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Working Group on Arbitrary Detention: Preliminary Findings from its visit to the United States of America (11-24 October 2016)

24 October 2016

The United Nations Working Group on Arbitrary Detention was invited by the Government of the United States of America to conduct a country visit from 11 to 24 October 2016.  Three of the Working Group members, Mr. Seong-Phil Hong, Mr. Jose Guevara and Ms. Leigh Toomey, were accompanied by two members of the Working Group’s Secretariat from the Office of the United Nations High Commissioner for Human Rights in Geneva.

The Working Group extends its gratitude and appreciation to the United States Government for inviting it to undertake this visit, and for its cooperation.  In particular, the Working Group met with officials from the U.S. Department of State, the Office of the Special Envoy on Guantanamo Closure, the Department of Homeland Security, the Department of Justice and its Bureau of Prisons, the Health and Human Services, as well as various authorities in Texas, California and Illinois.  The Working Group also recognizes the numerous stakeholders within the country who shared their perspectives on arbitrary deprivation of liberty, including representatives from civil society.  The Working Group regrets that despite its request, it was not granted access to San Ysidro, a major point of entry for immigration in California.  The Working Group attempted to visit this facility on 17 October but was not permitted to enter.  The Working Group also made a request to visit the Homan Square police facility in Chicago, Illinois as it had received serious allegations of arbitrary detention and torture.  This request was not granted and when the Working Group attempted to make an unannounced visit on 22 October, it was refused entry.

The observations we are presenting today constitute the preliminary findings of the Working Group. They will serve as the basis of the forthcoming deliberations between the five members of the Working Group at its forthcoming sessions in Geneva.  This will be followed by a report that the Working Group will officially adopt and submit to the Human Rights Council at its September 2017 session.

The Working Group visited various places of deprivation of liberty at federal, state and local levels, including border patrol locations and immigration detention centres which house children, adults and families; immigration courts; county jails where persons are held in pre-trial detention; large correctional centres and prisons of different security classifications; and centres at which drug treatment is provided and seriously mentally ill inmates are under care. It was able to interview approximately 280 persons who are currently detained. In determining whether the deprivation of liberty is arbitrary, the Working Group refers to the five categories outlined in its Methods of Work, namely: 1) when it is impossible to invoke any legal basis justifying the deprivation of liberty; 2) when the deprivation of liberty results from the exercise of certain rights guaranteed by the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights; 3) when the right to a fair trial has been seriously violated; 4) when asylum-seekers, immigrants or refugees are subjected to prolonged administrative detention without the possibility of an administrative or judicial review or remedy; and 5) when the deprivation of liberty constitutes a violation of international law on the grounds of discrimination of any kind.

The Working Group considers that its visit allowed it to obtain information on issues within its mandate that is broadly representative of experiences with deprivation of liberty across the United States. Given the complex nature of the issues which the Working Group considered during its visit and given the length of the visit, it was not possible to visit more than three states within the United States. 

The Working Group provides its preliminary findings on the deprivation of liberty in the context of immigration, criminal justice, health, and Guantanamo Bay.

Deprivation of liberty in the context of immigration

At present, the United States is, like many countries around the world, facing an influx of asylum seekers and migrants as part of the unprecedented global movement of people across borders.  The challenge is to manage this influx while providing full respect for the human rights of those who seek to enter the United States. 

The Working Group held discussions with individuals in immigration detention from countries such as Afghanistan, Bangladesh, Brazil, Colombia, Cuba, El Salvador, Guatemala, Guinea, Honduras, India, Iraq, Mexico, Nicaragua, Peru and Somalia, both detained individually and as families.

            Mandatory Detention

Legislation passed in 1996 significantly expanded mandatory detention proceedings for migrants pending a decision on their status, individuals with final orders of removal, and individuals who have been convicted of certain criminal offences.  The current level of detained in relation to immigration-related proceedings is estimated at 400,000 persons. Mandatory detention of migrants, especially asylum-seekers, is against international law standards, and detention should be the result of individual assessment and the reasons for detention duly notified to the migrant and given the opportunity to challenge the detention while the detention should remain reasonable in term of its length. The view of the Working Group is that mandatory detention should be abolished.  However, in the meantime, the authorities could reduce the number of individuals mandatorily detained by using greater discretion when choosing to place immigrants in expedited removal proceedings. For instance, authorities could choose to place asylum seekers directly into full asylum proceedings that do not trigger mandatory detention. 

