For the fourth time in the past year, the U.S. state of Oklahoma has issued a stay of execution for Richard Glossip, an almost certainly innocent man wrongfully convicted for contracting the murder of his boss in 1997. Beyond serious questions of the man’s guilt, his multiple brushes with death in such a limited period of time are the equivalent of state-sanctioned mock execution, prohibited under international torture conventions and under U.S. law.
Glossip was convicted of murder-for-hire 18 years ago after Justin Sneed, the man who confessed to the killing, claimed Glossip had hired him to do it, despite a total lack of evidence connecting Glossip to the crime. Sneed received a life sentence without parole in a medium-security prison, while Glossip was sent to death row based entirely on Sneed’s testimony.
Despite how crucial Sneed’s testimony was in convicting Glossip, the courts have largely overlooked the fact that he gave not one but eight different accounts of what happened the night Barry van Treese was murdered.
In recent years a number of people have come forward to say that Sneed’s fingering of Glossip lacks any credibility, including former cellmates who claimed that Sneed had boasted of getting out of a death sentence by selling out an innocent man. Even Sneed’s daughter claims that her father had lied about Glossip’s involvement in the crime, stating in a clemency letter last year that he would recant if it wasn’t for his own fear of being executed:
For a couple of years now, my father has been talking to me about recanting his original testimony. But has been afraid to act upon it, in fear of being charged with the Death Penalty, and not be here for his children. My father has no reason to do so as a favor to Richard, as him and Mr. Glossip have no relationship and have had no communication in the last 17 years. I feel his conscious is getting to him. His fear of recanting, but guilt about not doing so, makes it obvious that information he is sitting on would exonerate Mr. Glossip. I’m sure if he felt safe that he would not lose his Plea Agreement, he would give new and truthful testimony, much different that his Testimony 17 years ago. He has asked me several times to look into what the legal ramifications would be to his own case if he recanted.
Due to the massive amount of doubt surrounding Glossip’s conviction, his case has garnered worldwide attention, including from Pope Francis who on Wednesday urged Governor Mary Fallin to commute his death sentence and nearly 250,000 signers of a petition calling for his release. His supporters claim that his innocence makes his incarceration a gross violation of human rights, compounded by the multiple close calls he has had with the Oklahoma death chamber.
These brushes with death are described in a timeline of his case compiled by local Tulsa TV channel KJRH:
May 28, 2014 – Glossip’s execution date is set for Nov. 20, 2014.
Oct. 13, 2014 – Oklahoma Attorney General Scott Pruitt says the state does not have the drugs on hand or the medical staff prepared that is needed to carry out the state’s upcoming executions.
Oct. 24, 2014 – Stay of execution granted for Glossip and two other Oklahoma death row inmates
Oct. 24, 2014 – A state board voted unanimously not to recommend clemency for Glossip
Nov. 20, 2014 – Date Glossip was to be executed
Jan. 26, 2015 – State Attorney General Scott Pruitt asks for stays of execution for three death row inmates, including Glossip.
Jan. 26, 2015 – Application for stay of execution filed with United States Supreme Court. Glossip and two other inmates filed the application.
Jan. 28, 2015 – Supreme Court takes up inmates’ application for stays, pending final disposition of the case.
Jan. 28, 2015 – Glossip meets face-to-face with Sister Helen Prejean at the law library inside Oklahoma State Penitentiary.
Jan. 29, 2015 – Date Glossip was to be executed.
Aug. 10, 2015 – Actress Susan Sarandon takes to Twitter to fight against Glossip’s execution. She and Prejean rebutted tweets sent out by a spokesperson for Gov. Mary Fallin’s office.
Aug. 28, 2015 – The U.S. Supreme Court rejects a request for a new hearing. Scheduled execution will proceed.
Sept. 14, 2015 – Glossip’s attorneys claim to have new evidence days before client is scheduled to die.
