed, a commanding officer who orders such punishment would be acting outside the scope of his or her position and would be individually liable for the intentional infliction of bodily and emotional harm. In addition, Article 93 of the UCMJ makes it a criminal offense for a military member to engage in acts constituting cruelty and maltreatment (including sexual harassment) toward a subordinate. Under the UCMJ, an individual may be apprehended ("arrested") only upon reasonable belief that an offense has been committed and that the person apprehended has committed it. Permissible grounds for, and conditions of, pretrial confinement are also spelled out in the UCMJ, including the right of the person confined to be notified of the nature of the offense charged, to remain silent, to retain civilian counsel at no expense to the government, to military counsel at no cost, and to be familiar with the procedures for review of pretrial confinement. Pretrial confinement must be affirmed by the commander within 72 hours, and a pretrial confinement hearing is required to be conducted by a neutral and detached magistrate who may order the release of the person being confined. Once charges against the detainee are referred to trial by court-martial, the appropriateness of pre-trial confinement may again be reviewed by the military judge. The Department of Defense has adopted the "Common Rule" for human subjects of medical research referred to below. See 32 C.F.R. Part 219. Other Constitutional Provisions. Because the Eighth Amendment by its terms applies to "punishments," courts have looked to other constitutional provisions, in particular the Fourth Amendment's protections against unreasonable searches and seizures and the due process requirements of the Fifth and Fourteenth Amendments, to preclude the abuse or ill-treatment of individuals in other custodial circumstances. These constitutional protections are applicable and enforced at all levels of government. The Fourth Amendment provides that all persons shall be free from unreasonable searches and seizures and that "no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourteenth Amendment provides that "[n]o State [shall] deprive any person of life, liberty or property without due process of law." The Fifth Amendment applies to the Federal Government and similarly provides that no person shall "be deprived of life, liberty, or property without due process of law." The principle of due process provides a broad and flexible measure of protection against abuse of state power. The due process clauses of the Fifth and Fourteenth Amendments may reach actions that are technically outside Eighth Amendment purview, such as excessive use of force by law enforcement personnel during the investigative or pretrial stages. Denial of pretrial release by itself may implicate substantive and procedural due process concerns. United States v. Salerno, 481 U.S. 739 (1987). Although the Eighth Amendment does not apply to "pretrial detainees," i.e., persons lawfully arrested but not yet convicted and sentenced, the courts have ruled that such individuals enjoy equivalent protection under the Fourteenth Amendment with regard to conditions of detention. "[S]tates may not impose on pretrial detainees conditions that would violate a convicted person's Eighth Amendment rights." Hamm v. DeKalb County, 774 F.2d 1567, 1573-74 (11th Cir. 1985), cert. denied 475 U.S. 1096 (1986). See also Graham v. Connor, 490 U.S. 386 (1989)(the Due Process Clause of the Fourteenth Amendment protects a pretrial detainee from the use of force that amounts to punishment); Bell v. Wolfish, 441 U.S. 520 (1979);Ingraham v. Wright, 430 U.S. 651 (1977). In Lancaster v. Monroe County, Ala., 116 F.3d 1419 (11th Cir. 1997), a federal court of appeal stated that the minimum standard of medical care owed to a pretrial detainee under the Fourteenth Amendment is the same as that required under the Eighth Amendment for a convicted prisoner. The Fifth Amendment safeguards the right of an individual not to be compelled to testify against himself or herself. The Fourteenth Amendment's Due Process Clause protects against tortious acts employed with the intention of compelling confessions through fear of hurt, ill-treatment or exhaustion. Adamson v. California, 332 U.S. 46 (1947). The law also directly regulates the official use of force. Prison guards, sheriffs, police, and other state officials who abuse their power through the excessive use of force may be punished under the criminal provisions of the federal Civil Rights Acts, 18 U.S.C. sec. 241 and sec. 242. Where law enforcement officials are involved in the excessive use of force, individually or in a conspiracy, victims are also protected with respect to the rights secured by the Fourth, Fifth, Eighth and Fourteenth Amendments, depending on the circumstances and the status of the victims. State Constitutions. Equal or additional protections are afforded under state constitutional law. For example, the Oregon Constitution provides that "no person arrested, or confined to jail, shall be treated with unnecessary rigor." Oreg. Const. Art. I, sec. 13. This provision has been interpreted to include physically brutal treatment and to extend to needlessly harsh, degrading or dehumanizing treatment. It prohibits assaults by police officers and intimate touching by prison guards of the opposite sex, and it requires custodial officials to provide an environment that does not unnecessarily subject inmates to excessive health hazards. A majority of state constitutions contain search and seizure provisions substantively identical to the Fourth Amendment, and many states (though not all) have adopted the "exclusionary rule" in state constitutional law independent of the federal rule. See, e.g., State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988); State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986). C. Specific Procedural Protections In addition to the prohibition against cruel and unusual punishment and the protections of the Due Process Clause, the U.S. criminal justice system contains a number of specific procedural mechanisms which, taken together, offer strong additional protections against the occurrence of torture and remedial opportunities in the event that it nonetheless occurs. At the risk of over-simplifying a complex body of law and procedure, these protections may be summarized as follows. Habeas Corpus. Of principal significance is the constitutionally recognized right of habeas corpus, which affords individuals in custody the right to an immediate judicial hearing on the legality and the conditions of their confinement and an order directing the detaining official to release them, if appropriate. In particular, a person in custody who has not been formally arrested and provided a preliminary hearing as required by law may seek immediate release by filing an application for a writ of habeas corpus in state or federal court. The writ can also be used to seek review of a final conviction, to challenge execution of a sentence, or to contest the legality of an order of confinement not resulting from a criminal sentence, for example a commitment to custody for mental incompetence or for extradition reasons. This right ensures, for example, that suspects in the U.S. may not be held "incommunicado." Arrest and Detention. U.S. law imposes strict rules regarding arrest and detention of suspects by agents of the state and effectively protects individuals against arbitrary arrest and detention. A person may ordinarily be detained only for a brief period unless he or she has been formally arrested or charged with a crime by complaint or indictment, or refuses to obey a lawful court order (but only so long as he or she refuses to obey). Under the Fourth Amendment, persons may be arrested only if there is "probable cause" to believe they have committed a crime. A judicial officer must authorize such detention, either by issuing a warrant for the person's arrest or, when the arrest has taken place without a warrant, by approving the arrest within a short time (i.e., within 48 hours) after it occurs. State law also generally requires an arrest warrant except when the arresting authorities observe a crime in progress. In this respect, U.S. law does not permit "preventive detention" solely for purposes of investigation, as it is practiced in many countries. Officers must have a particularized and objective basis for suspecting an individual of criminal activity before they may detain him or her for even a limited purpose or duration (such as a "stop and frisk"). Moreover, the Fourth Amendment also protects against physical ill-treatment at the stage of arrest or investigatory stop. An objectively unreasonable use of force is not permissible. Graham v. Connor, 490 U.S. 386 (1989). In addition, the judicial officer must authorize the continued detention of the arrestee following a hearing at which it is determined that there is sufficient reason to believe the person will flee from justice or pose a threat to the public if released. These constitutional requirements are binding on all levels of government within the United States. Additionally, states through their separate laws guarantee that individuals will not be arbitrarily arrested and detained by state authorities and also require prompt notification of charges and a speedy trial. Right to Be Informed. Persons under arrest must at a minimum be informed of the offense with which they are charged and given an opportunity to see the arrest warrant as soon as is practicable. In the case of a warrantless arrest, the arresting authority must inform the arrestee of the basis for the arrest. State and federal law generally impose similar requirements in this regard. Right to Counsel. The right to counsel in criminal cases is guaranteed by the Sixth Amendment to the U.S. Constitution. This right is binding on the states via the Fourteenth Amendment. In addition, the right is also guaranteed by similar or analogous language in every state constitution (except that of Virginia). The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." While primarily reflecting the need for legal representation at trial, this right has been interpreted to apply whenever adversarial judicial proceedings have begun, whether or not the individual is in custody. See Massiah v. United States, 377 U.S. 201 (1964) (government attempts deliberately to elicit confession or incriminating statements after the initiation of formal charges may interfere with the right to counsel and therefore render such statements inadmissible as evidence). The right to counsel applies at the preliminary hearing stage, at arraignment, and at the post-trial (sentencing) phase. See Coleman v. Alatan, 339 U.S. 1 (1990); Michigan v. Jackson, 475 U.S. 625 (1986); and Mempa v. Rhay, 389 U.S. 128 (1967). It can also apply to custodial interrogations. In Escobedo v. Illinois, 378 U.S. 478 (1964), the defendant's confession was excluded ("suppressed") because the police had violated his Sixth Amendment rights by telling him incorrectly at the time of interrogation that his attorney did not want to see him. Inability to afford representation cannot deprive an accused of his or her right to counsel. In Gideon v. Wainwright, 372 U.S. 335 (1962), the U.S. Supreme Court found that the Sixth Amendment mandated state-paid counsel for the trial of indigent felony defendants. The right was extended to all cases including misdemeanors in which imprisonment is imposed. Scott v. Illinois, 440 U.S. 367 (1979); Argersinger v. Hamlin, 407 U.S. 25 (1972). Hence, no state can sentence an indigent convicted defendant to a term of imprisonment unless it has afforded him or her the right to assistance of appointed counsel. Constitutional notions of due process also require provision of counsel in appeals as of right. Evitts v. Lucey, 469 U.S. 387 (1985). The conceptually separate Fifth Amendment right to counsel is based on the privilege against self-incrimination as it applies during custodial law enforcement interrogation and can apply even when the Sixth Amendment does not. See Miranda v. Arizona, 384 U.S. 436 (1966). In some instances, state law provides, or has been interpreted to provide, defendants with even greater rights concerning assistance of counsel than the protections derived from the federal Constitution. Both Hawaii and Louisiana, for instance, provide indigents more extensive entitlement to state-appointed attorneys than is required by the U.S. Constitution under Gideon v. Wainwright, 372 U.S. 335 (1963) and Argersinger v. Hamlin, 407 U.S. 25 (1972). In New Jersey, the state Supreme Court has held that the consent of defense counsel is required before the prosecutor may initiate conversations with the defendant after indictment and before arraignment. See State v. Sanchez, 129 N.J. 261, 609 A.2d 400 (1992). New York law prohibits uncounselled waivers of Sixth Amendment rights, People v. West, 81 N.Y.2d 370, 599 N.S.S.2d 484 (1993). The California state Constitution extends the right to counsel to pre-indictment line-ups. People v. Bustamonte, 30 Cal.3d 88, 177 Cal. Rptr. 576 (1981). Custodial Interrogation. U.S. law provides several protections against physical and mental compulsion, threats and inducements of individuals in custody. Under the Fifth Amendment's privilege against compelled self-incrimination and the rule imposed by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), the police must inform the individual that he or she has the right to remain silent, that any statements he or she makes can be used against him or her in court, that he or she has the right to consult a lawyer and to have the lawyer present during interrogation, and that if he or she cannot afford a lawyer one will be appointed to represent him or her prior to questioning. These rights (commonly called "Miranda rights") ordinarily attach when an individual is first subjected to custodial interrogation, even if it is in respect of a minor offense. Initial Appearance. Every detainee must be brought promptly before a judicial officer for an initial appearance, even when the arrest has been made pursuant to a duly issued warrant based on a showing of probable cause. Persons arrested without a warrant must be brought before a magistrate for a finding of probable cause within a reasonable time. Although "reasonable time" is not specifically defined, the U.S. Supreme Court has held that it generally cannot be more than 48 hours. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Some states apply more stringent standards to bar detention for even that length of time. At the initial appearance, the accused is informed of the charges, of the right to remain silent and the consequences of choosing to make a statement, the right to request assistance of counsel, and of the general circumstances under which one can obtain pretrial release (e.g., bail). A delay in the initial appearance may be a factor in assessing the voluntariness of any inculpatory statement made by the accused, and hence its admissibility. See McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957). Exclusionary Rule. Protection against self-incrimination, guaranteed under the Fifth Amendment in federal proceedings (and through the 14th Amendment in state and local proceedings), operates to deter police misconduct by ordinarily preventing the government from using the improperly obtained statement against the individual concerned. The exclusionary rule also operates with respect to violations of the Fourth Amendment (e.g., with respect to physical or bodily evidence) and the Sixth Amendment (e.g., right to counsel). As indicated above, in many instances, state law independently provides for exclusion of illegally obtained evidence. Pre-trial Release. Conditional release of the accused is the norm in the U.S. criminal justice system. While there is no constitutional right to bail (the Eighth Amendment prohibits "excessive bail"), the general rule in both the federal and the state judicial systems is that persons will not be detained in custody unless the judicial officer cannot be assured that there are conditions of release which will reasonably guarantee the safety of the public and the appearance of the individual at the criminal trial. In the federal system, the 1966 Bail Reform Act, 18 U.S.C. sec. 3141 et seq., last amended in 1984, provides that (except for particularly dangerous persons or persons likely to flee if not detained), defendants awaiting trial may be released on their own "personal recognizance," upon the execution of an unsecured appearance bond, or upon other conditions set by the court. State procedures are similar; various states take into account different factors in setting bail, and some states have no statutory scheme. Speedy Trial. The Sixth Amendment guarantees all accused individuals a right to a "speedy and public trial." In the federal system, this right is implemented by the Speedy Trial Act of 1974, codified at 18 U.S.C. sec. 3161-3174 (last amended in 1984). The right to a speedy and public trial applies to the states under the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213 (1967), and many states have adopted statutes similar to the federal one. At trial itself, of course, defendants enjoy a number of important protections, including the right to be tried in their own presence and to defend in person, to be represented by counsel, to confront the witnesses against him or her, to the assistance of an interpreter if necessary, protection against self-incrimination, and of review of conviction and sentence by an independent court. D. Conditions of Detention As indicated above, the constitutional prohibition against cruel and unusual punishments applies not only to punishments imposed by statute or pursuant to the sentence of a court but also to prison conditions and the treatment to which a sentenced prisoner is subjected. Prisoners may not be denied an "identifiable human need such as food, warmth, or exercise." Rhodes v. Chapman, 452 U.S. 337 (1981). Prisoners must be provided "nutritionally adequate food, prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Ramos v. Lane, 639 F.2d 559 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). Prisoners must also be provided medical care, although an inadvertent failure to provide medical care does not rise to the level of a constitutional violation; rather, it is a prison official's "deliberate indifference" to a prisoner's serious illness or injury that constitutes "cruel and unusual" punishment. Estelle v. Gamble, 429 U.S. 97 (1976). Several federal statutes also provide protection to sick and disabled inmates. See, e.g., the Americans with Disabilities Act, codified at 42 U.S.C. sec 12101-12213 (which prevents discrimination against qualified individuals on the basis of their disabilities); the Rehabilitation Act of 1973, codified at 29 U.S.C. sec. 794. Prison officials have a duty to protect prisoners from violence inflicted by fellow prisoners. Hudson v. Palmer, 468 U.S. 517 (1984). Because prisons are inherently dangerous places, prison officials are responsible (liable) to victims only if they have prior knowledge of imminent harm. In Vosberg v. Solem, 845 F.2d 763 (8th Cir. 1988), plaintiffs in a South Dakota state prison complained that a number of institutional policies resulted in their being victimized, including a pass system that permitted young inmates to be alone with older inmates, "double-celling" violent and non-violent inmates, and positioning guards where they could not see inside prisoners' cells. The court concluded that the prison policies were directly responsible for the ensuing violence, thereby giving rise to a violation of the Eighth Amendment and liability for damages and attorneys fees. Finally, prisoners must not be subjected to excessive use of force. Force may be applied only "in a good faith effort to maintain or restore discipline" and may not be used "maliciously and sadistically to cause harm." Whitley v. Abers, 475 U.S. 312 (1968). In all criminal correctional systems, the policies and practices of prison staff are governed by official regulations designed, inter alia, to afford humane and dignified treatment to prisoners. The correctional community is aware of, and in general subscribes to, the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Code of Conduct for Law Enforcement Officials. Disciplinary Measures. As a matter of federal constitutional law, the concept of due process guarantees inmates certain rights regarding the imposition of disciplinary or punitive measures while in confinement. These include, for example, advance written notice, the opportunity to call witnesses and present evidence, and a written statement of reasons and findings. Wolff v. McDonnell, 418 U.S. 539 (1974); Meachum v. Fano, 427 U.S. 215 (1976); Sandin v. Conner, 515 U.S. 472 (1995). State law in some cases provides greater protection than these federal constitutional guarantees. See, e.g., McGinnis v. Stevens, 543 P.2d 1221 (Alaska 1975). Special Security Measures. Within the constraints of the Eighth Amendment, convicted prisoners may be subjected to special security measures and segregation from the general prison population only in limited circumstances necessary to maintain the safety and security of the inmates or staff of an institution. Prisoners are entitled to due process protections in the application of these measures and to a federal remedy when the conditions violate the standards of the Eighth Amendment. In November 1994, the Federal Bureau of Prisons activated the Administrative Maximum Security Institution (ADX) in Florence, Colorado. The mission of this facility is to confine the most dangerous and aggressive inmates in the Federal Prison System, along with a number of state offenders who also present extreme management problems. Such offenders have been designated to ADX Florence because their assaultive, predatory, or escape-related behavior is so serious that it would be unsafe to house them in traditional, open population institutions of lesser security. Administrative maximum security operations, however, are no more stringent than necessary to ensure the safety of the public, Bureau staff, and other inmates. To date, there has been no litigation regarding the general conditions of confinement at ADX Florence. Various non-governmental groups have expressed concerns about conditions in the so-called "super maximum security" facilities which have been established in some state systems. In January 1995, a U.S. District Court found conditions at the Security Housing Unit in the California State Department of Corrections' Pelican Bay facility to be in violation of the U.S. Constitution. The court held specifically that (1) there was unnecessary and wanton infliction of pain and use of excessive force; (2) prison officials did not provide inmates with constitutionally adequate medical and mental health care; (3) conditions of confinement in the security housing unit, which included extreme isolation and environmental deprivation, did not inflict cruel and unusual punishment on all inmates, but conditions in that unit did impose cruel and unusual punishment on mentally ill prisoners; (4) some procedures used to validate inmates as gang members and thus transfer them to the unit violated due process; and (5) a special master would be appointed. Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995). The Civil Rights Division of the Department of Justice also conducted an investigation of the Maryland State "supermax" facility and, in May 1996, issued a letter of findings to the State. The letter advised the State of several constitutional violations, including violations relating to the medical and mental health care being provided to the prisoners. The State instituted remedial measures and, as a result, in September 1998 the Civil Rights Division closed its investigation. Visitation. Access to convicted prisoners is largely regulated by state law and within the discretion of the prison administrators; there is no federal constitutional or statutory right to visit convicts in prison. However, access is provided to a prisoner's counsel or legal representative, Souza v. Travisono, 368 F. Supp. 459 (D.R.I. 1973), aff'd. 498 F.2d 1120 (1st Cir. 1974), and it is the norm for administrators to encourage family members and friends to visit inmates, subject to reasonable restrictions to ensure orderliness and security. Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989); Meachum v. Fano, 427 U.S. 215 (1976). The federal Bureau of Prisons does so by regulation, 28 C.F.R.sec. 540.40. Some state correctional systems allow conjugal visits. Access by the clergy, the press, concerned non-governmental organizations and other non-family members and the general public is likewise permissible, subject only to reasonable restrictions. Medical or Scientific Experimentation. With one limited exception discussed below, non-consensual medical experimentation is illegal in the United States. Specifically, it implicates the Fourth Amendment's proscription against unreasonable searches and seizures by the government (including seizing a person's body), the Fifth and Fourteenth Amendments' proscription against depriving one of life, liberty or property without due process, the Eighth Amendment's prohibition against the infliction of cruel and unusual punishment, and state and common law proscriptions against criminal and civil assault and battery. Seventeen Federal agencies have adopted a single, general set of regulatory provisions which prohibit, with limited exceptions, non-consensual participation by human subjects in medical research. See 45 C.F.R. Part 46. Origins of this rule lie in the National Research Act of 1974, which established a National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, whose recommendations (known as the "Belmont Report") were published in April 1979, and in the recommendations made by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research in 1981. The protective regulations implementing this "Common Rule" mandate led to consent procedures and standards for any research involving human subjects that is conducted, supported, or regulated by any of the Federal agencies. Included in these procedures is a required review of the proposed study by an Institutional Review Board composed of experts familiar with the proposed research, at least one individual who is not a scientist, and one individual who is not affiliated with the institution conducting the research. The Board must also scrutinize the informed consent documents to ensure that they meet the relevant regulatory standards. Additional protections are mandated for pregnant women, fetuses, human in vitro fertilization, children, and prisoners who participate in medical research. One limited exception to the prohibition against non-consensual medical research permits research on individuals in need of emergency therapy who cannot give legally informed consent because of their medical condition and because no legally authorized representative is available to give consent on their behalf. The Secretary of Health and Human Services waived the regulatory requirement for obtaining and documenting informed consent for this limited class of research participants, permitting an Institutional Review Board to review and approve research concerning emergency therapies and to review the waiver