Furthermore, while immigration detention should be civil, i.e. non-punitive, in nature, the Working Group observed during its visits to various immigration facilities that people are being detained under punitive conditions that are often indistinguishable from those applicable to persons subject to criminal punishment.

The Working Group observed that the detention of migrants appears to be implemented as a deterrent to immigration and to the continuation of legitimate immigration claims. Migrants who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability, and subsequently have a record of entry that can be the basis to deny re-entry in future. Moreover, mandatory detention can cause asylum seekers to revoke legitimate claims.  The prosecution of migrants for entry and re-entry to the United States should be deprioritised, so that such individuals are not prosecuted for crimes that relate only to their unauthorised entry into the country, leading to their detention solely for the assertion of the right to seek asylum.

      Need for Individualised Assessment

Detention for immigration purposes should be the exception rather than the rule.  It should be utilised only where strictly necessary after an individualised assessment of the necessity of detention in each case, to prevent flight risk or danger to the community, or to execute a final order of removal after a full hearing in which due process is guaranteed. Until the U.S. Government is able to put an end to mandatory immigration detention, the authorities should interpret mandatory detention to allow alternative forms of custody other than detention, such as case-management based release of individuals into the custody of family members or other sponsors in the community, non-monetary parole and release on recognisance for asylum seekers. The Working Group remains concerned that many “alternatives to release”, such as excessive bond amounts, ankle monitors and electronic monitoring, are not truly alternatives which allow an individual to be released while some affect other human rights such as the prohibition of discrimination and the presumption of innocence.

The current level of persons detained each year demonstrates excessive use of detention that cannot be justified based on legitimate necessity demonstrated in individual cases. In addition, such practice of over-detention has an economic dimension because 75% of the migrants are detained within private facilities: in other words, the over-detention has benefitted private entities which provide the service to the State. To protect against arbitrariness, asylum seekers should only be detained where detention pursues a legitimate purpose and has been determined to be necessary, reasonable, and proportionate in the individual case.  Individualised review should comply with procedural requirements of international law, including: the requirement that the State bear the burden of proof to demonstrate that it has a legitimate interest in detention, the provision of automatic and periodic bond hearings, and the requirement that immigration judges consider the accrued length of detention in deciding whether to release an individual.

Bearing in mind that detention is the exception rather than the rule, in the meantime, the level of immigration detention should be significantly reduced. In view of these observations, it is recommended that the Federal Government should abolish the bed quotas which have been extensively interpreted as beds filled rather than beds required and the practice of mandatory detention of migrants, while providing prompt administrative procedure for individual assessment and for a timely decision on their status.

            Privatisation of Immigration Detention

The recent pledge by the U.S. Government to discontinue the use of private companies to manage the administration of penal detention facilities is a positive development which should be extended to the management of facilities used for immigration detention.  The Working Group visited and interviewed detainees at some facilities managed and operated by private companies, and observed that, as stated earlier, the outsourcing of management to such companies could be one of the reasons for the significant expansion of detention in immigration-related custody.  In this context, the Working Group welcomes the Secretary of the Department of Homeland Security undertaking to conduct a review of the use of private prisons in the immigration context.

In addition, a number of people held in such facilities expressed their concern about the conditions in which they are being detained, and treatment throughout the immigration detention process. 

Their testimony included concerns about the degrading conditions in facilities at the initial point of apprehension, and the subsequent poor quality of food and drinking water, limits on recreation time, limited access to medical services, the lack of books in languages other than English, and degrading treatment by some authorities and employees at detention facilities.  The Working Group was informed that certain vulnerable groups, such as LGBTI detainees, were particularly at risk of ill-treatment.  Several detainees complained about the low pay provided to them for work undertaken in the facilities, as well as the high cost of goods available for purchase in the facility convenience stores.  These conditions of detention were described as degrading and having a significant effect upon the ability of detainees to participate in, and be an asset to, their immigration proceedings.

The Working Group was also made aware that private companies do not require the same level of expertise of its employees and do not provide the same level of employee training as government-run facilities.  Several civil society groups expressed serious concerns as to whether private facilities are subject to effective independent oversight, and if so, whether there are any meaningful consequences for those that fail to comply with applicable detention standards. 

Further, the Working Group was informed that some companies that manage immigration detention facilities are also responsible for the provision of electronic bracelets to detainees released from detention, with migrants charged, in some instances, for the cost of the bracelet.  This appears to be a conflict of interest, and involves the imposition of restrictions which affect the ability of detainees to fully integrate into a society.