Sept. 16, 2015 – Hours before his execution was to be carried out, anappeals court issued an emergency request for a stay for two weeks until Sept. 30.
As journalists Ziva Branstetter and Cary Aspinwall described the scene yesterday at the prison where Glossip was scheduled to die at 3:00 PM,
Outside the white walls of the Oklahoma State Penitentiary, Glossip’s family and friends thought he was already dead. Reporters heard them crying out in anguish when they learned the Supreme Court had denied Glossip’s request for a stay.
It turned out Oklahoma didn’t have the right lethal drug to carry out the last step of his execution. Instead of potassium chloride, which stops the heart, the prison had potassium acetate.
“That’s just crazy,” Glossip said, via speakerphone held up as reporters crowded around. “Nobody has really said much of anything.”
Glossip has had four stays of execution, including on Sept. 16, the day he was to be put to death. The stay on Wednesday “is the most stressful it has been.” He had been moved to a holding cell and was not taken into the death chamber.
“I’m sitting there watching TV trying to keep up with the news and find out what’s going on,” he said.
So, basically, because the state of Oklahoma purchased the wrong drug to use on Glossip he got one more stay of execution with a new date to die in 37 days’ time. But as Sister Helen Prejean noted in a tweet yesterday following the Governor’s stay of execution, “If Oklahoma can’t be trusted to buy the right lethal injection drugs, how can anyone trust them to convict the right person?”
Beyond serious questions regarding the basic competence of Oklahoma state officials, yesterday’s stay of execution raises grave issues over the state’s – and by extension, the U.S.’s – compliance with the UN’s Convention Against Torture (CAT), which defines the crime of torture in Article 1:
[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
As a state party to the CAT, the United States has adopted domestic legislation to ensure compliance with the treaty’s provisions. The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, defines the crime of torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
“Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) 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;
(C) the threat of imminent death.
Considering the fact that Richard Glossip has now faced the threat of imminent death not once, not twice, but four times, it is clear that his treatment violates the letter and spirit of both international conventions and domestic statutes. It is effectively a mock execution, which is even prohibited under U.S. military interrogation and detention guidelines.
The likelihood that he is in fact innocent only compounds the tragedy and seriously calls into question the United States’ commitment to basic human rights.
For more on the Glossip case, click here.
To add your name to the petition demanding that his execution be stopped once and for all, click here.
On the heels of a scathing report issued by the United Nations detailing the U.S. government’s lack of compliance with its international obligations on torture, several grassroots campaigns are increasing pressure on the United States to bring its human rights practices more closely in line with international norms.
In issuing its “concluding observations” on the U.S. torture record following the periodic review of U.S. compliance last month, the United Nations Committee against Torture noted that the U.S.’s lack of a specific law at the federal level prohibiting torture is out of step with article 1 of the Convention against Torture (CAT).
The Committee also regretted that the U.S. maintains a restrictive interpretation of the provisions of the CAT, particularly regarding the concept of “prolonged mental harm” related to torture that is prohibited under the treaty. In its concluding observations, issued on November 28, “the Committee recalls that under international law, reservations that are contrary to the object and purpose of a treaty are impermissible.”
The Committee expresses its grave concern over the extraordinary rendition, secret detention and interrogation programme operated by the U.S. Central Intelligence Agency (CIA) between 2001 and 2008, which involved numerous human rights violations, including torture, ill-treatment and enforced disappearance of persons suspected of involvement in terrorism-related crimes. While noting the content and scope of Presidential E.O. 13491, the Committee regrets the scant information provided by the State party with regard to the now shuttered network of secret detention facilities, which formed part of the high-value detainee programme publicly referred to by President Bush on 6 September 2006.
The Committee further regretted “the lack of information provided on the practices of extraordinary rendition and enforced disappearance; and, on the extent of the CIA’s abusive interrogation techniques used on suspected terrorists, such as water-boarding.” In this regard, it noted particular interest in the long-stalled declassification process of the U.S. Senate Select Committee on Intelligence’s report on the CIA’s detention and interrogation program.