of informed consent. See 61 Fed. Reg. 51531-33 (October 2, 1996); see also 21 C.F.R. sec. 50.24. The waiver does not permit emergency therapy research involving pregnant women, fetuses, human in vitro fertilization, or prisoners. The federal government promotes continued attention and education in this field in a variety of ways. For example, the National Institutes of Health requires MD/PhD students in various federally supported educational programs to take a course in "Scientific Integrity and the Responsible Conduct of Research." The National Bioethics Advisory Commission, established by Executive Order No. 12975 (Oct. 3, 1995), is charged with identifying broad principles to govern the ethical conduct of research, including particularly in the management and use of genetic research, and reviewing the appropriateness of federal agency policies, guidelines and regulations relating to bioethical issues arising from research on human biology and behavior. While prisoners are generally free to consent to any regular medical or surgical procedure for the treatment of their own medical conditions, their consent must be "informed." However, prison regulations do not, as a rule, permit prisoners to participate in medical and scientific research. For example, the Federal Bureau of Prisons prohibits medical experimentation or pharmaceutical testing of any type on all inmates in the custody of the Attorney General who are assigned to the Federal Bureau of Prisons. See 28 C.F.R.sec. 512.11(c). When not otherwise prohibited by law, medical research on prisoners may be conducted in accordance with human subjects protection regulations and using special informed consent protections and procedures mandated for prisoners. See 45 C.F.R. Part 46, Subpart C. Within the broader correctional community, similar standards have been developed strictly limiting the types of research conducted in prisons, even with an inmate's consent. In its mandatory requirements for institutional accreditation, for example, the American Correctional Association stipulates that: Written policy and practice prohibit the use of inmates for medical, pharmaceutical, or cosmetic experiments. This policy does not preclude individual treatment or an inmate based on his or her need for a specific medical procedure that is not generally available. Generally, the involuntary administration of antipsychotic medication deprives an inmate of a constitutionally-deprived liberty interest and may also infringe upon the inmate's rights under state law. If the inmate has a serious mental illness, poses a threat to himself or others, and treatment is determined to be in his medical interest, however, such drugs can lawfully be administered. Washington v. Harper, 494 U.S. 210 (1990). Article 3: Non-Refoulement The United States recognizes its obligation not to "expel, return ('refouler') or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture." The Department of State and the Department of Justice are the agencies charged with duties that may implicate Article 3 obligations. The Immigration and Naturalization Service (INS), an agency within the Department of Justice, is responsible for ensuring compliance in the context of removal (formerly deportation or exclusion) of aliens illegally present in the United States, and the Department of State is responsible for ensuring compliance in the extradition context. Generally, expulsions and returns of aliens from the United States are governed by the substantive and procedural rules set forth in the Immigration and Nationality Act (INA). The process of extradition is based on bilateral extradition treaties and is governed by other federal statutes. Thus, the requirements of Article 3 implicate two separate and largely distinct bodies of domestic law. In FY 1998 approximately 171,154 aliens were removed from the United States, and 38 persons were formally extradited from the United States, and an additional 28 persons were surrendered pursuant to waivers of extradition. U.S. Understanding. Guidance for ensuring compliance with Article 3 may be found by comparing its provisions to Article 33 of the 1951 Convention relating to the Status of Refugees (Refugee Convention) and to the 1967 Protocol to the Refugee Convention, to which the United States is a party. Article 33 provides that "no Contracting Party shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion." The United States currently implements Article 33 of the Refugee Convention through the withholding of removal provision in section 241(b)(3) of the INA. That provision, as interpreted by the courts, requires that the Attorney General withhold an alien's removal to a country where it is more likely than not that an alien's life or freedom would be threatened on account of one of the five grounds mentioned above. INS v. Stevic, 467 U.S. 407 (1984). In order to clarify the meaning of "substantial grounds" in Article 3, the United States conditioned its ratification on the understanding that the phrase "where there are substantial grounds for believing that he would be in danger of being subjected to torture," means "if it is more likely than not that he would be tortured." INS and the Removal of Aliens. Removal proceedings, through which it is determined whether an alien should be removed from the U.S., are considered civil rather than criminal proceedings. Depending on the circumstances in individual cases, aliens subject to removal proceedings may be accorded a range of statutory and regulatory procedural rights, including access to legal representation, a hearing before an immigration judge, the right to appeal an adverse decision to the Board of Immigration Appeals, and the right to seek review of certain decisions in a federal court. In addition, certain classes of aliens in removal proceedings may designate the country to which they will be ordered removed. An alien may seek several types of protection from removal to a country where he or she fears harm, including asylum and withholding of removal. While these two remedies differ in procedure and effect, they both rely on a determination that the alien is at risk of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." INA Sections 208 and 241(b). It can be expected that in many cases where an alien's return to a particular country would be prohibited by Article 3, the alien might also satisfy the requirements for asylum or withholding of removal. There are, however, some important differences between asylum and withholding of removal, on the one hand, and Article 3 on the other hand. First, consistent with Article 33 of the Refugee Convention, several categories of individuals, including persecutors, persons who have committed particularly serious crimes, persons who are believed to have committed serious non-political crimes before arriving in the United States, persons who pose a security danger to the United States and certain terrorists are ineligible for asylum and withholding of removal. Immigration and Nationality Act sec. 208(b)(2)(A)(i-v) and sec. 241(b)(3)(B). Article 3 does not exclude such individuals from its scope. Second, asylum and withholding of removal are available only to aliens at risk of persecution on account of the specific characteristics enumerated by the statute. Article 3 encompasses persons who would be tortured even if the torture were not motivated by one of the protected characteristics. Third, the definition of torture does not encompass all types of harm that might qualify as persecution under the asylum and withholding laws. In this regard, the scope of the asylum and withholding laws is greater than that of Article 3. Thus, the coverage of the Convention Against Torture is different from that provided by statutory provisions for asylum and withholding of removal. Observance of Article 3 Obligations in the Removal Context. Prior to its adoption of formal regulations (see below), the INS adopted a comprehensive interim administrative process to assess the applicability of Article 3 to individual cases of aliens subject to removal. Under this process, if there were reason to believe that an alien would be tortured in a particular country after all removal proceedings had been completed and before a final order of removal was executed, the INS would consider whether Article 3 prohibited the alien's removal to that country. The INS took an inclusive approach to identifying cases to be examined under Article 3, allowing aliens to raise this issue at any point in the removal process. If an alien or his attorney or representative requested protection under Article 3 or expressed a fear of torture at any time before removal, the INS assessed the case under Article 3. In addition, the INS worked with the United Nations High Commissioner for Refugees to develop an informal process under which that agency could bring to the government's attention cases which it believed raised issues under Article 3. Specifically, under this administrative process, if the removal process were already underway when the case came to the government's attention, removal would be suspended until a determination under Article 3 was made. If the alien raised this issue at an earlier stage in the process, the INS would postpone making an Article 3 determination until after the alien had exhausted all other avenues for seeking relief from removal and had been finally ordered removed to a place where there is reason to believe he may be tortured. This approach allowed the INS to address the applicability of Article 3 to an individual case only when actually necessary to ensure compliance with the Convention. It also allowed an individual alien to pursue fully any other more extensive benefits or protections, such as asylum or withholding of removal, for which he might have been eligible. Once a final removal order had been issued in a case that might have involved obligations under Article 3, a specially trained administrative "asylum officer" conducted an interview with the alien regarding the possibility that he would be tortured if deported to the country of removal. Asylum officers receive extensive and ongoing training about country conditions and human rights practices around the world, about how to make detailed assessments of the risk of harm to an alien in a particular country, and about interviewing techniques. The results of the asylum officer interview were forwarded to the Department of State for an opportunity to comment on the applicability of Article 3 in light of the conditions in the country in question. After evaluating all the evidence collected, the INS determined whether the alien's removal to the country would violate U.S. obligations under Article 3. If it was determined that the alien could not be removed to that country consistent with Article 3, the INS exercised its existing discretionary authority to ensure that the alien was not removed there. See INA Section 103(a); 8 CFR Section 2.1. The INS remained free under Article 3, of course, to remove the alien to any country where he would not be tortured. Observance of Article 3 Obligations in the Extradition Context. Prior to its issuance of regulations on the subject (see below), the Department of State relied on the law and practice of the United States to provide authority for declining to extradite a fugitive to another State Party where there are substantial grounds to believe he would be in danger of being subjected to torture. Under U.S. law, extradition from the United States to another country can only take place pursuant to the provisions of a duly ratified extradition treaty. At present there are only three narrow exceptions to this requirement: (i) extradition to the International Tribunals for the former Yugoslavia and Rwanda; (ii) extradition of non-U.S. nationals who have committed crimes of violence against U.S. nationals in foreign countries in certain circumstances, see 18 U.S.C. sec. 3181 with note, sec. 3184; and (iii) extradition to Palau, the Marshall Islands and the Federated States of Micronesia pursuant to a legislative executive agreement. Few if any such treaties explicitly provide for denial of requests for extradition on the grounds that an individual would be in danger of being tortured. However, domestic law grants the Secretary of State discretion to decide whether to surrender a fugitive who has been found extraditable. See 18 U.S.C. sec. 3184 and sec. 3186. This is a sufficient basis for the Secretary, who is for these purposes the "competent authority" within the meaning of article 3, to satisfy herself before she orders the surrender of the fugitive that he or she will not be tortured after extradition. Some bilateral treaties also contain provisions for denial of extradition on humanitarian grounds or where there is a substantial basis for believing that the extradition request has been made for the purpose of prosecuting or punishing the person sought on account of that person's race, religion, nationality or political opinion. To comply with the Convention's requirements in the extradition context, the Department of State instituted a process for the consideration of all claims related to Article 3 in the context of the Secretary's consideration of extradition requests. Once a fugitive has been found extraditable by a United States judicial officer, an extradition decision is presented to the Secretary of State. Where the fugitive makes allegations relating to torture, appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant. Even where the fugitive has made no claims, consideration is given to the requesting country's human rights record, as set forth in the U.S. annual country conditions reports, from the perspective of Article 3. Based