       Legal Representation

The Working Group found many examples of detainees who experience barriers in accessing legal representation at immigration detention centres.  Some detainees are placed in facilities that are remote and distant to legal services providers.  Any border patrol post or immigration facility holding detainees should have adequate private attorney visitation space and it should be feasible for legal counsel to communicate confidentially with detainees by telephone, email and other means.  As a positive practice, the Working Group notes the onsite availability of pro bono legal representation at locations such as the South Texas Family Residential Centre (Dilley), including through university legal clinics and civil society organisations.  Another positive example is the ‘Know Your Rights’ program provided by the Casa Cornelia Law Centre in San Diego to detained unaccompanied children, as well as other pro bono programmes provided by civil society organisations across the country.

However, even though the availability of non-governmental pro bono representation at different immigration facilities varies from one State to another, it is often insufficient to meet the needs of indigent immigrant detainees for legal representation, and can often only be made available in priority cases such as deportation proceedings.  Access to justice in immigration proceedings should not be dependent on the generosity of legal service providers, and should be guaranteed by the U.S. Government.   

Access to legal representation should be funded by the U.S. Government and there is a range of programs, such as appointed counsel, fellowship programs, additional funding for pro bono support, among others.  One example of a positive model, to some extent, is the National Qualified Representative Program, which provides government-funded legal representation to detainees with mental disabilities.  Another example was found in an initiative of an Immigration Court in San Antonio which brings children to observe the court proceedings in order to prepare them to better participate with their legal representatives in court proceedings, and provides help desk services to participants in proceedings before the Court.  These positive examples should be extended to all non-citizens who cannot pay for their own legal representation.

Detention of Children and Families

Under international human rights law, the detention of juvenile/minor migrants should be an exceptional measure and only be imposed as a measure of last resort and for the shortest period of time, taking into account their best interests.  The detention of unaccompanied minors is of particular concern, and authorities should ensure that placement and custody decisions relating to unaccompanied children by the Office of Refugee Resettlement is subject to scrutiny by an independent judicial body.  The Working Group received testimony relating to the separation of family members during immigration detention, and the significant anxiety caused by that practice.

The Working Group visited the South Texas Family Residential Centre (Dilley) where women and their children are detained pending the resolution of their immigration status.  Various governmental, inter-governmental and advisory bodies (including the Inter-American Commission on Human Rights, U.S. Commission on Civil Rights, US Commission on Religious Freedom and others) have recommended that family detention be abolished. The Working Group supports those conclusions, and the authorities should return to the prior policy and practice of issuing relevant documents at the port of entry, permitting all families to apply for asylum.

Deprivation of Liberty in the Criminal Justice System

The Working Group acknowledges efforts made at both the federal and state levels to reform the criminal justice system and the juvenile justice system.  The Working Group has collected information on many good practices in this regard. 

For example, at the federal level, following the Attorney-General’s “Smart on Crime” initiative, in 2013, the Department of Justice launched a comprehensive review of the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and efficiently.  These reforms include changes made to charging policies so that certain people who have committed low-level, non-violent drug offenses, with no ties to gangs, will no longer be charged with offenses that impose mandatory minimum sentences. This also includes the consideration of the early release of inmates who did not commit violent crimes and have served significant portions of their sentences, and pursuing alternatives to incarceration for low-level, non-violent crimes.  To reduce the sentencing disparities with retroactive effects, the US Sentencing Commission, in 2014, also voted to lower the federal drug sentencing guidelines by two levels (also known as “drugs minus two”). At the state level, some states, including Washington D.C. and the state of Kentucky, have adopted a risk-based system for pre-trial release with limited reliance solely on monetary bail. In California, the newly proposed parole system would employ a behaviour assessment standard designed to offer opportunities for a court review for release to non-violent defendants. 

The Working Group also acknowledges efforts made in the process of reforming the correctional system, particularly in encouraging the re-entry of offenders back into society.  For instance, in California, efforts have been made by its Department of Corrections to change the focus from security to rehabilitation by providing programs to prepare the re-entry of detainees to the society. 

However, the Working Group identified several areas in which systemic problems within the criminal justice system are resulting in deprivation of liberty in circumstances which make such detention arbitrary.  These include: (i) lengthy pre-trial detention, (ii) the lack of access to effective legal representation; (iii) economic and racial disparities; (iv) disproportionate sentencing; (v) the use of prisons to house mentally ill inmates; (vi) prolonged use of restrictive housing, and (vii) the treatment of juveniles.  Moreover, while the prison population in some institutions is falling, the Working Group continues to be concerned about the rate of incarceration. 