The panel called on the Obama administration to release the Senate report on CIA torture “in the most complete and comprehensible form possible.” This comes as Senate Democrats have accused the White House of trying to censor key portions.
Other issues addressed by the UN included the treatment of migrants, including children held in “prison-like detention facilities,” as well as the “widespread prevalence of sexual violence, including rape, in prisons, jails and other places of detention by staff and by other inmates.” The Committee also expressed concern over “the notable gaps in the protection of juveniles in the State party’s criminal justice system.”
Concern was also raised over the high number of preventable deaths of inmates that take place in local jails and prisons in the United States. As the Committee noted,
958 inmates died while in the custody of local jails during 2012, an 8 percent increase from the 889 deaths in 2010. During the same year State prison deaths remained stable with 3,351 reported deaths. The Committee is particularly concerned about reports of inmate deaths occurred as a result of extreme heat exposure while imprisoned in unbearably hot and poor ventilated prison facilities in Arizona, California, Florida, New York, Michigan and Texas (arts. 2, 11 and 16).
To talk more about the UN’s findings, Dr. Jens Modvig, a co-author of the report, appeared on Democracy Now this week. Among other issues, Modvig discussed the topic of police brutality in the USA and the significance of the parents of Michael Brown – the unarmed black youth gunned down by a white police officer in August – testifying to the Committee against Torture.
The Committee “takes an interest in the measures that United States has in place to control excessive use of force and police brutality,” Modvig said. “When we look at the statistics,” he pointed out, “we heard from the United States delegation that during the last five years, a little over 300 hundred cases have been criminally prosecuted of police officers.”
We asked for the resource of these prosecutions but we have not received this information. So, where there’s still doubt as to whether the mechanisms to hold police officers accountable for excessive use of force, police brutality and even police shootings are probably in place. Another issue of importance is whether there is independent oversight bodies that can check up on the way that the power’s administered in the law enforcement. And also here we have some doubts whether police review boards are sufficiently independent. So, these are some of the concerns that committee has expressed vis-a-vis the United States Delegation.
In an effort to increase the level of accountability in the U.S. when it comes to widespread police violence, demonstrations have been taking place across the country, with protests picking up in recent days in response to the failure to indict a white cop in New York who choked to death an innocent black man by the name of Eric Garner last summer.
Civil rights leaders are also calling for a national march on Washington to demand that the federal government intervene in prosecutions of police officers facing criminal charges. The march will take place Saturday, Dec. 13, and the families of both Eric Garner and Michael Brown will attend, according to the Huffington Post.
“We’ll be in Washington, demanding redress,” Al Sharpton said, speaking at the headquarters of the National Action Network in Harlem. He was joined by representatives of the NAACP, the National Urban League and 14 other groups, all of whom are mobilizing for the march on Washington.
When it comes to the issue of CIA torture and the Obama administration’s official policy of impunity that shields human rights abusers from accountability, civil society groups from across the U.S. are organizing a week of grassroots action to highlight CIA crimes, as well as violations of privacy rights being carried out by the National Security Agency.
According to the call to action, “Vigils, protests, workshops, and other events will start nationwide on International Human Rights Day (December 10th) and conclude on Bill of Rights Day (December 15th).”
Events are currently planned in following cities:
— San Francisco, CA (12/15): http://on.fb.me/1yVv0mq
— Oakland, CA
— San Jose, CA (12/10): http://on.fb.me/1rW0mJs
— Berkeley, CA (12/6): http://on.fb.me/1BhbG5y
— Richmond, CA (12/8): http://on.fb.me/1yjiVDS
— Cleveland, OH
— Washington, DC (12/10): http://on.fb.me/1ysOOOg
— Chapel Hill, NC: (12/15) http://on.fb.me/1FQdujW
— Raleigh-Durham, NC:
. — 12/9: http://on.fb.me/1yjiWry
. — 12/10: http://on.fb.me/1FQcGeM
— Miami, FL
Other grassroots initiatives underway include a petition urging Sen. Mark Udall (D-CO) to submit the Senate Intelligence Committee’s torture report to the Congressional Record. Add your name to the petition here.