on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions. The Secretary's decision is a matter of executive discretion and is not subject to judicial review. Legislation. On October 21, 1998, President Clinton signed into law a bill which required "[n]ot later than 120 days after the date of enactment of this Act, the heads of appropriate agencies [to] prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention." Section 2242, Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-277 (October 21, 1998). Accordingly, the INS and the Department of State each promulgated regulations to implement Article 3, consistent with U.S. reservations, understanding and declarations, in their respective areas of responsibility. INS Regulations. On February 19, 1999 the Department of Justice published an interim rule prescribing regulations that implement formally, as directed by the Congress, U.S. obligations under the Convention Against Torture. The interim rule became effective on March 22, 1999. (A full text of the rule is at Annex IV.) Under the regulations, at 8 C.F.R. Parts 3, 103, 208, 235, 238, 240, 241 and 253, claims for Article 3 protection generally are determined by Immigration Judges (IJs) of the Executive Office For Immigration Review (EOIR). The regulations permit aliens to raise Article 3 claims during the course of regular immigration removal proceedings, providing the opportunity for prompt and fair consideration. IJ decisions are subject to review by the Board of Immigration Appeals, also a part of EOIR. The regulations create two types of Article 3 protection. The first is a new form of withholding of removal. The second protection is deferral of removal, a more temporary form of protection, which is to be granted to aliens who would more likely than not face torture, but who are ineligible for withholding of removal - for example, certain criminals, terrorists and persecutors. Deferral of removal is more easily and quickly terminated if the individual is no longer likely to be tortured in the country of removal. A deferral order would not alter INS authority to detain an individual subject to detention. Neither provision alters the government's ability to remove the individual to a third country where he or she would not be tortured. Both, however, would ensure compliance with the cardinal obligation of Article 3, not to return the person to the likelihood of torture. The regulations do not apply to cases in which the INS had made a final decision under the prior administrative procedures. Those already granted protection are considered to have been granted either withholding or deferral of removal, whichever is appropriate to the circumstances of the case. Persons who had been ordered removed by an IJ and who had Article 3 claims pending with INS under the prior procedures were sent notices that the interim process was ending and that they should file a motion to reopen with EOIR to seek consideration of the claim, which motions would be granted automatically. To provide a reasonable opportunity to file such a motion, the notice also provided an automatic 30-day stay of removal. Those who did not have Article 3 claims pending with INS and who had been ordered removed before the effective date of the regulations did not receive an automatic stay. However, they enjoyed a 90-day window to file a motion to reopen with EOIR. During this 90-day period, such motions were exempted from the usual requirement that a motion to reopen be supported by previously unavailable evidence. For certain persons, such as those arriving at ports of entry, those who illegally re-enter the United States after being ordered removed, and certain criminal aliens, Congress has established special, streamlined removal procedures. These special procedures operate outside the normal IJ hearing process. In these special cases, the regulations provide for screening by specially trained asylum officers of individuals who claim they would be tortured to quickly identify and adjudicate meritorious claims and to weed out clearly non-meritorious and frivolous claims. People who meet the screening standard will have their claims considered by an IJ, while people who do not will be removed expeditiously, as Congress intended. Those who pass the screening process and have their claims adjudicated by an IJ have the right to appeal a negative IJ decision to the Board of Immigration Appeals. Those who do not pass the screening process have the right to seek review by an IJ of the asylum officer's negative screening determination. Thus, even those subject to these expedited processes are able to seek reconsideration of any negative decision. Aliens who are removed as terrorists or because of certain security-related grounds are also subject to special removal procedures. Any Article 3 claim by such an alien will be considered through the administrative process by which INS issues and executes the removal order. The regulations also provide for the possibility that, in rare cases, the United States may seek a diplomatic solution to an Article 3 claim by negotiating assurances against torture from the government in question. It is anticipated that such an approach would be taken only in unusual cases. The nature and reliability of any such assurances would be carefully assessed by the Attorney General in consultation with the Secretary of State. Department of State Regulations. On February 26, 1999 the Department of State published a final rule, as directed by the Congress, issuing regulations implementing the Convention Against Torture in extradition cases. The rule became effective immediately. (A full text of the rule is at Annex V.) Under these regulations, at 22 C.F.R. Part 95, the Department of State has essentially codified its pre-existing practice, see above, for ensuring that the United States does not extradite a person to a country where it is more likely than not that he will be subjected to torture. Article 4: Torture as a Criminal Offense Throughout the United States, its territories and possessions, all acts constituting torture are criminal offenses, punishable by appropriately severe penalties. Additionally, acts constituting attempts, "complicity," "participation" and conspiracy to torture are likewise criminal offenses. No single federal statute specifically defines or prohibits torture or directly implements the central provisions of the Convention. Nonetheless, at the time of ratification, it was determined that existing state and federal law was sufficient to implement Article 4, except to reach torture occurring outside U.S. jurisdiction, as discussed below under Article 5. Where acts constituting torture under the Convention are subject to federal jurisdiction, they fall within the scope of such criminal offenses as assault, maiming, murder, manslaughter, attempt to commit murder or manslaughter, or rape. See 18 U.S.C. sec. 113, 114, 1111, 1113, 2031. Conspiracy to commit these crimes, and being an accessory after the fact, are also crimes. See 18 U.S.C. sec. 3, 371 and 1117. Where such acts are committed within the "special maritime and territorial jurisdiction" located within a state, federal law incorporates criminal defenses as defined by state law. See 18 U.S.C. sec. 7, 13. Conduct falling within the scope of the Convention will often constitute criminal violations of the federal civil rights statutes. For example, violations of 18 U.S.C. sec. 241 and 242 carry a maximum of ten years in jail or, if the victim dies, the death penalty. Section 241 penalizes conspiracies to deprive an individual of "the free exercise or enjoyment of a right of privilege secured by the Constitution or laws of the United States." Section 242 addresses willful deprivation of such rights "under color of law." It has long been recognized that these statutes apply to official misuse of authority and force. In the notorious Rodney King case, two officers of the Los Angeles Police Department were convicted of violatingsec. 242 by beating Mr. King repeatedly with batons during an arrest. Each was sentenced to 30 months' imprisonment for criminal violations of the civil rights statutes. This case began as a local prosecution of the four police officers involved in the incident -- they were acquitted of the charges after the defense convinced the jury that their conduct was not unreasonable under all the surrounding circumstances. The subsequent federal criminal prosecution was successful in convincing a federal jury that the principal actor used unreasonable force, and his supervising sergeant had permitted him to do so. See United States v. Koon, 518 U.S. 81 (1996). Even where a specific act constituting torture is not within the scope of these federal statutes, or is outside the protections afforded by the Fourth, Fifth, Eighth and Fourteenth Amendments, it will be found in violation of state criminal law. Every state criminalizes deliberate acts of bodily injury as well as abuses of authority on the part of state agents, whether as common assault and battery, homicide, rape, etc., as well as conspiracies, attempts, complicity, solicitation, etc. Twenty-two states have "official oppression" statutes, many of which are patterned after the American Law Institute's Model Penal Code section 243.1, which provides that a person acting or purporting to act in an official capacity commits a crime if he or she knowingly subjects another to arrest, detention, search, seizure, ill-treatment, dispossession, assessment, lien or other infringement of personal or property rights or denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity. The Oregon state penal code, for example, includes a specific crime of official misconduct. See also, Alaska Stat. 11.56.850 (1997)("official misconduct"); Col. Crim. Code C.R.S. 18-8-403 (1996); Georgia OCGA 45-11-3 (1997); N. Dak. Cent. Code 12.1-14-01 (1997); Oreg. Stat. 163.205(2) (1997); Tenn. Code Ann. 8-18-101 (1997). Article 5: Jurisdiction As a general matter, criminal jurisdiction under federal and state law is territorial. It encompasses crimes committed by any person within the territory of the United States (or relevant subordinate jurisdiction) regardless of the nationality or citizenship of the offender or victim. In relatively few instances, the definition of "territory" has been specifically crafted to apply to acts taking place outside U.S. geographical territory. For example, certain provisions of the federal criminal code apply within the "special maritime and territorial jurisdiction of the United States' (18U.S.C. sec.7), which includes, inter alia, vessels registered in the U.S., aircraft belonging to the U.S., and "any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States." Federal law also defines the "special aircraft jurisdiction of the United States" to include extraterritorial offenses against aircraft in specified instances. See 49 U.S.C. sec. 46501(2). For instance, U.S. criminal jurisdiction extends beyond the territory of the United States to the following conduct: -- criminal acts which occur on a vessel belonging to a U.S. individual or corporation located on the high seas. 18 U.S.C. sec. 7(1). -- criminal acts which occur on an aircraft belonging to a U.S. individual or corporation flying over the high seas. 18 U.S.C. sec. 7(5). -- criminal acts performed by or against a U.S. national outside the jurisdiction of any country. 18 U.S.C. sec. 7(7). -- criminal acts which occur on any foreign vessel with a scheduled departure or arrival in the United States and the criminal act is performed by or against a U.S. national. 18 U.S.C.sec. 7(8). -- criminal acts performed on an aircraft with its next scheduled destination or last place of departure in the United States, if it next lands in the United States. 49 U.S.C.sec. 46501(2)(D)(i). -- criminal acts performed on an aircraft leased (without a crew) to a U.S. lessee with its principle place of business in the United States. 