Stakeholder Reports
The issue of solitary confinement on death row has been discussed throughout the US UPR. However, in the 2010 main Stakeholder Report, AI was cited only in reference to the conditions
of the supermaximum prisons in the US,85 and USHRN was cited regarding its reference to
‘prisoners who endure solitary confinement’ generally in the criminal justice system.86
However, in the Death Penalty Annex to its individual submission, USHRN provided further detail about what solitary confinement on Texas’ death row entails. It asserted that inmates at the Polunsky Unit ‘eat alone, exercise alone and worship alone’, noting that the only form of ‘[c]ommunication between prisoners on death row [is] accomplished by yelling between cells [which] is extremely difficult’.87 Furthermore, it stated that ‘[t]he conditions on Texas’ death row
are harsher than those found in many of the nation’s highest security prisons and segregation
80 Death Penalty Information Center, ‘Searchable Execution Database’ <https://deathpenaltyinfo.org/views-
executions?exec_name_1=&sex=All&sex_1=All&federal=All&foreigner=All&juvenile=All&volunteer=y> accessed 24 August 2018.
81 Rhonda Cook, ‘Georgia Inmate Steven Spears is Executed Willingly’ The Atlanta Journal-Constitution (Atlanta, GA, 16
November 2016) <www.myajc.com/news/news/local/condemned-man-explains-why-he-wants-to-die/ns84n/> accessed 24 August 2018.
82 J C Oleson, ‘Swilling Hemlock: The Legal Ethics of Defending a Client Who Wishes to Volunteer for Execution’ (2006) 63 Wash
& Lee L Rev 147, 226.
83 The White House of President Barack Obama, ‘Remarks by the President at the NAACP Conference’ (14 July 2015)
<https://obamawhitehouse.archives.gov/the-press-office/2015/07/14/remarks-president-naacp-conference> accessed 24 August 2018.
84 Ibid.
85 Stakeholder Report 2010 (n 18) para 35. 86 Ibid para 45.
87 United States Human Rights Network, ‘United States Universal Periodic Review Stakeholder Submission Annex 5 Death
Penalty’ (2010)
<http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/USHRN_UPR_USA_S09_2010_Annex5_Death%20Penalty%20J oint%20Report%20USA.pdf> para 17 accessed 24 August 2018.
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units’,88 and only the ‘best behaved’ inmates get to spend two hours outside of their cell a day,
where they ‘are ordinarily given access to small indoor or outdoor “cages”’.89 For those inmates
considered to be badly behaved, usually those with mental health issues, they ‘are allowed
outside of their cells only three to four hours per week.’90 USHRN had provided evidence of
solitary confinement on death row in the US, but, as it was an Annex document to the USHRN’s individual submission, it was not cited in the final report and it is very unlikely that member states would have read this individual document. This is further evidence of the beneficial impact thematic Stakeholder submissions could have, as one Stakeholder could have used its individual submission to provide detailed information on solitary confinement within the death penalty, increasing the chance of this issue being referenced in the main
Stakeholder Report.91
In the 2010 UPR, all other references to solitary confinement were in relation to prisons generally, and not to death row specifically. However, a number of important points were raised that are also relevant to death row. For example, HRW focused on mental illnesses and solitary confinement. It noted in its individual submission that ‘in recent years, prison officials have increasingly turned to solitary confinement (or segregation or supermaximum security confinement) as a way to manage prisoners deemed difficult or dangerous, including many
with mental illness’.92 In fact, HRW found that, generally across the prison system, ‘25 percent
of men in solitary confinement in Washington State have a serious mental illness; in Georgia 33 percent of men and 67 percent of women in solitary confinement have a serious mental
illness, and in Colorado 30-35 percent of all prisoners have a serious mental illness’.93
This further links to the conditions on death row and access to healthcare. HRW noted in its individual submission that ‘[t]he conditions of social isolation, high security controls, abnormal environmental stimulus, and extremely limited recreational or educational opportunities that
characterize solitary confinement can exacerbate mental illness or prevent recovery’.94 Adding
to this, studies have shown that ‘the indefinite use of solitary confinement to hold prisoners exacerbates or in some cases generate mental illness in men living under those conditions for
long stretches of time’.95 In relation to this, HRW provided a recommendation:
88 Ibid para 20. 89 Ibid para 19 90 Ibid
91 See, chapter 7.2.2.
92 Human Rights Watch, ‘United States Universal Periodic Review Stakeholder Submission’ (2010)
<www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS9.aspx> para 7 accessed 24 August 2018.
93 Ibid.
94 Ibid para 7(a).
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The US should not hold any prisoner who has or develops symptoms of a serious mental illness under conditions of solitary confinement for more than a brief period of time; and should carefully monitor the mental health of all prisoners in solitary confinement to detect any deterioration in mental health [and the US] should ratify ICESCR and CRPD.96
No similar recommendation was made by the UN member states at the UPR, meaning that no response to this was required from the US. If the Stakeholders could ask advance questions, as this thesis argues they should, this may have been addressed by the US,
allowing follow-up work to be carried out according to the response received.97
Advance Questions and Recommendations
During the 2010 UPR, Sweden provided an advance question, asking the US to ‘elaborate on the measures it is taking to ensure the full enjoyment of human rights persons deprived of their liberty, including by way of ensuring treatment in maximum security prisons in conformity with
international law?’98 Furthermore, during the interactive dialogue, ‘Algeria noted that prison
overcrowding was the norm and that prisons housed 60 per cent more inmates than they had been designed for’.99 Moreover, ‘Belgium noted with regret that the death penalty was still
applied by some 35 states [and] expressed concern at the situation in the prison system, including violence against detainees; prison overpopulation and overrepresentation of some
ethnic groups’.100 The US did respond to these questions and comments during the interactive
dialogue, stating that it ‘is committed to meeting its obligations under both international and domestic law for proper treatment of persons detained or incarcerated in the criminal justice
system, including those in maximum security facilities’.101 However, from the consideration of
solitary confinement on death row in section 6.2, it is clear that the US falls short of its obligations under international law. The US should have been held to account through a specific follow-up recommendation by Sweden, Algeria, or Belgium, but this did not happen,
and there were no recommendations made in 2010 on solitary confinement.102
96 HRW, ‘Stakeholder Submission’ (2010) (n 92) para 7(c). 97 See chapter 7.2.1.
98 UNHRC, ‘Advanced Questions to the United States of America – Addendum 1’ (2010)
<www.ohchr.org/EN/HRBodies/UPR/Pages/USIndex.aspx> accessed 24 August 2018.
99 Report of the Working Group 2010 (n 39) para 17. 100 Ibid para 43.
101 Ibid para 72. 102 See, chapter 7.3.2.
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