Also, the Witness Against Torture campaign will gather in Washington, DC on January 11, 2015, to mark the anniversary of the opening of the Guantanamo indefinite detention facility, also known as “Obama’s Forever Prison,” and the13 years of torture that have taken place there. More information here.
A full year after President Barack Obama’s last major public promise to close the travesty of justice known as the Guantanamo Bay detention center, halting steps towards progress were made this week with a number of developments offering a glimmer of hope for 154 men who remain at the prison camp in an endless state of legal limbo.
The developments come as dozens of human rights groups mobilize for a global day of action today calling for Guantanamo’s permanent closure, an end to indefinite detention policies and the release of the men still languishing in the prison.
On Wednesday, a U.S. federal judge ordered the release of secret video recordings of a hunger-striking Guantanamo detainee being force-fed by his captors. The force-feeding process is a highly controversial practice condemned last year by UN Special Rapporteur on Torture Juan Mendez as a “form of ill-treatment that in some cases can amount to torture.”
The Defense Department had long kept these videos secret. As the Guardian reports:
Before last week, the Defense Department did not even acknowledge that videotapes of its enteral feedings of hunger striking detainees – conducted by inserting a tube into the stomach through the nose – even existed.
But now the US government has conceded that there are 34 videos showing the forcible feeding of one detainee. The analogue video cassettes are part of a broader set of 136 videos showing Dhiab being forcibly removed from his cell by Guantánamo Bay guards bringing the hunger striker to be fed enterally.
District court judge Gladys Kessler, of the Washington DC circuit, rejected an argument from the government that the tapes were irrelevant to Dhiab’s unusual lawsuit, which seeks to get a federal judge to set the conditions of his military confinement, which Dhiab considers amount to torture.
While certainly a positive development, according to a press release on the judge’s ruling by the British human rights group Reprieve, “Judge Gladys Kessler did not require the government to hand over all 136 videos of Mr. Dhiab being subjected to the ‘Forcible Cell Extraction’ process – which has been done to him on average three times a week for a full year.” It is also not clear whether the Defense Department will comply with the ruling.
On Thursday, Judge Kessler urged the authorities to find a compromise that would spare him “the agony of having the feeding tubes inserted and removed for each feeding” and “the pain and discomfort of the restraint chair.” The judge declined to extend the temporary restraining order in Dhiab’s case because of the risk that he would die, saying:
The Court is now faced with an anguishing Hobson’s choice: reissue another Temporary Restraining Order (“TRO”) despite the very real probability that Mr. Dhiab will die, because he has indicated a continuing desire to refuse to eat and/or drink liquids, or refuse to issue the TRO and allow the medical personnel on the scene to take the medical actions to keep Mr Dhiab alive, but at the possible cost of great pain and suffering.
Also on Thursday, the United States House of Representatives voted on an amendment that could help pave the way to ultimately closing the detention facility. It was something of a mixed blessing though, as it failed to close the prison but removed some restrictions on the transfer of detainees. As the U.S.-based rights group Human Rights First explained:
Though the House voted against an amendment proposed by Representative Adam Smith (D-WA) that would have helped shutter the detention facility, the final bill included fewer restrictions on transferring detainees than it has in past years.
“We came out of today’s floor debate with progress toward the ultimate goal of closing Guantanamo,” noted Wala. “There seems to be a bipartisan acknowledgement that Guantanamo has to be dealt with and that the detention facility should and will close one way or another.”