49 U.S.C.sec. 46501(2)(E). These provisions meet the obligation of the United States under Article 5 to establish jurisdiction over acts of torture when committed "in any territory under its jurisdiction or on board a ship or aircraft registered in" the United States. Extraterritoriality. At the time the United States signed the Convention Against Torture, neither federal nor state law was sufficiently far-reaching to satisfy the additional requirements of Article 5 concerning jurisdiction over acts of torture by U.S. nationals wherever committed or over such offenses committed elsewhere by alleged offenders present in U.S. territory whom the United States does not extradite. To correct this deficiency before ratification, the United States enacted a new provision of the federal criminal code in 1994. This statute, which is codified at Chapter 113B of Title 18 of the United States Code (copy in Annex II) provides federal criminal jurisdiction over an extraterritorial act or attempted act of torture if (1) the alleged offender is a national of the United States or (2) if the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender. See 18 U.S.C. sec. 2340 and 2340A, Pub. L. 103-236, Title V, sec. 506(a), as amended by Pub. L. 103-322, Title VI, sec. 60020, Pub. L. 103-415, sec. 1(k), and Pub. L. 103-429,sec. 2(2). The statute defines "torture" in a manner compatible with the U.S. reservations to the Convention. Offenses are punishable by fines or imprisonment up to 20 years (or, if death results from the prohibited conduct, by death or imprisonment for any term of years or life). This statute does not displace or preclude application of state or local law. This statute took effect on October 21, 1994; no prosecutions have been initiated by the United States under this provision to date. Article 6: Detention and Preliminary Inquiry In Cases of Extradition Federal law and bilateral extradition treaties authorize officers to take an alleged or suspected offender into custody and hold him until extradition proceedings are under way as required by Article 6. Ordinarily, the apprehension and detention of a suspected torturer for purposes of extradition requires issuance of an arrest warrant by a federal district court judge or magistrate judge. In an exigent circumstance (e.g., when a suspect is identified trying to enter or leave the country at a port of entry) an arrest may be made without a warrant and the suspect detained in accordance with normal procedure. The ordinary requirements for an initial appearance before a magistrate apply in such a situation; however, as a general matter, in U.S. practice bail is not granted to persons pending extradition. The detainee may of course seek judicial review of the detention by petitioning for a writ of habeas corpus. With reference to the provisions of Article 6(3), ordinary rules of consular notification apply. Article 7: Extradite or Prosecute ("Aut Dedere Aut Judicare") In cases where an alleged torturer has been found within U.S. territory and the United States does not extradite him or her, Article 7 requires that the case be submitted to competent authorities "for the purpose of prosecution." This aut dedere aut judicare obligation, comparable to provisions in other multilateral conventions such as the Conventions on Aircraft Hijacking and Sabotage, Maritime Terrorism, Internationally Protected Persons, and Hostage Taking, is specifically addressed by the implementing legislation discussed under Article 5 above. The United States has criminal jurisdiction to prosecute an individual for torture committed within its territory by authority of a number of federal and state laws. In addition, section 2340A of Title 18 provides for punishment of acts of torture committed outside the United States by a U.S. national or by a person subsequently present in the United States. The definition of torture set forth in section 2340 conforms to the definition in the Convention, as interpreted by the understandings expressed by the United States at the time of ratification. In sum, in such circumstances, prosecution can be initiated under U.S. law in a manner consistent with the obligations set forth in Article 7. Indeed, the U.S. Department of Justice has undertaken measures to ensure that any person on U.S. territory believed to be responsible for acts of torture is identified and handled consistent with the requirements of this provision. Article 8: Extraditable Offenses Pursuant to Article 8, any act of torture within the meaning of the Convention is now an extraditable offense under relevant U.S. law and extradition treaties with countries that are also party to the Convention. The United States has undertaken to include such offenses, directly or indirectly, in every extradition treaty it negotiates in the future. International extradition is a matter of federal law. See 18 U.S.C. sec. 3181-3196. As discussed above, under U.S. law the United States generally cannot extradite in the absence of an extradition treaty. For this reason, the United States will not avail itself of the permissive provision in Article 8(2) to consider the Torture Convention itself as the legal basis for extradition. Historically, the United States had preferred to specify the particular extraditable offenses in each extradition treaty with a foreign nation. The typical method for doing so involved listing each of the covered offenses in an annex to the treaty. More recently, however, U.S. practice has departed from this "list" approach. The U.S. now prefers to enter into treaties that obligate the States Parties to extradite individuals for those offenses which constitute a crime in both states and for which the penalty is deprivation of liberty for more than one year or a more severe penalty. This "dual criminality" approach automatically encompasses newly codified crimes such as torture and has proven to be more flexible and effective in bringing to justice criminals who are involved in criminal activities such as money-laundering, narcotics trafficking, white-collar crime and organized crime. Under the "dual criminality" approach it is not necessary specifically to incorporate the offense of "torture" into existing bilateral treaties or those to be negotiated in the future so long as torture or the acts constituting torture are offenses in both countries. To date, there have been no cases of extradition to another country for torture or torture-related offenses. The United States can extradite a person for an offense that would constitute torture to a State which is not a party to the Convention if the offense is on the "list" or (in the event of a "dual criminality" treaty) if the crime is punishable by a penalty of more than one year incarceration in both countries. With regard to States which are party to the present Convention but which do not have a bilateral extradition treaty with the United States, the U.S. has the following options where other criteria are met: removal under the terms of the Immigration and Nationality Act, prosecution within the U.S., or in the case of a non-national who committed a crime of violence against U.S. nationals outside the United States, extradition pursuant to 18 U.S.C. section 3181(b). In the case of Rwanda or the former Yugoslavia, the United States could also extradite to the respective International Criminal Tribunals. The Torture Convention has been cited in relatively few extradition cases to date. One is In Matter of Extradition of John Cheung, 968 F. Supp. 791 (D.Conn. 1997). Cheung contested extradition to Hong Kong, inter alia, on the ground that if extradited to Hong Kong, he would be subjected to torture or inhuman treatment in violation of Articles 6 and 14 of the International Covenant on Civil and Political Rights and Article 3 of the Torture Convention. The U.S. magistrate supervising the extradition hearing held that Cheung had failed to make a sufficient factual showing that he would be singled out for torture or death in Hong Kong, noting in any event that it is the U.S. Secretary of State who has statutory authority to determine whether extradition should be denied in a given case on humanitarian grounds. This role of the Secretary of State is the basis for the judicial rule of "non-inquiry," which prohibits the extradition magistrate from taking into account the possibility that the extraditee will be mistreated if returned. See also Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990). Under U.S. law, the so-called "political offense" exception to extradition would not be available to an individual accused or convicted of torture within the meaning of the Convention. The reasons are twofold. First, U.S. law requires application of the "incidence" test in judging whether a specific act of violence constitutes a "relative" political offense. Ahmad v. Wigen, 726 F. Supp. 389, 401-408 (E.D.N.Y. 1989). Under this rule, the act in question must be the incidental result of an act directed against a permissible target in the context of a civil war, insurrection, or uprising. There is no permissible target for an act of torture in any context. Second, new extradition treaties now exclude from the political offense exception those acts for which both States have the obligation to extradite the person sought or to submit the case to their competent authorities for the purpose of prosecution under multilateral treaties such as the Torture Convention. Article 9: Mutual Legal Assistance U.S. law permits both law enforcement authorities and the courts to request and to provide many forms of "mutual legal assistance" in criminal cases covered by the provisions of the Torture Convention. The forms of possible assistance include the service of documents, the taking of testimony, provision of documents, execution of requests for searches and seizures, transfer of persons in custody, and forfeiture of assets, to name a few. Statutory authority for the United States to act upon such requests from foreign countries is codified at 28 U.S.C. section 1782. As amended in 1996, U.S. law authorizes the appropriate federal district courts to order a person to give testimony or provide documents for use in "a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." U.S. law does not prohibit voluntary cooperation with foreign criminal proceedings. A person may not, however, be compelled to give testimony or produce a document in violation of any legally applicable privilege. As of the end of 1998, the United States had entered into 22 bilateral treaties and dozens of bilateral agreements with other countries to establish closer and more effective law enforcement cooperation and to increase the availability of admissible evidence in criminal investigations and proceedings. An additional 19 bilateral mutual legal assistance treaties were ratified by the United States during December 1998 and January 1999. Some of these treaties and agreements require dual criminality in the subject offenses, others do not; but all cover a wide range of criminal offenses, and all would permit the sharing of evidence and other forms of assistance in respect of the crimes covered by the Torture Convention. Such treaties are considered self-executing and supersede any inconsistent pre-existing statutory domestic law. In re Erato, 2 F.3d 11 (2d Cir. 1993). The United States has signed the Inter-American Convention on Mutual Legal Assistance in Criminal Matters, which was transmitted to the Senate for its advice and consent to ratification in 1997. Since that Convention is not yet in force for the United States, no requests for mutual assistance have been executed pursuant to its terms. Also on the multilateral level, the United States played a substantial role in the establishment by the United Nations of the two ad hoc International Criminal Tribunals (for the Former Yugoslavia and for Rwanda) and has provided significant operational support to their activities. In 1996, the mutual legal assistance statute (sec. 1782) was amended to authorize assistance to the Tribunals and to foreign countries in gathering evidence for preliminary investigations as well as for prosecutions. The amendment ensured that several earlier federal court of appeals decisions limiting the use of that provision in preliminary stages of foreign investigations would not interfere with the U.S. obligation to provide assistance to the Tribunals. Article 10: Education and Information The U.S. Government attaches great importance to the task of providing education and information regarding the prohibition against torture to persons who may be involved in the custody, interrogation, and treatment of persons arrested, detained or imprisoned. Indeed, in furtherance of the goals of education and information, this report has been posted on the U.S. Department of State web page at http://www.state.gov/www/global/human_rights.torture_index.html Educational Outreach. Copies of the Convention have been sent to the Attorneys General of each of the 50 states and other constituent governmental units of the United States, with a request that they be further distributed to relevant officials. Once the present report has been published, copies will be available to libraries, schools, and interested citizens through the U.S. Government Printing Office (GPO). The Department of State is in the process of increasing the amount of information about human rights issues available on its web page at http://www.state.gov/www/global/human_rights/index.html. The web page provides information about all aspects of the Department's work, including of human rights issues, speeches given by departmental officials, and the annual "human rights" country conditions reports. In addition, this Report will be posted on the Department's web page. Our goal is to enhance the human rights portion of the web page to include links to the texts of human rights treaties and other documents available on the Internet, including the current Convention. Training. All federal law enforcement and corrections officers receive mandatory training in the proper treatment of individuals in custody, which includes specific information regarding the prohibition against torture, excessive use of force, impermissible methods and techniques of interrogation and restraint, cultural sensitivity and diversity, and other issues relevant to compliance with the Convention. The Federal Bureau of Prisons requires each new permanent employee (and certain designated temporary employees) to complete two weeks of familiarization training in proper correctional practices. In addition, each new permanent employee must complete a 120 hour (three week) course denominated "Introduction to Correctional Techniques" at the Federal Law Enforcement Training Center in Glynco, Georgia. This training includes review and testing in Bureau of Prisons policy, firearms proficiency and self-defense. Each employee stationed at a Bureau institution must receive forty hours of refresher training in these subjects each year. Many law enforcement agencies rely on screening techniques to identify applicants and officers/agents who may be disposed to, or are at risk of, using excessive force through psychological methods; many also employ psychologists in order to monitor, train, counsel, evaluate law enforcement personnel in an effort to prevent abuses before they occur and to address the institutional or organizational factors which may contribute to incidents of ill-treatment or excess. State and local criminal justice systems have independent programs for the training of law enforcement