            Pre-trial Detention

The Working Group was informed that lengthy pre-trial detention is the norm rather than the exception, contrary to the right to liberty under international human rights law.  The Working Group received testimony from many pre-trial detainees who, in some cases, had spent years detained in county jails awaiting trial.  In many cases, individuals remained in detention because the bond was set at an excessively high amount beyond their capacity to pay (and sometimes administered by private bonds companies), and without regard to the flight risk or danger posed by the detainee to the community, to the victims and witnesses. Such detention often has serious consequences for those detained, including loss of employment, housing and custody of their children. This is one example of what appears to be the “criminalization of poverty” in the criminal justice system.  We are further concerned that, in many cases, individuals from low-income backgrounds tend to plead guilty, especially on minor charges, to gain release from jail simply because they cannot afford to pay the bond amount.

Although wealth-based pre-trial detention appears to be a widespread and general practice across the U.S., the Working Group was made aware of a number of positive initiatives. For example, the no-cash bail system operating in Washington DC was described as making a significant contribution to reducing the pre-trial population while ensuring that a rigorous risk assessment is the sole criterion for determining whether a person should remain in detention pending trial.  In Cook County Department of Corrections in Illinois, legislation has been proposed to allow the Sheriff to seek a lower bond for individuals who cannot pay the amount originally determined by the courts.  If passed, this legislation will address egregious situations in that county, including the recent case of a person found in possession of a minor amount of marijuana whose bond was set at $50,000.  The Working Group also identified a trend, particularly in California and Illinois, to implement alternatives to detention such as electronic monitoring (which is more appropriate in the criminal context, than for immigration detention), and to actively seek opportunities for detainees to re-enter society.

Bail and bonds should be set on an individualized risk-based assessment. In order to protect the presumption of innocence of accused individuals, judges should take into consideration the individual financial capacity to pay and limit the bail to the amount necessary to secure the defendant’s appearance or protect the community.  Alternatively, greater use should be made of release on personal recognisance (or signature bond) and community-based supervision.  Additionally, access to counsel at pre-trial release hearings and for fine-only offenses should be ensured so that advocacy for a reasonable bail may improve the fairness of the whole justice system.

Effective Legal Representation

Most of the detainees interviewed by the Working Group had access to legal representation from an early stage in the criminal justice process, though not always promptly after initial apprehension and arrest by the police.  This legal representation was usually provided by Public Defenders or, when a Public Defender was not available, through a court-appointed attorney from the private bar.  In exceptional cases, detainees were able to pay for their own private attorneys.  However, despite the relative ease of access to counsel, the quality of legal representation – particularly by Public Defenders and court-appointed attorneys – was described in various testimonies received by the Working Group as variable at best, and often poor. 

Government-funded attorneys often carry too heavy a caseload to provide optimum quality legal representation, even in cases involving serious criminal charges where substantial expertise and advice is required.  Such attorneys were described as less interested and less capable than attorneys who had been privately retained by detainees, and it appears that the outcomes of their cases were significantly worse than privately retained attorneys at both the bond hearing and disposition phases of criminal proceedings.  For example, a study conducted at the Central Bond Court in Cook County in April 2016 revealed that defendants represented by a private attorney spent three times longer in front of the bench during bond hearings than defendants represented by a Public Defender.  Many interviewees noted that it is very difficult to appeal the lack of effective legal representation, as many poor decisions during the proceedings are often attributed to trial strategy by appellate courts and therefore not overturned.  The lack of effective legal representation raises serious doubts as to whether defendants are being arbitrarily deprived of their liberty without due process.

Economic and Racial Disparities

While the money bail system seems to put low-income individuals in a disadvantaged position, it is of greater concern to the Working Group that some indigent people are jailed for failure to pay court-ordered fines.  According to the information received, in 2014, more than 560,000 municipal cases in Texas were closed when the defendant served jail time in exchange for the city forgiving the unpaid fines.

In addition, the Working Group is concerned about the racial disparities at all stages in the criminal justice system.  For instance, the Working Group was provided information that African Americans are more likely to be stopped and searched by law enforcement personnel as compared to the Caucasian population; they are more likely to be arrested for marijuana possession, despite equal levels of use; harsher sentences imposed on black defendants; and the over representation of African Americans and Hispanic in jails and prisons.  For example, as of 19 October 2016, African Americans represented 72% of those held in Cook County Department of Corrections, while 16% were Hispanic, 11% Caucasian, and 1% from other groups (note that the Cook Country population demographics is, inter alia, 42.9% Caucasian and 23.6% African American).