The developments this week provide some added momentum to the “global day of action” today dedicated to closing Guantanamo, marking one year since President Obama restated his promise to close the detention center. As Amnesty International describes the event planned for Washington, DC (at Lafayette Park in front of the White House):
On Friday, May 23, one year after President Obama once again made the case for closing the detention facility at Guantánamo Bay in a speech at National Defense University, Amnesty International, the National Religious Campaign Against Torture, September 11th Families for Peaceful Tomorrows, Witness Against Torture and other groups are banding together in Washington as part of a Global Day of Action to Close Guantánamo and End Indefinite Detention.
In total, demonstrations will take place today in 35 cities around the world calling for Guantanamo’s closure and the end of indefinite detention. A full list of events is available here.
The human rights groups’ sense of urgency has been intensified by new revelations that some Guantanamo detainees who had been thought to have committed suicide were in fact murdered by CIA torturers at a secret interrogation facility site at Guantanamo called “Camp No” or “Penny Lane.”
The revelations were published in Harper’s Magazine last week, including an incriminating document indicating that the men had been tortured to death, rather than having committed suicide. In response, the Center for Constitutional Rights, which represents the families of two of the men who died, issued the following statement:
The new eyewitness account of what happened on the day three men died at Guantanamo adds to the growing body of information strongly undercutting the military’s narrative that the men committed suicide in their cells, and suggesting that the men were instead killed at a CIA-run black site at Guantánamo known as “Camp No” or “Penny Lane.” There has never been an impartial and effective investigation into the deaths, and the heavily-redacted version of the military investigation the government was compelled to release is riddled with inexplicable gaps and inconsistencies. One of those gaps was the document published today by Harper’s, which was apparently deliberately removed from the military’s public report.
The families’ attempt to seek the truth about these deaths was met with dismissal by the district and circuit courts in D.C., on the grounds that even if federal officials had been involved in the homicides, the courts were powerless to grant a remedy. The families have now turned to the Inter-American Commission on Human Rights, which should accept their petition, investigate the violations of international law they have alleged, and uphold their right – and the public’s right – to know the truth about what happened.
To find a demonstration near you to demand Guantanamo’s closure today, click here.
With hunger strikes now underway at U.S. prisons in Cuba and California, U.S. detention policies are once again in the global spotlight, being called a violation of international norms tantamount to torture.
Last week, an international body called on the United States to once and for all close the notorious prison camp at Guantanamo Bay. The OSCE Parliamentary Assembly, which counts the U.S. as one of its 57 member states, adopted a resolution at its Annual Session in Istanbul, calling “for the permanent closing of this detention facility as soon as possible.”
Although generally very soft on the U.S. government and taking pains to avoid criticism of the overall policy of indefinite detention and the torturous force-feeding taking place at Gitmo, the resolution nevertheless reiterates the OSCE PA’s longstanding calls for the closure of this prison and “recommends an increased co-operation between Europe and the United States as regards the concrete implementation of the closing of Guantanamo.”
It was the fifth time since 2003 that the OSCE PA had called for the prison’s closure.
In introducing the resolution, its sponsor Lord Alf Dubs noted that President Obama has indicated that he still believes that Guantanamo should be closed. Dubs drew attention to the hunger strike taking place at Gitmo and noted that it is the responsibility of all countries that have nationals at Gitmo to receive these prisoners. He pointed out that the British government has indicated it would allow Shaker Aamer, a British national unjustly held for 11 years at Guantanamo, to return to the UK, but to this date the U.S. government has refused to release him.
Dubs further noted widespread international criticism of the Guantanamo prison camp, with the International Committee of the Red Cross documenting the profound damage to psychological health posed by indefinite detention, and UN Human Rights Commissioner Navi Pillay raising serious questions about the prison camp’s compliance with international law.
Notably, rather than calling out the U.S. for its human rights abuses, most delegates to the OSCE PA used the opportunity to obliquely praise the United States for its “commitment” to closing the prison camp, with only Belarus strongly criticizing the U.S. government for its failure to do so. (Watch the debate in the original floor language – including English, French and Russian – here.)