and corrections officers, which also cover such subjects as proper techniques of search, interrogation, use of force, and mental health issues. State police officers, for example, receive an average of over 8000 hours (20 weeks) of required training. For nearly two years, all states have had "peace officer standards and training" commissions. At the state and local level, correctional training and staff development programs are supplemented by the resources of public and private agencies, local police academies, private industry, educational institutions and libraries. The National Institute of Corrections, the National Academy of Corrections, the National Institute of Justice, the Federal Bureau of Investigation and others provide managerial, specialized and advanced training for state and local corrections officials. The International Association of Directors of Law Enforcement Standards and Training (IADLEST) provides an information system for employment and training of law enforcement and correctional personnel, including model minimum state standards. The American Corrections Association, a private non-profit organization dedicated to the improvement in management of American correctional agencies throughout the country, has developed a voluntary accreditation program and nation-wide standards for correctional facilities. These criteria, which apply to about 80 percent of the state departments of corrections and youth services, as well as to facilities operated by the District of Columbia and the U.S. Department of Justice, require all new full-time employees to receive 40 hours of initial orientation training, which should include at a minimum orientation to the purposes, goals, policies, and procedures of the institution and parent agency; working conditions and regulations; employees' rights and responsibilities; and an overview of the correctional field. This training is in addition to the first year training and on-going training required in various job categories. Local governments and police officers may be liable as a matter of federal law for failing adequately to train officers on constitutional limitations on the use of force. City of Canton v. Harris, 489 U.S. 378 (1989). In Davis v. Mason Co., 927 F.2d 1473 (9th Cir. 1991), for example, four plaintiffs alleged that they had been the victims of police brutality when each was individually detained for supposed traffic violations. In each case, officers used excessive force while searching the victims. The appellate court affirmed judgment in favor of the plaintiffs, holding specifically that the trial court had been correct in instructing the jury that they could find the County government and the Sheriff liable under 42 U.S.C. sec. 1983 for failure to train the Sheriff's deputies properly. During the basic training course provided to all Border Patrol Agents, the Border Patrol Academy provides a two hour course in ethics and conduct. This course instructs Agents of their obligations toward individuals they arrest and the rights of those who are arrested. The Academy also has a four hour course in constitutional law that instructs Agents on the civil rights of those individuals that they encounter. The Academy also provides twenty-three hours of instruction on statutory authority under the Immigration and Nationality Act (INA). Part of this course informs Agents of the limitations on their authority and their obligations under the INA when making arrests. Finally, the Academy provides three hours of instruction on officer integrity. This course provides instruction on an Agent's responsibilities in dealing with members of the public. In the refugee context, the U.S. Immigration and Naturalization Service has established a separate corps of asylum adjudicators, all of whom are given extensive training on issues relating to torture in order to sensitize them to the unique humanitarian aspects involved in claims for refugee status based on allegations of torture. All asylum officers are required to attend the Asylum Officer Basic Training Course (AOBTC) as well as on-going in-service training. The AOBTC is approximately four weeks in length and includes, inter alia, training in international human rights law, U.S. asylum and refugee law, interviewing techniques, and decision-making skills. Incorporated into this course is training on interviewing survivors of torture and other severe trauma. Experts instruct the officers about the physical and psychological effects of torture, its implications for the interview, and stress/burnout that the asylum officer may experience as a result of continually interviewing individuals who may be survivors of torture. In the military context, all personnel involved in custody, interrogation, or treatment of individuals subjected to any form of arrest, detention, or imprisonment receive appropriate training regarding the prohibition of torture and related maltreatment. This training is given to military police, interrogators, inspectors general and psychiatric hospital staff. Through the International Criminal Investigative Training Assistance Program ("ICITAP"), the U.S. Department of Justice works with law enforcement organizations in various foreign countries to build democratically-based police forces which operate under the rule of law. Among the components of the ICITAP program are a training course entitled "Human Dignity in Policing," the establishment of an independent oversight mechanism (such as an Inspector General's Office) to provide objective and impartial investigation of alleged police abuses, and training courses in techniques for interviewing witnesses and suspects, appropriate uses of force, and proper techniques for arrest and humane handling of detainees and prisoners. Medical Personnel. Training in the principles of medical ethics and "standards of care" is normally a required element of the curriculum for medical doctors and other health care personnel. All health care personnel are trained in the basic obligations of the physicians' oaths (such as the Hippocratic Oath, the International Code of Medical Ethics, and the 1982 UN 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). The Code of Medical Ethics of the American Medical Association ("AMA") has guided medical practice in the United States for over 150 years and is the generally recognized ethical standard; the AMA promotes professional discussion and exchanges of views on ethical matters, e.g., through its Institute for Ethics which was established in 1997 to perform research in a range of biomedical ethics (end-of-life care, genetics, managed care and professionalism). Other codes exist; for example, the American College of Emergency Physicians established a new code of ethics in 1997. To instruct students in this field, medical educational institutions use such textbooks as Beauchamp and Childress, Principles of Biomedical Ethics (4th ed. 1994); Beauchamp and Walters, Contemporary Issues in Bioethics (4th ed. 1994); Crigger, Cases in Bioethics (2nd ed. 1993); and Levine, Taking Sides (5th ed. 1993). At the federal level there exists a National Center for Clinical Ethics, which was established within the Department of Veterans Affairs in 1991 to provide a comprehensive bioethics program to promote high ethical standards in healthcare for veterans. Within the legal community of the United States, there is a growing emphasis on medical/ethical issues. For example, specialized programs in health law and bioethics are now wide-spread, including academic programs to train medical clinicians to practice ethics consultation as a specialty as well as to prepare lawyers to practice in the field of health law. Professional associations such as the American Society of Law, Medicine and Ethics and the Association of American Law Schools' Section on Law, Medicine, and Health Care also promote the study of bioethics. Legislative Proposals. Partly as a result of U.S. ratification of the Convention, legislative proposals have been introduced and adopted in the U.S. Congress to improve and enhance education and training in regard to preventing and remedying instances of torture and other ill-treatment. One such bill, adopted on October 30, 1998, the "Torture Victims Relief Act of 1998" (Pub. L. 105-320, 112 Stat. 3017), authorizes the President to provide assistance for the rehabilitation of victims of torture in the form of grants to treatment centers and programs in foreign and domestic treatment centers for victims of torture. The Act also authorizes contributions to the United Nations Voluntary Fund for Victims of Torture form fiscal years 1999 and 2000. Moreover, the Act requires that foreign service officers receive specialized training with respect to the identification of the evidence of torture, the circumstances in which it is practiced, its effects, and the proper manner for interviewing victims of torture, including gender specific training on the subject of interacting with men and women who are victims of rape or other forms of sexual violence. The Act further states that it is the "sense of Congress" that the U.S. Permanent Representative should request the Fund to find new ways of supporting and protecting treatment centers and programs, to use the voice and vote of the U.S. to support the work of the Special Rapporteur on Torture and the Committee Against Torture, and to establish a country rapporteur or similar procedural mechanism where the Special Rapporteur or Committee indicates a systematic practice of torture is prevalent. Article 11: Interrogation Techniques In the United States, police interrogation of a criminal suspect is strictly regulated by court-made rules based on constitutional law. Law enforcement officers are instructed in these rules as well as in the consequences of their failure to follow them. As a result, the methods and practices of interrogation of criminal suspects, as well as the arrangements for the custody and treatment of persons subjected to arrest, detention or imprisonment, are consistently under systematic review and revision. In the first instance, U.S. law circumscribes the power of the police and other governmental authorities to detain or arrest individuals for any reason, including for purposes of interrogation. The Fourth Amendment not only requires "probable cause" for an arrest but prohibits the use of excessive force during an arrest, investigatory stop, or other "seizure" of a person. See Graham v. Connor, 490 U.S. 386 (1989). Custodial Interrogation. Once a criminal suspect has been taken into custody, U.S. law provides several protections against physical and mental compulsion, threats, and inducements to make incriminating statements. Under the Fifth Amendment's privilege against compelled self-incrimination and the rule imposed by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), prior to interrogation the police must inform the suspect that he or she has the right to remain silent, that any statements he or she makes can be used against him or her in court, that he or she has the right to consult a lawyer and to have the lawyer present during interrogation, and that if he or she cannot afford a lawyer one will be appointed to represent him or her prior to questioning. These rights (commonly called "Miranda rights") ordinarily attach when the individual is first subjected to custodial interrogation. Exclusionary Rule. A confession or statement obtained by an officer who fails to follow these rules normally may not be used as evidence against the person who made the statement in criminal proceedings. Similarly, evidence obtained as a result of the police taking advantage of such a statement may not be used in criminal proceedings. State rules may provide more stringent restrictions for state and local law enforcement officers. Article 12: Prompt and Impartial Investigation As a matter of law, policy and practice, the competent authorities at all levels of government should proceed with a thorough, prompt and impartial investigation whenever they have reason to believe that an act of torture has been committed within their jurisdiction. While such investigations are frequently instigated by complaints from alleged victims and/or by independent press stories, the authorities in each jurisdiction have a clear and independent responsibility to monitor and correct abuses on their own. Investigations of torture and other types of physical, sexual, or emotional abuse are initiated as they would be for any other serious offense, based upon the existence of reasonable grounds to believe that the abuse took place. Several mechanisms exist for this purpose. Virtually all major law enforcement organizations and agencies now have an internal review mechanism (such as an inspector general or internal affairs section) and/or some form of permanent, independent oversight body (a citizens' review board or governing commission) to which complaints of ill-treatment, excessive use of force, or other irregularities can be made. The touchstone is independence of review and investigation. All inmate allegations of abuse by Federal Bureau of Prisons staff, for example, are referred by the Bureau's Office of Internal Affairs to the Department of Justice's Office of the Inspector General, which then conducts an independent investigation and determines whether to refer any of the complaints to the Department's Civil Rights Division for further investigation. In some circumstances, ad hoc commissions are established to deal with specific situations requiring independent review, such as the so-called Christopher Commission established to investigate the Los Angeles Police Department after the Rodney King incident in 1991. In all cases, complaints may also be made to the