Contributions > Jonathan Simon

Jonathan Simon
University of California- Berkeley

Dignity or Bust: the Road to Human Rights for Prisoners in the United States

Abstract

A five-vote majority now exists on the Supreme Court in favor of the view that no matter what crime they have been convicted of, and how long they have been imprisoned for, retain their essential human dignity which prison regimes must respect and protect. Thin as this majority is (and it may not last until the publication of this article), their support for a dignity value animating the Eighth Amendment of the US Constitution is the largest legal opening for a human rights approach to prisons to take hold in the United States. It is difficult to imagine the United States Congress, and most state legislatures, currently in the hands of the anti-human rights Republican Party, enacting laws or supporting international treaties that would bring US prisons under human rights charters. This article canvasses recent actions in the lower federal courts, where most of the real meaning of the law for prisons will be worked out within broad tolerances of the Supreme Court, to see how much progress constitutional dignity can make toward to standards reflected in major human rights conventions and especially in the European human rights framework. The article will also examine how prisoners’ own struggle for human rights in prisons through tools of resistance like hunger strikes, could influence the Supreme Court’s Eighth Amendment jurisprudence. Lastly, the article will also analyse for the first time the effects of the control operated by the United Nations over the American prison policies under the Universal Periodic Review.