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HUMAN RIGHTS ABUSE: Bonnie Kerness Addresses the National Conference of Black Lawyers (Oct. 8, 1999)


"Turning the Tables on US Abuse of International Human Rights Standards:

Exploring Ways to Use International Treaties and Covenants in Domestic Litigation"


National Conference of Black Lawyers

October 8, 1999

By Bonnie Kerness
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I have been a human rights advocate on behalf of prisoners in the United States for the past 22 years. I'd like to share with you some of the voices that I hear during my day.

This is from a letter by a social worker at Utah State prison who writes, "John was directed to leave the strip cell and a urine soaked pillow case was placed over his head like a hood. He was walked, shackled and hooded to a different cell where he was placed in a device called "the chair"... he was kept in the chair for over 30 hours resulting in extreme physical and emotional suffering..."

Another writes on behalf of Scotty Lees in Arizona. He describes him being placed in a restraint chair. He was stripped naked and placed in the chair with his buttocks several inches below his knees. His arms and legs were then cuffed and shackled to the legs of the chair to prevent him from moving. He was left uncovered and unprotected, in pain for over 24 hours. Mobility was non-existent. He couldn't relieve himself without soiling himself..."

From Florida, sometime during the struggle jailers shocked Norberg multiple times with stun guns. Inmates who witnessed his death estimate that he was shocked between eight and twenty times. The medical examiner put it at 22 times...."

From Texas, "I was sprayed with so much gas that I lost consciousness. I was kept naked this way for 8 or more hours.

From Delaware, "I was sprayed starting from the left side of my face to the right side and back again. I was blind for about 15 minutes. Another kind of spray caused me to vomit. I was told that prisoners 30 feet away began to vomit.

From Colorado, "I was sprayed with pepper spray and it was 10 hours before I was allowed to wash. This resulted in burns and blisters to my arms, face, chest and feet. For the entire 10 hours I felt like I was being boiled alive. When you are forced to stand in the sun with no shelter, the sweat from your body continues to reactivate this chemical agent so that you remain in extreme pain."

A woman in Texas writes "the guard sprayed me with pepper spray because I wouldn't take my clothes off in front of five male guards. Then they carried me to a cell, laid me down on a steel bed and took my clothes off. They left me in that cell with that pepper spray in my face and nothing to wash my face with. I didn't give them any reason to do that I just didn't want to take my clothes off.

From another woman who says "I'm tired of being gynecologically examined every time I'm searched". Other women report use of restraints on pregnant and sick prisoners. Some have reported giving birth while being handcuffed and shackled.

Some of the most poignant letters are from prisoners written on behalf of mentally ill prisoners - like the man in California who spread feces over his body. The guards' response to this was to put him in a bath so hot it boiled 30% of the skin off his body. Article I of the United Nations Convention Against Torture prohibits "physical or mental pain and suffering, inflicted to punish, coerce or discriminate for any reason". Practices such as the indefinite use of shackles and other mechanical restraints, and the administration of dangerous chemical treatments; or the practice of extended isolation cannot be justified. These practices put the US in violation of United Nations Treaties and Covenants which it has signed.

These past years have been full of hundreds and hundreds of calls and complaints of an increasingly disturbing nature from prisoners and their families throughout the United States. Most describe inhumane conditions including cold, filth, callous medical care, extended isolation sometimes lasting over a decade; use of devices of torture, harassment and brutality.

I have received vivid descriptions of four-point restraints, restraint hoods, restraint belts, restraint beds, stun grenades, stun guns, stun belts, tethers, waist and leg chains and something called an air taser. These reports of the deteriorating mental health of those kept in extended isolation are very disturbing. So much so that it is often other prisoners who write to me appalled at the treatment of the mentally ill in the cages near them. They report mentally ill prisoners screaming ceaselessly often with no attention being given to them other than overuse of psychotropic drugs.

The use of extended isolation has been a growing concern for many prison activists, both inside and outside the walls. The reports coming in about the use of devices of torture have largely been from isolation units where there are few witnesses. In New Jersey, prisoner Ojore Lutalo has been held in the Management Control Unit in total isolation since February 4,1986. He has never received explanation for this. He is let out for an hour and a half every other day. He has basically been told that he is being kept in sensory deprivation because of what he "could do if he wanted to". He has never been charged with an infraction. Ruchel Magee lived under these conditions in California for more than 20 years. Russell Shoats has been living in various Pennsylvania isolation units for 17 years.

There are thousands of others as well. The monitoring that the American Friends Service Committee has done leads us to believe that approximately 10 per cent of the US prison population lives in extended enforced isolation. The prisoners tell me that the silence is eerie and that the conditions of confinement are torture. In the "more progressive units," you may be allowed into a bare concrete yard for exercise twice a week. Mail and reading material are censored. When you leave your cage, you are strip-searched which often includes a pointedly humiliating anal probe. You are shackled around your waist and handcuffed. I've received some reports that isolation prisoners are sometimes brought to the rec yard in shackles which remain on during the duration of this supposed "recreation." Prisoners tell me that they remain constantly on the alert for their own mental and physical deterioration.