appropriate prosecutorial authorities, who are independent of the police and other law enforcement forces under the U.S. system. Prosecutors make their own decisions, frequently on the basis of complaints, about initiating investigations and filing criminal charges. In the most significant cases, the federal government may have jurisdiction over allegations of misconduct at the state, county or local law enforcement levels. Jurisdiction can be based on criminal violations of the various civil rights statutes or on specifically tailored legislation such as the Civil Rights of Institutionalized Persons Act, which permits the Attorney General to institute civil lawsuits against state institutions regarding the civil rights of their residents, including the conditions of their confinement and use of excessive force. In addition, the federal government may institute civil actions pursuant to the Pattern or Practice of Police Misconduct provision of the Crime Bill of 1994, which prohibits law enforcement agencies from engaging in a pattern or practice of violating people's civil rights. By way of example, the statute allows the Civil Rights Division of the U.S. Department of Justice to investigate and seek to remedy patterns or practices of excessive force, false arrests, improper searches and seizures, and discriminatory traffic stops or pedestrian stops. The Civil Rights Division has filed two "pattern or practice" lawsuits, against the Pittsburgh, Pennsylvania, and Steubenville, Ohio Police Departments and entered into consent decrees in both cases. These decrees require comprehensive reforms in those departments' methods of supervising, training, and disciplining officers, as well as investigating the public's complaints of police misconduct. Two other "pattern or practice" lawsuits, against the Columbus, Ohio Division of Police and the New Jersey State Police, have been announced but not yet filed as the Civil Rights Division and the affected jurisdictions are seeking to negotiate settlements that would be filed contemporaneously with the lawsuits. Numerous other civil "pattern or practice" investigations of police departments and sheriff's offices are ongoing. Among those that have been publicly reported are investigations of the New York Police Department (for, among other things, the Louima case), the Los Angeles Police Department, and the New Orleans Police Department. Article 13: Right to Complain In all situations, all victims of torture in the United States have the right to bring a complaint and to have their case promptly and impartially examined by competent authorities. When a victim alleges that he or she has been abused by an official, the avenues of redress include the right to complain to a competent official to initiate an impartial investigation. No restrictions on who can bring such a complaint (e.g., citizens, nationals, foreigners, illegal aliens). Such complaints do not need to await a criminal verdict, nor a verdict of acquittal in the case of a person charged with a crime. The alleged failure of a correctional institution to provide inmates with an adequate administrative remedial mechanism for dealing with complaints has been the subject of federal litigation. Initially, the complaint mechanism may involve an administrative proceeding. For prisoners in the custody of the Federal Bureau of Prisons, the initial route for filing a complaint or grievance is to file a complaint regarding the conditions of confinement or against a staff member with the Bureau's Administrative Remedy Program. Through this program, a prisoner may present and appeal an issue at three levels, starting at the institutional level and proceeding through the regional level to the Central Office. See 28 C.F.R. Part 542. The Bureau of Prisons reports that, during calendar year 1998, 17,269 administrative complaints were filed at the institutional level (13.3% granted); 11,106 at the Regional level (6.7% granted); and 4,535 at the Central Office (0.8% granted). Habeas Corpus. The federal Constitution guarantees all detained individuals the right to petition for a writ of habeas corpus. This writ enables the independent judiciary to provide effective relief to any individual wrongfully detained in governmental custody, whether as a result of criminal or civil proceedings. In most criminal proceedings, the petitions allege some violation of constitutional standards of due process. A writ of habeas corpus may also be used to complain of unconstitutional conditions of confinement, including torture or ill-treatment. Although the federal Constitution does not foreclose statutory substitution of an alternative to habeas corpus review, that alternative must provide independent scrutiny of governmental detention., e.g., the Illegal Immigration Reform and Immigration Responsibility Act, Pub. L. 104-208, 110 Stat. 3546 (Sept. 30, 1996). State habeas corpus provisions generally follow the same guidelines. The Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1218, enacted in April 1996, requires state inmates to exhaust all available remedies at the state level before filing a habeas corpus petition in federal court. Additionally, the Act established a statute of limitation whereby both federal and state inmates have one year from the time their convictions become final (after direct appeals of their convictions and/or sentences are exhausted) to file a federal habeas petition. Successive petitions must be approved by a panel of the applicable federal court of appeals, which reviews petitions to ensure they are limited to cases that present newly discovered evidence that would have undermined the jury's verdict, that involve new constitutional rights retroactively applied by the U.S. Supreme Court, or in which the previous request for habeas corpus was not fully considered by the relevant court. Some concern has been expressed over the enactment of the 1996 Prison Litigation Reform Act, Pub. L. 104-134, as amended by Pub. L. 105-119, codified at 18 U.S.C.sec. 3626. Congress passed this law to establish more restrictive standards for the entry and continuation of prospective injunctive relief regarding conditions of confinement in prisons, jails, and juvenile facilities. This law was a response to the large number of frivolous or harassing prisoner suits which have drained the resources of the federal judicial system. Prisoner litigation has in recent years grown to become the single largest category of federal civil rights cases, constituting approximately 17% of the federal district court civil docket and 22% of federal civil appeals. The new law requires that, before an inmate can file a civil rights action in Federal court, he or she must (i) exhaust all available administrative remedies, and (ii) show physical injury to receive damages for mental or emotional injury suffered while in custody. In addition, the law generally prohibits an inmate from filing a petition in forma pauperis (as an indigent without liability for court fees and costs) if the inmate has filed three or more actions in federal court that were dismissed as frivolous or malicious or for failing to state a claim upon which relief could be granted. Sanctions can be imposed on inmates who abuse the court system. Some prisoners' rights advocates have contended that the act has operated to limit the ability of individuals and non-governmental organizations to challenge cases of abuse in the courts, arguing, in particular, that the requirement that prisoners show physical injury before they can receive damages for mental and emotional injury is not fully consistent with U.S. obligations under the Torture Convention. State habeas corpus and other court procedures are not limited by these federal statutes and remain available to state prisoners. In addition, federal and state law provides various measures to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of filing a complaint or providing evidence in support of it, such as witness protection programs. Victims' Rights. The U.S. legal community is currently debating whether new legislation (or possibly an amendment to the U.S. Constitution) should be adopted to recognize and expand the rights of victims of crimes, particularly violent crimes, including inter alia the right to be present and to be heard at any public proceeding involving an offender's release from custody, the right to have the safety of the victim considered in determining any conditional release from custody relating to the crime. The first crime victims assistance programs were adopted some twenty-five years ago at the state and local level. At the federal level, the Victims of Crime Act was adopted in 1984 establishing a crime victim fund; in 1994, additional victims' rights legislation was enacted as part of the Violent Crime Control and Law Enforcement Act, Pub. L. No. 103-322, Title XXIII, 108 Stat. 2077. To date, approximately twenty states have amended their constitutions or passed legislation providing, inter alia, special rights to restitution. In some circumstances, a court may impose an order of restitution as part of its sentence, requiring the convicted individual to make a payment to the victim rather than to the government. See Mandatory Victims Restitution Act of 1996, Title II, Pub. L. 104-132, 110 Stat. 1227, codified at 18 U.S.C.sec. 3663A(a). Special protection is afforded to minor victims and witnesses under 18 U.S.C. section 3509, including protections of confidentiality, support of an adult attendant, services of a guardian ad litem, alternatives to live testimony, and issues of competency. Domestic Assistance to Victims of Torture. In April 1997, the U.S. Department of Health and Human Services and U.S. Senator Paul D. Wellstone co-sponsored a conference entitled "Survivors of Torture: Improving Our Understanding" at which representatives from the human rights, refugee, and medical communities discussed treatment of the survivors of torture. In addition, the National Institute of Mental Health has made available $1.5 million in funding for research for survivors of torture and related trauma. Indeed, the President has requested from Congress $7.5 million for services and rehabilitation for victims of torture in his FY 2000 budget. Also, as noted above, the United States continues to lead the world in its support of the U.N. Voluntary Fund For Victims of Torture. For three years, the Office of Refugee Resettlement ("ORR") of the U.S. Department of Health and Human Services has been awarding funds to assist torture victims. Beginning in 1996, ORR has gradually increased support and currently funds ten organizations at a total of $1.7 million in Denver, San Francisco, San Jose, Dallas, Boston, Minneapolis, and New York City. These programs identify torture survivors among refugee communities and help to make survivors comfortable with obtaining help. The activities funded by ORR include: training refugee resettlement staff, English language teachers, volunteers, community services staff so that torture survivors can be identified and be referred to the services they need; orienting refugees to the help available from mental health services; and orienting mental health professionals to effectively serve refugees across language and cultural barriers. ORR is also continually working with a network of non-profit organizations around the country whose mission is to serve the needs of torture victims. The services needed by torture survivors are a unique combination of medical care, spiritual healing, psychological help, and other social services. Some examples are: Center for Victims of Torture in Minnesota has established a training program for school teachers with students who are themselves victims of torture or whose families have suffered; Survivors International of San Francisco has established peer support groups and a community center to offer survivors a path out of isolation; International Institute of Boston is training mental health organizations throughout New England to treat torture survivors; and Solace in New York City helps survivors of torture reunite with their families and obtain services such as employment and housing. Foreign Assistance to Victims of Torture. In addition, the U.S. Agency for International Development ("USAID") is committed to assisting victims of torture throughout the world. Latin America. USAID has supported Offices of the Human Rights Ombudsman in a number of countries, including Bolivia, Ecuador, Nicaragua, Guatemala, and Peru. The purpose of these offices is to create a visible mechanism to deal with government-sponsored abuses of human rights. Torture is an important focus of their work. USAID also supports, as an element of its regional democracy programming, the work of the Inter-American Institute for Human Rights, which supports the work of several ombudsman offices. The institute also has created a Program for the Integrated Prevention of Torture. Initially, the focus was on training health professionals in the rehabilitation of torture victims. The current objective is to train prison officials, improve prison conditions, and otherwise give priority to the prevention of torture. In Colombia, USAID is assisting torture victims through assistance to human rights training programs, including training of the Human Rights Units of the Office of Prosecutor General. In Guatemala, USAID has supported work in two relevant areas. The Historical Clarification or Truth commission received $1.5 million in FY '97 and '98. Another $2.7 million has been invested in treating victims of human rights abuses in the last two fiscal years. Most of this funding was managed by the International Organization for Migration (IOM), which in turn makes sub-grants to local and