The United Nations (U.N.) International Independent Expert Mechanism to Advance Racial Justice and Equality in the Context of Law Enforcement visits the United States today from 24 April – 5 May 2023. One of the Expert Mechanism’s objectives during this visit is to “offer recommendations to support the Government’s efforts in combating structural and institutional racism, the excessive use of force, and other human rights violations by law enforcement and the criminal justice system against Africans and people of African descent.”
In the United States, people of African descent and other people of color are subjected to police brutality that terrorizes ordinary civilians and, if incarcerated, are more likely to experience prison conditions that may amount to torture. In line with its commitments under international law, the Biden administration must prioritize addressing this urgent human rights crisis.
The Militarization of the Police
In the United States, people of color are disproportionately harmed, killed, and threatened by militarized police violence – a form of violence that greatly expanded after the 9/11 terrorist attacks. Even when engaged in peaceful protest, Black people and their allies are often confronted by police and federal forces wearing militarized riot gear and riding in armored vehicles, wielding tear gas, rubber bullets, and stun grenades. This police militarization reinforces the longstanding association of blackness with criminality in the United States. This association manifests across all levels of interactions between Black Americans and law enforcement and the criminal justice system: Black Americans are disproportionately subjected to “stop and frisk” policies; and they are arrested, convicted, sentenced (and sentenced to harsher punishments), and incarcerated at higher rates than White people who commit similar crimes. And police killings of unarmed Black Americans exacerbated and enabled by police militarization, are so high that, according to one study, “[f]or young men of color, police use of force is among the leading causes of death.”
Police militarization involves the perpetual infliction of or threat of violence against civilians in everyday life, which meets the threshold for many definitions of terrorism. Military-grade technologies cause serious and lasting physical injuries and trauma to victims. One Black man who participated in a peaceful protest in Minneapolis in the summer of 2020 suffered a “fractured nose, a fractured forehead, many tiny breaks around his left eye socket and cheek bone, [and] a ruptured eyeball” from a stun grenade thrown by police. This violence, alongside institutionalized racial injustice, places all people of color at risk of potential arbitrary police brutality and discriminatory criminal justice practices. Militarized police violence communicates to people of color the message that they are not safe, even when engaging in legally protected peaceful protest. This creates the “intrusion of fear into everyday life” that scholar Michael Walzer argued was one of the central moral wrongs of terrorism.
Terrorism is also defined as motivated by the pursuit of a political or ideological agenda, and the increasing militarization of policing in black and brown communities is often ideological. Regardless of the motives of individual law enforcement officers, the violent impact and arbitrary use of police militarization on people of color stems from (and reinforces) the criminalization of blackness that has its roots in the white supremacist ideologies of slavery and Jim Crow.
Recognizing that police militarization is a form of terrorism is crucial to recognizing the severity and scale of human rights violations suffered by people of color in America.
The Biden administration must take steps to acknowledge and address police violence as a form of terrorism. Recent legislation that would increase transparency about police purchases of military equipment is a promising first step, although past efforts, such as a bipartisan police reform bill in 2021 that would have curbed police militarization, failed due to lack of support from Republican senators.
But the vulnerability of people of color to human rights violations at the hands of law enforcement is only part of the picture: Because Black Americans are incarcerated at disproportionately higher rates than White Americans due to entrenched forms of institutional and structural racism in the criminal justice system, they are disproportionately vulnerable to torture in American prisons and jails.
In Texas, prisoners are engaged in a hunger strike protesting solitary confinement. A jail in Mississippi is the subject of numerous allegations of the sexual and physical assault of inmates. Last year, inmates in Alabama went on strike, a prisoner died in solitary confinement in Louisiana, three officers at Rikers in New York attacked an inmate, and a report found that male prison officials assaulted women inmates in at least two-thirds of U.S. prisons.
These are not cases of “bad apples,” or a few poorly run prisons. Instead, these cases are indicative of the widespread systematic torture of inmates in U.S. prisons through the use of solitary confinement, the toleration of sexual assault, and the combined impact of mass incarceration and the deprivation of basic human needs including food, warmth, and human contact. These intentional practices and policies inflict severe physical and psychological pain and suffering on inmates that may meet the definition of torture.
Nearly 50,000 people are held in prolonged solitary confinement in U.S. prisons. In some cities, the majority of people in solitary confinement are people of color. Human rights organizations agree that solitary confinement is torture, and there are decades of evidence of its devastating effects on victims. Yet, despite numerous legal challenges, solitary confinement continues to be used in U.S. prisons and jails. The persistent refusal of U.S. courts and political leaders to acknowledge solitary confinement as a form torture represents an intentional choice to inflict torture on U.S. inmates, the majority of whom are people of color.
But even inmates not placed in solitary confinement do not escape torture in U.S. prisons. The intentional toleration of sexual assault, and the combination of mass incarceration and degrading and dehumanizing prison conditions combine to inflict severe physical and psychological pain and suffering.
Sexual assault (perpetrated by other inmates and by guards) is so common in U.S. prisons that it is the subject of jokes and threats by police officers and is referenced in popular culture. It is taken for granted that inmates might be raped and abused. And, as with solitary confinement, prison sexual assault is rarely described as torture, even though sexual violence is a recognized form of torture. Instead, victims of prison sexual assault are often disbelieved and mocked.
But the sexual assault of inmates is not inevitable. It doesn’t “just happen.” The prison conditions that make inmates vulnerable to sexual assault are the result of intentional choices. Funding for prisons, the design of prison bathrooms, the placement of cameras, staffing levels, access to medical treatment, and reporting mechanisms all affect inmates’ vulnerability to sexual assault. Sexual abuse is therefore common in American prisons and jails because it is allowed to occur. The toleration of sexual assault reinforces the belief that sexual assault just happens, and further entrenches degrading attitudes toward victims of prison sexual assault.
Mass Incarceration and Prison Conditions
The deplorable conditions in many American prisons are well documented: inmates routinely experience overcrowding and are denied access to adequate medical care, food, warmth, air-conditioning, and contact with friends and family. Even prior to the rise of mass incarceration, prison conditions such as these were the subject of protests during the 1960s and 1970s. Yet, despite decades of activism, little has changed. Taken individually, the conditions described above don’t seem like forms of torture. But the combined impact of these conditions is a form of torture. The combination of poor medical care, a lack of heating and air conditioning, overcrowding, exposure to violence and sexual assault, and restrictions on communication with friends and family causes suffering and isolates inmates. As with the toleration of sexual assault, these prison conditions are the result of strategic choices and reveal the political and social indifference to the ongoing torture of prison inmates.
People of color are disproportionally represented in U.S. jails and so, while all inmates are vulnerable to torture, Black Americans are disproportionately vulnerable to torture because of the multiple ways in which institutional and structural racism permeates every aspect of the criminal justice system. This is a human rights crisis and a gross violation of America’s commitment to the prevention of torture.
Understanding the scale and severity of human rights violations in America requires recognizing how all levels of the criminal justice system – from police stops to sentencing and incarceration – are structured by entrenched institutional racism that inflicts a form of terrorism and torture on Black Americans and people of color. Identifying the human rights violations resulting from this institutional racism as terrorism and torture is a necessary first step toward the Expert Mechanism’s goal in providing recommendations for the Biden administration to begin to address the problem. Failing to acknowledge the scale and severity of these human rights violations would demonstrate a serious moral disregard for the ongoing suffering of people of color and African descent. Promoting American values abroad requires first upholding them at home.