Many of us trace the development of control units to the tumultuous years of the civil rights movement when many activists found themselves in US prisons. Sensory deprivation as a form of behavior modification was used extensively with imprisoned members of the Black Panther Party, Black Liberation Army formations, Puerto Rican 'independentistas', member of the American Indian Movement (AIM), and white radicals. In later years we found jailhouse lawyers, Islamic militants and prisoner activists placed in extended isolation. It is no surprise that Ojore, Ruchell and Russell Maroon Shoats are all connected in some way to either the Panther or BLA formations. In 1978, Andrew Young who was the US Ambassador to the United Nations, noted the existence of US political prisoners. With the exception of the recently released Puerto Rican political prisoners, those folks are still in prisons throughout the country over 20 years later. Oscar Rivera Lopez, a Puerto Rican political prisoner, has lived in isolation for years in one of the worst federal prisons at Marion, Illinois. The recent racial profiling that has been so much in the news is something we saw in New Jersey in 1972 when Sundiata Acoli, Assata Shakur and Zayid Muhammad were stopped by State Troopers. Sundiata is now in his sixties and he's still in prison as a result.

Right now, the latest explosion filling the isolation cages include youth of color imprisoned as a result of the racist crack-cocaine laws. And of all the people that I've seen in these units over the years, these youngsters are the 'most ill-prepared for the torment of endless isolation, harassment and brutality. Current efforts to expand the solitary confinement population involve the alleged spread of gang problems in US prisons. While most of us working for prisoner rights know gangs exist in prisons, we also know this problem is sometimes created and often enhanced by prison authorities. In New Jersey, the Department of Corrections recently built a 720 bed gang unit--supermax style. I have been monitoring New Jersey prisons for 23 years. Although New Jersey has prison gangs, it has never had a gang problem. This trend is being repeated throughout the country, resulting in the increased building of supermax prisons.


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I've been told by Corrections personnel that the national move to expand the use of isolation is fostered loosely by the guard unions. These unions are contributing heavily to the political campaigns of law and order candidates. Guards reportedly feel that these types of units provide a safe working environment. I believe that isolation units also provide them with a place in which to engage in unwitnessed torture.

Couple all of this with sexual abuse, the use of prison labor, people dying under privatized medical care and shocking treatment of people being held in INS-detention centers and you have a growing picture of US violations to United Nations Treaties and Covenants.

In many areas of the country, mostly in inner cities, young people tell me that the police feel like an occupation army--as if inner cities were militarized zones. They feel that the courts are used as a feeder system to filter young blacks and Latinos into prisons where those bodies are suddenly worth a fortune. I've heard people say that the criminal justice system doesn't work. I've come to believe exactly the opposite--that it works perfectly as a matter of both economic and political policy. This is no accident.

Add to the mix the UN Treaty positions on the racially biased death penalty, the physical abuse of women in prisons, abuse of the mentally ill, abuse involving prison labor, involuntary human scientific experimentation, violation of children's rights and your picture of US violations continues. All of those practices go on daily and they fly in the face of the International Treaties and Covenants to which the US is a signatory.

In 1996, The World Organization Against Torture contacted me and asked of me two things. Would I sit on their Board of Directors and would I contribute to the report they were readying called "Torture in the United States: the Status of Compliance by the US Government with the International Convention Against Torture". As a result, I've had the opportunity to read the Convention Against Torture (CAT). And then I read my daily mail. There is no doubt that the US uses devices of torture with impunity. We find much the same discrepancy between theory and practice when we read the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), the UN Covenant on the Minimum Standard Treatment of Prisoners, the UN Declaration of Human Rights, the UN Standard Minimum Rules for the Administration of Juvenile Justice, the International Covenant on Civil and Political Rights and a dozen other international or regional treaties. United States prison practices regularly violate them all.

Recently two US judges sentenced two people to life in solitary confinement--an unprecedented dictation of the conditions of imprisonment. US groups such as the AFSC, the National Lawyers Guild, California Prison Focus and many other groups and individuals joined international groups in expressing their opposition to and concern about these units. Although litigation concerning control units has been sporadic and not too promising, there have been some sucesses, including a ruling last year in New York awarding a prisoner 6 million dollars because of his enforced confinement in extended isolation.

There is no way to look into any aspect of prison or the wider criminal justice system in the US without being slapped in the face with the racism and white supremacy that prisoners of color endure. There is often little hesitation on the part of Departments of Corrections to acknowledge that guards who are Klan members are active in prisons. Sadly, human rights violations go even further. I've had ample evidence of being under surveillance. I have had a client picked up by the Essex County Sheriff's Department in Newark and questioned about me. The California Department of Corrections has also named me as a subversive. Even advocacy on behalf of prisoners is suspect to government agencies.