community groups best suited to respond to a variety of human rights abuses, including torture. In Haiti, since 1994, USAID has supported a Human Rights Fund, which goes to assisting victims of human rights abuses, including political rape, beatings in custody and other forms of torture. The most recent extension of the fund through the end of August 1999 is for $2 million, some $600,000 of which is for victim assistance and treatment. This funding is directed where it can do the most good, primarily to individual physicians running their own treatment programs and who are working to establish a countrywide network for referral and treatment. The remainder goes to prevention programs directed at police/community relations and public human rights education. The incidence of human rights abuses in Haiti has declined in recent years, in part because of improved training of the national police. In Peru, since 1994, USAID has extend assistance to victims of gross violations of human rights through an umbrella agreement with Catholic Relief Services, which in turn provides grants to local NGOs. These groups provide legal assistance to those wrongly accused of terrorism, many of whom have been tortured. Other programs document torture cases. Africa. USAID has a variety of programs directed at torture and related forms of trauma in Africa. For example, in 1998 the agency's human rights program in South Africa totaled $1.5 million and placed strong emphasis on victims of violence and torture. And, the USAID program in Angola includes treating and rehabilitating war-traumatized children, landmine victims, and widows and former child-soldiers. USAID supports several interventions addressing the impact of this violence on children and other war victims. In Liberia, the Displaced Children and Orphans Fund supports a number of programs that assist children and youth who have been severely affected by the years of conflict in that country. The Patrick Leahy War Victims Fund supports clinics that, in addition to assisting landmine victims, also treat people who have been tortured. In Sierra Leone, USAID is providing $1.3 million through UNICEF to assist children who have been separated from their families, involuntarily conscripted into military groups or otherwise severely affected by violence. Many of these children were physically or psychologically tortured. In Uganda, with financing from the Displaced Children and Orphan's Fund, USAID initiated a $1.5 million program to treat and rehabilitate demobilized child soldiers and other affected children who were recruited or impressed into insurgent armies, often by beating, torture and the rape of young girls. Many of these children and youths were forced to practice, or were witnesses to, extreme forms of cruelty. Asia. In Cambodia, to address the harsh aftermath of the Khmer Rouge reign of terror, Harvard's School of Public Health's Program of Refugee Trauma has joined with the Ministry of health in training primary care physicians to recognize and treat mental illness and trauma. Target beneficiaries are refugees, children, landmine victims and widowed women. We have supported this program. Europe/New Independent States. In Bosnia, USAID has supported programs that provide trauma counseling and medical assistance for war victims, including those tortured by rape and other means. Implementing partners have been the International Human Rights Law Group and Delphi. Other funding to local NGOs has been provided to offer counseling to victims of torture, rape and other atrocities. Fortunately, the incidence of these crimes has greatly diminished since the signing of the Dayton Accords. In Georgia, assistance is provided through the Horizontal Foundation for organizational development and training to such groups as the Committee Against Torture, Organization for the Defense of Human Rights and Social Security of Prisoners, Media (medical experts), and other human rights NGOs. Also, the Liberty Institute has received funding to track human rights abuses, particularly by police. Finally, in Kosovo, as USAID and may other organizations and nations begin a massive program of humanitarian relief, we are extremely aware that many of the Kosovars have suffered rape, torture and other forms of brutality. We have supported treatment for these victims in the refugee camps and will continue to assist them as they return to their homeland. In Macedonia, we have supported programs by the International Catholic Migration Committee and Medicine du Monde that include therapeutic activities for girls and women suffering from rape and other forms of trauma. In Albania, Catholic Relief Services social workers have provided trauma counseling to girls and women. At this time we are considering new proposals for services in Kosovo that will include psychosocial treatment to victims of torture and rape. Supplemental funds made available for FY 1999 under the Kosovo Economic and Social Recovery Program will be in part used for this purpose. Article 14: Private Right of Redress and/or Compensation A person subjected to torture within the United States has a legal right to redress and an enforceable legal right to fair and adequate compensation from the alleged offender. Moreover, in some circumstances, U.S. law provides a potential remedy for foreign victims of torture occurring outside the United States. A victim may pursue several possible avenues of redress, depending on the specific circumstances. Medical and psychiatric treatment and rehabilitation are also available to victims of torture. U.S. Understanding. The negotiating history of the Convention indicates that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in its territory only, not out of acts of torture which occurs abroad. Article 14 was in fact adopted with express reference to the victim of an act of torture "committed in any territory under its jurisdiction." The quoted wording appears to have been deleted by mistake. To clarify the proper scope of the requirement imposed by Article 14, the United States stated its "understanding" that: Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in the territory under the jurisdiction of that State Party. As discussed below, federal law currently provides rights which are potentially broader than those required by Article 14 with respect to obtaining redress for acts of torture occurring outside of U.S. territory. A. Right to Redress Under Article 14 Compensation. At the federal level, the principal avenues are administrative tort claims and civil litigation. Existing U.S. law establishes private rights of action for damages in several forms. Such suits could take the form of a common law tort action for assault, battery or wrongful death, a civil action for violations of federally protected civil rights, or a suit based on federal constitutional torts. Under the Equal Access to Justice Act, 28 U.S.C.sec. 2412, a federal court may award costs and reasonable attorney's fees and expenses to a plaintiff who prevails in a suit based on a for violation of his or her civil rights. These mechanisms offer ample possibility for recovery of "adequate reparation" and generally are not constrained by limits on awardable compensation. Survivors of a victim killed by torture have under common law a right to seek compensation for the victim's "wrongful death." Section 1983. The most common method by which prisoners seek redress (monetary damages as well as equitable or declaratory relief) against state and municipal officials is by means of a civil law suit for violations of fundamental rights pursuant to 42 U.S.C. section 1983 (initially enacted as section 1 of the Federal Civil Rights Act of 1871). This provision states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. "State actions", i.e., actions by state or local officials, may give rise to a suit under section 1983. Through such a suit, an individual may seek redress for an officer's violation of his or her Fourth Amendment rights during the course of an arrest, or a guard's violation of his or her Eighth Amendment rights by the infliction of cruel or inhuman punishment. Section 1983 actions are also available to individuals who claim they have been subjected to discipline or excessive force by prison officials without due process -- a violation of the prisoner's Fifth and Fourteenth Amendment rights. While such suits can be filed in state courts, most are presented to the federal judiciary. The volume is substantial, approximately 58,000 cases in 1994 alone. While the statute was initially adopted to permit citizens to sue state and local government officials whose policies and practices fell below constitutional standards, it has come to be used primarily by prison and jail inmates challenging the conditions of their confinement. Typically, such cases claim that state officials have deprived prisoners of their constitutional rights, such as access to adequate medical treatment, Estelle v. Gamble, 429 U.S. 97 (1976), protection against excessive force by correctional officers, Hudson v. McMillian, 512 U.S. 995 (1992), violence by other inmates, Farmer v. Brennan, 114 U.S. 1970 (1994), or claiming denials of access to courts, law libraries and lawyers, Bounds v. Smith, 430 U.S. 817 (1977). Prisoners also frequently claim compensation for e.g., cruel and unusual punishment in violation of the Eighth Amendment (inadequate living conditions, failure to protect against inmates with AIDS, exposure to tobacco smoke), for denial of equal protection under the Fifth and Fourteenth Amendments, and for violations of due process (e.g., improprieties in the conduct of disciplinary hearings, classifications, administrative segregation). Section 1983 applies to state officers who act under color of state law. Monroe v. Pape, 365 U.S. 167 (1961). It also extends to municipalities and encompasses suits in which "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose conduct or acts may fairly be said to represent official policy." Monell v. Dept. of Social Services, 436 U.S. 651, 690-691 (1978). Bivens Claims. Individuals who have been subjected to excessive force or cruel or unusual punishment may bring suits against federal officials for violations of their federal constitutional rights under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Other Statutory Tort Claims. Another federal civil remedy is provided by the statutory grant of jurisdiction to sue the federal government for negligence or malfeasance. For example, the Federal Tort Claims Act, 28 U.S.C. sec. 1346(b) and 2671 et seq., waives the sovereign immunity of the United States with respect to certain torts and gives the U.S. District Courts exclusive jurisdiction of civil actions against the U.S. for money damages for personal injury or loss of property caused by a negligent or wrongful act or omission of a government employee acting within the scope of his or her office or employment. This provision may be used by federal inmates, U.S. v. Munoz, 374 U.S. 150 (1963), and may be used to sue federal law enforcement officers for intentional torts, including, inter alia, assault, battery, and false arrest. See, e.g., Sami v. United States, 617 F.2d 755 (D.C. Cir. 1979). State Law. All states permit civil tort suits for negligence against state officials. See, e.g., Kansas Tort Claims Act, K.S.A. sec. 75-6104. Some states permit action for intentional torts against law enforcement officials. See, e.g., New Mexico Tort Claims Act, N.M Stat. Ann. 41-4-12. An increasing number of states now permit the award of damages for violations of state constitutional rights. For example, in Brown v. State of New York, 89 N.Y.2d 172, 652 N.Y.S.2d 223 (1996), the New York Court of Appeals permitted a class action on behalf of some 300 citizens (non-white males) who had been systematically stopped and examined by local police after an elderly woman had been assaulted at knife point. Because the victim could only identify her assailant as an African-American man who may have cut his hand during the attack, the police questioned every black student enrolled at the local branch of the state university system and eventually every black male in the area. Claimants argued that the police action had been racially motivated and based their claims on the equal protection provisions of the New York State Constitution, since New York has no enabling statute similar to the federal civil rights statute. In upholding their cause of action, the court stated: [T]he State is appropriately held answerable for the acts of its officers and employees because it can avoid such misconduct by adequate training and supervision and avoid its repetition by discharging or disciplining negligent or incompetent employees.... A damage remedy for constitutional torts depriving individuals of their liberty interests is the most effective means of deterring police misconduct...." Id. at 194, 196. B. Additional Rights and Remedies Under U.S. Law Alien Tort Claims Act. U.S. law provides statutory rights of action for civil damages for acts of torture occurring outside the United States. One statutory basis for such suits, the Alien Tort Claims Act of 1789, codified at 28 U.S.C.sec. 1350, represents an early effort to provide a judicial remedy to individuals whose rights had been violated under international law. The Act provides that "[the] district courts shall have original jurisdiction in any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The Act was successfully invoked only twice over the first two centuries of its existence. Then, in 1980, the Second Circuit Court of Appeals handed down the pivotal decision, Filartiga v. Pena-Irala, 630 F.2d 774 (2d Cir. 1980). This decision allowed a Paraguayan citizen to sue a f