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California Prisons Are Next For A U.N. Desperately Searching For A Purpose (Forbes.com) October 24, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

As if we didn’t have enough layers of government investigation in the U.S., a United Nations Special Rapporteur on torture says he wants to have a look at California’s prisons to determine whether their practice of solitary confinement violates standards of international law.  Juan Mendez, in his day job a professor of law at American University, says overcrowding and solitary confinement in U.S. prisons today may constitute cruel and unusual punishment or even torture under international legal standards.

But wait just a minute.  How could a United Nations official have any say in what is done in California’s prisons?  How can international law inject itself into domestic operations of the United States?  And how could U.N. or other international standards of torture override U.S. policies about the treatment of prisoners?  These are all important questions since human rights organizations would love to use international law as a lever to do away with capital punishment and change prison policies in the U.S. in ways they have been unable to accomplish through federal and state laws.

The way this works is that an international treaty—sometimes signed by the U.S. as a party and sometimes not—is developed for obvious purposes and then its broad language is pressed in an effort to apply it in unexpected ways.  Here the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into force in 1987 and was ratified by the U.S. in 1994.  Its primary purpose was to limit the use of torture, defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…”  As terrorism came to the center stage in the last 20 years, this is the law debated in Guantanamo and elsewhere as interrogations are carried out to elicit information and prevent additional terrorist acts.

But Professor Mendez would like to use it, and his authority from the U.N. Human Rights Commission, to examine domestic prison conditions in the U.S. which seems like something of a stretch.  Mendez uses his position to ask for “more justification” for putting prisoners into solitary confinement.  But is this really his proper role?  U.S. federal courts are already managing overcrowding in California’s prisons, and state lawmakers are holding hearings this month on solitary confinement.  Although these are important issues, they really seem more like domestic questions of prison policies and conditions than matters of international torture law.  Doesn’t Mendez have bigger torture fish to fry?

Last year a different U.N. Special Rapporteur sent a letter to Sacramento Mayor Kevin Johnson warning the city that their drinking water and sanitation for homeless people were potentially in violation of international human rights standards.  In this case the U.S. had signed, but not ratified, an international treaty and the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation came knocking.  Yes, there is such a person, and she believes she has jurisdiction in Sacramento, California.  After meeting with a community of homeless people, she reported a “lack of access to adequate water and sanitation and adequate housing.”  So what appears to be a local issue in Sacramento becomes now global in scope.

These meddlesome rapporteurs fall under the broad umbrella of global governance, which a lot of people seem to think is a nice thing to pursue in the 21st century.  But I suppose that depends on your view of federalism and which level of government is most effective.  In the U.S., we have generally held that government closest to the people is best and most effective, with less confidence in the state capital, and even less in Washington, D.C. (where Congressional ratings keep finding all-time lows).  So imagine how much confidence we have in U.N. officials from Geneva coming to “help” us with toilets and water for the homeless or solitary confinement in California prisons.

Governor Brown and the U.S. Department of Justice must approve the U.N. Rapporteur’s request to visit California’s prisons.  I hope they will strike a blow for autonomy and federalism, and against global governance, and just say no.

Please click on the link to view the article in Forbes.com:  http://www.forbes.com/sites/daviddavenport/2013/10/24/california-prisons-are-next-for-a-u-n-desperately-searching-for-a-purpose/

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