According to Amnesty International, Human Rights Watch, The World Organization Against Torture and Prison Watch Internationale (out of Paris), there is a persistent and widespread-pattern of human rights violations in the USA. The American Friends Service Committee has contributed to each of those reports during these past two years. Amnesty goes on to note that international human rights standards exist for the protection of all people throughout the world, and the USA has been centrally involved in their development. While successive US governments have used these international standards as a yardstick by which to judge other countries, they have not consistently applied those same standards at home.


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Prisons are currently one of the largest growth industries in the United State today. The use of extended isolation is part of that growth pattern. The Prison Industrial complex now houses more than 1.8,million people in state and federal prisons. That number is not reflective of children's facilities, immigration detention centers or municipal lockups.

Twenty-three years ago, if you had interviewed me I would have fought any implication of torture in the United States. I would have fought the notion of US political prisoners. I would have fought any notion of a prison system that looks suspiciously like the system of slavery.

I believe that in the United States' criminal justice system, the politics of the police, the politics of the courts, the politics of the prison system and the politics of the death penalty are a manifestation of the racism and classism which seems to govern so much of the lives of all of us in the US. Every part of the criminal justice system falls most heavily on the poor and on people of color, including the fact that slavery is still permitted in prisons by the 13th amendment of the US Constitution. Although prison labor is not a focus of this dialogue, involuntary prison slavery is real.

If we dig deeper into the US practices that I've talked about, the political function that they serve is inescapable. Police, the courts, the prison system and the death penalty all serve as social control mechanisms. How they function also fits the United Nations definition of genocide. The economic function they serve is equally as chilling. Many people with whom I work believe that prisons are a form of neo-slavery.

Prisons reflect both the structure of society and the nature of the struggle against that structure. The wall of silence that has been built around prisons and prisoners has got to be broken down. What I have described is a conscious attempt to physically, mentally and spiritually break down millions of people, and for the most part it is going on unchallenged. As an activist it is my job to expand the level of popular understanding of what is happening in this country's justice system and make it relevant to the lives of the people we know and touch. We need to put a human face on those people living so alarmingly out of sight of those of us on the outside. We need to press Congress to exercise its oversight authority over the Bureau of Prisons. We need to press the state criminal justice systems that operate these places to examine their ability to continue functioning as they have. We need to call for a zero tolerance brutality policy.

In order to do this, we need lawyers to give more sufficient attention to the Torture and Race conventions, as well as other international law. Lawyers have been dealing with racial, ethnic and gender discrimination--using domestic remedies, but have been reluctant to recognize that international standards also apply. There are limits to what domestic approaches can do in the current environment, and the use of international standards can help us overcome these barriers. In terms of immigration law, judges are already receptive. We have a Congress and a Supreme Court that are cutting back on civil rights, poor people's rights, reproductive rights, prisoners rights, criminal justice reform and many otheir areas. Our gains in these areas have been under siege, and we now need to reach an understanding on how new sources of law and new sources of advocacy based on international standards and mechanisms can help.

The fact that this country has drafted and signed the Covenants isn't an end. Our obligations go much further and lawyers can learn how to press those obligations. It is important for us to weave international human rights law and language into our advocacy efforts in every way we can. We are in the foundation-bulding stage of helping to make international human rig hts law a more effective part of the fabric of US law. Sometime between now and the end of this year, for the first time, international attention will be paid to race and ethnic discriminaUon in the United States. As part of the Convention on the Elimination of Racial Discrimination, each signatory state agrees to report on how their state is complying. The US report as well as rebuttals to the US report will occur at that time. Those rebuttals could be made even stronger had we been able to include successful criminal justice litigation using internationa law.

The use of international standards in domestic litigation will be an educational process for both the courts and the public as to why such arguments are being made. Even if judges reject the arguments, I believe that we would be in a position to slowly change public opinion on the need for additional standards of argument.

I don't have any great expertise on the UN Treaties and Covenants. The World Organization Against Torture does, and is happy to advise on relevant cases and I can offer listings of activists throughout the country who are dealing with these cases. I do have expertise on the need for litigation in ongoing struggle. I've been part of the struggle in the US for the past 35 years. I have seen the horror that the US government can do. I have never seen anything like what I am seeing now in US prisons. My soul is shaken by what I read in my daily mail. I have spent time with US political prisoners. I have spent time with people who have endured torture in US prisons. The work isn't easy. There are times it isn't even rewarding. It is, however, completely necessary. There isn't an advocate in the country that isn't in desperate need of progressive lawyers. And there aren't any progressive lawyers who aren't in desperate need of educated support from their peers.

Thank you.




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