Tuesday, December 06, 2022

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V. Amend the Constitution to Codify the Wrongs of Mass Incarceration

Of course, even congressional acknowledgment of U.S. wrongdoing in the wartime internment of Japanese Americans did not prevent the United States from violating the human rights of tens of thousands of citizens and residents of Middle Eastern origin after the terror attacks of September 11, 2001. If recognition of mass incarceration as a major human rights crisis is both to support on going efforts to repair and restore the communities most damaged by it, and prevent future turns of our law enforcement and correctional agencies away from the protection of human dignity that must be their central mission, it should ideally lead to new legal settlement that could be invoked in legislatures and enforced in courts. In the United States, that means a constitutional amendment. Those are infamously difficult to obtain, as advocates of the equal protection of women and of balanced budgets (to name but two) have discovered. However, as these two also reflect, efforts to obtain a constitutional expression can provide a powerful organizing and motivating tool for movements. Although there is no amendment in the Constitution ensuring equal rights for women, as was formally considered by the states in the 1970s, courts today legally enforce a constitutional right against gender discrimination in a variety of forms. Likewise, the balanced budget has no constitutional force at the national level, but deficits have been a constraining consideration in American politics for a generation, and have a number of powerful legislative and administrative platforms to recharge themselves.

For the language of a constitutional amendment, the simplest approach would be to adopt the language now in Article 5 of the Universal Declaration of Human Rights:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

This language has been repeatedly endorsed by the United States in the context of international treaties, and a strong legal argument can be made that the meaning of the Eighth Amendment's prohibition on “cruel and unusual punishment” is already coterminous with the meaning of Article 5. However, the European Court of Human Rights has interpreted precisely the same language in Article 3 of the European Convention of Human Rights in a manner significantly more protective of prisoners than that currently available to U.S. prisoners from the Supreme Court.  The language of degrading treatment might be read by the Court to expand protection of prisoners to something closer to the European standard. The language of “treatment” would also extend protection to detainees under civil commitment (in immigration prisons and mental hospitals), who are currently unprotected by the Eighth Amendment.

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