Nevertheless, the resolution was adopted overwhelmingly, with the U.S. delegation abstaining.
As this resolution was adopted, a video began going viral depicting the horrific practice of force-feeding at Guantanamo. Based on a leaked document which sets out the military instructions, or standard operating procedure, for force-feeding detainees, the four-minute film made by the human rights organization Reprieve depicts U.S. actor and rapper Yasiin Bey (formerly known as Mos Def), experiencing the procedure.
After four days on YouTube, the video had already received 2.5 million views.
Currently, more than 100 Gitmo detainees are on hunger strike, with more than 40 being force-fed twice a day in gruesome procedures that last up to two hours. Carlos Warner, a lawyer who represents several hunger strikers, told the Guardian in June: “The hunger strike grows for two reasons: the military’s refusal to negotiate with the men in a productive way and because the president has taken no action in spite of his words.”
The practice of force-feeding is at odds with international medical policy on prisoners’ right to refuse nourishment.
In 2006, the World Medical Association, an organization that represents physicians around the world, issued the Declaration of Tokyo, which states: “Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially.”
The American Medical Association has also said that the practice “violates core ethical values of the medical profession.”
Despite these grave concerns over the force-feeding going on at Guantanamo Bay, prison officials at Pelican Bay State Prison in California are now preparing to force-feed thousands of inmates who are on a hunger strike to protest prolonged solitary confinement, as well as other “medieval conditions” in the California prison system.
With originally 29,000 hunger strikers, about 12,000 prisoners being held in two-thirds of California’s 33 prisons have refused meals for the fourth consecutive day in a show of solidarity against conditions at Pelican Bay.
Denied telephone calls, contact visits and education, work or rehabilitation programs, prisoners in the Security Housing Unit (SHU) of Pelican Bay are isolated for at least 22 and a half hours a day in cramped, concrete, windowless cells.
Held under these conditions for more than a decade and some over 20 years, the SHU prisoners began striking on Monday and the protest spread. Californian officials instituted an official state response when the strike entered its fourth day, which includes aggressive monitoring of inmates’ health and possible force feeding.
The prisoners’ five demands include:
1. Eliminate group punishments and administrative abuse.
2. Abolish the debriefing policy and modify active/inactive gang status criteria.
3. Comply with the recommendations of the US Commission on Safety and Abuse in America’s Prisons recommendations and end long-term solitary confinement.
4. Provide adequate and nutritious food.
5. Create and expand constructive programming.
As Amnesty International points out, the practice of long-term solitary confinement is in violation the United States’ international obligations:
While there may be instances where holding prisoners in isolation is appropriate and humane, the use of prolonged, indefinite solitary confinement is a violation of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment found in international human rights law. By violating this prohibition, U.S. authorities not only abuse the rights of prisoners, they undermine the human rights that protect all of us from abuse.
Nevertheless, “more than 3,000 prisoners in California are held in high security isolation units known as Security Housing Units, where they are confined for at least 22 and a half hours a day in single or double cells, with no work or meaningful rehabilitation programs or group activities of any kind,” Amnesty notes.
More than 500 prisoners have spent 10 or more years in the Pelican Bay SHU, with 78 in solitary more than 20 years. While California holds the most prisoners in solitary, the practice is widespread across the United States.
To add your name to a petition in support of the California hunger strikers, click here.
To call for the closure of Guantanamo, click here.
Nationwide actions in support of the California hunger strike can be found at Prisoner Hunger Strike Solidarity.
Laws being adopted across the United States, including in Delaware, Wyoming and Indiana, are bringing the United States closer to respecting international norms in the treatment of children in the criminal justice system.
On June 4, 2013, Delaware Governor Jack Markell signed Senate Bill 9, which eliminates juvenile life imprisonment without possibility of release by providing for new reviews of sentences of all children who are sentenced to more than 20 years in prison.
In February, the Governor of Wyoming signed a law that abolishes life-without-parole sentences for children. The law, taking effect on July 1, 2013, provides that a minor sentenced to life imprisonment is eligible for parole after serving 25 years. The new law further empowers the governor to commute a life sentence imposed on a juvenile to a term of years.
Another bill adopted by the Connecticut House of Representatives in May effectively abolishes juvenile life without parole. For people serving prison sentences for crimes committed when they were 14 to 17 years old, the bill allows for a parole hearing after 12 years in prison or 60% of their sentence.
An Indiana law, spurred by a 2010 case which resulted in 12-year-old Paul Henry Gingerich being sent to an adult prison for 30 years, gives judges new sentencing options for children under 18 in the state’s criminal courts. It goes into effect July 1.
Gingerich’s case garnered international attention and sparked questions about whether children belong behind bars with grown-up offenders. Some noted that the United States stands nearly alone in the world in sending children to adult prisons.
The UN Convention on the Rights of the Child, a treaty that’s been ratified by every country in the world except the United States and Somalia, spells out the basic human rights of children everywhere, noting in particular certain standards that should be applied to children in the criminal justice system:
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
While the U.S. has not subscribed to the treaty and it is therefore not binding on the U.S. government, the Convention falls under the rubric of “customary international law,” defined by Article 38 (1) of the Statute of the International Court of Justice as “General Principles of Law recognized by civilized nations.”
While Gingerich remains in prison awaiting a critical court hearing, his case has already had a profound impact on how juveniles tried as adults may be punished.
The law signed by Indiana Gov. Mike Pence in April gives judges more discretion in keeping young offenders out of the adult prison system and to put them instead into juvenile detention facilities where they can be rehabilitated while serving their sentence.
In Indiana, children as young as 10 can tried as adults. Gingerich was 12 when he was arrested in the shooting death of 49-year-old Phillip Danner of Cromwell, along with Danner’s 15-year-old stepson. The defense argued Gingerich had been bullied into the crime by the older teen.
While Gingerich’s case received substantial attention, it is not unique, with children tried and sentenced as adults in U.S. courts with troubling frequency.
A 2009 report, “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” found that more than half of U.S. states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as seven can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences and placement in adult prisons.
The report noted that the United States stands nearly alone in the world in its harsh treatment of young children:
Punishing young children violates international norms of human rights and juvenile justice, and yet the United States continues to lead the world in both policies and practices aimed at treating young children as adults. The way the United States punishes pre-adolescents who are waived to the adult criminal justice system is of special concern in light of the basic principles of international human rights law. From the U.N. Convention on the Rights of the Child to the International Covenant on Civil and Political Rights, the United States has disregarded international laws and norms providing that children should be treated differently than adults. A number of international laws offer support for increasing the minimum age of criminal responsibility and argue against long, mandatory minimum sentences for children.
Nearly all nations in the world follow both the spirit and letter of these international instruments. As a result, most countries—including those Western nations most similar to the United States—repudiate the practice of trying young children as adults and giving them long sentences. Our research has yielded no findings of any young children elsewhere in the world who are imprisoned for as long as some children in the United States. Moreover, the international community is seeing a trend whereby juvenile punishments are being rolled back, at the same time that certain states in America are increasing the possible array of punishments for children. Ultimately, while international norms do not control the criminal justice policy of the United States, they do signal the extent to which the U.S. is out of step with the global consensus that children should be treated as children.
The recent spate of laws, largely adopted in response to the U.S. Supreme Court decision in Miller v. Alabama which struck down mandatory life-without-parole sentences for children, are a welcome if overdue development. While the U.S. still has a long way to go in developing its human rights legal framework, the ongoing legal reforms are a step in the right direction, and of course, good news for the children serving time in adult prisons.