Moreover, the Working Group is concerned about reported police brutality at the time of arrest and pre-trial detention, which in some cases has jeopardized the detainees’ right to a fair trial and potentially amount to arbitrary detention.  The Working Group heard various testimony indicating that (i) individuals of African descent are more likely to be arrested for marijuana possession, despite equal levels of use among different social groups; and that (ii) harsher sentences are imposed on them. Under those circumstances, over-representation of African Americans and Hispanic in jails and prisons is evident, and the solution to correct this unfair treatment of certain social groups requires a change of practices.

Disproportionate Sentencing

The Working Group interviewed many detainees who had received life sentences without the possibility of parole or extremely heavy sentences ranging from minimum non-parole periods of 25 to 50 years (effectively a life sentence).  Many of these cases appeared to be the result of sentences imposed under ‘three-strikes’ legislation or as the result of ‘enhancements’ (particularly in the federal system) on defendants with prior criminal history, including young men who were barely adults at the time of commission of the offenses. 

While the Working Group recognises the need to ensure that those responsible for the commission of criminal acts are subject to appropriate penalties within the criminal justice system, much of the testimony to the Working Group appeared to involve heavy-handed sentencing imposed in response to demands for greater, politically motivated law and order imperatives rather than ensuring reintegration into society as proportionate response to crimes committed.  Although the Working Group learned of several positive initiatives to address this issue, such as the recent amendments to the Federal Sentencing Guidelines which provide prosecutors with greater discretion to seek lower penalties, and the reduction of federal drug sentencing guidelines by two levels (also known as “drugs minus two”) to retroactively reduce sentences and release more inmates.  This has already led to the release of thousands of convicts by the current administration and the Working Group acknowledges such a positive development. In some states, compassionate release and the granting of pardons and clemency are being more actively used to release detainees.

Prolonged Use of Restrictive Housing

During its visit to places of deprivation of liberty, the Working Group observed that solitary confinement, also known as administrative segregation and restrictive housing, is widely used against different groups of individuals for various purposes. The Working Group was provided information that segregation was used for administrative and disciplinary purposes, including to protect the individual being segregated as well as the general population. In particular, the Working Group is concerned that solitary confinement is widespread, of prolonged duration in some instances, and arbitrarily applied at the discretion of detention officials.  In reality, some individuals are subjected to lengthy periods of confinement ranging from a few weeks to years. There is reportedly a lack of independent and external review for the instances of solitary confinement, allowing for the possibility abuse of authority by detention officials.

Juvenile Justice

As far as the juvenile justice system is concerned, the Working Group welcomes the decisions made by the Supreme Court, which held that the mandatory sentencing of juvenile offenders to life imprisonment without parole is unconstitutional and that this ruling should be applied retroactively. In light of these decisions, we encourage all states to change their laws and practices with the aim of abolishing life without parole for persons under the age of 18 at the time of the crime.

The Working Group notes with concern the practice of treating minors in certain cases as adult offenders. In some instances, this leads to those juvenile offenders being detained with adult offenders, both during the pre-trial phase and after conviction. For instance, in Texas, under criminal law, children are considered as adults once they turn 17.  In Texas and some other states, depending on the offenses, children as young as 14 years old can be certified as adults and tried before adult courts. In addition, children who stand trial as adults are consequently sent to adult prisons.

The Working Group recommends that life without parole sentences for juvenile defendants be abolished in its entirety; and that the courts should be able to review a juvenile’s sentence after they have reached an age when their capacity for rehabilitation can be accurately assessed.  The Working Group urges the United States to ratify the Convention on the Rights of the Child.

Detention of the Mentally Ill in Prisons

The Working Group also notes with concern that mental health population has recently grown significantly in prison system, despite findings that incarceration can cause or exacerbate existing mental health problems.  Several interviewees described the situation as the “criminalization of mental illness”.  Reportedly, across the United States, state prisons and county jails now hold as many as 10 times more people with serious mental illnesses as state psychiatric hospitals, and jails and prisons now serve as the largest mental health providers in 44 of the 50 states. For instance, one third of detainees at Cook County Department of Corrections self-identified as suffering from some form of mental illness.  Every day, approximately 20% of the population is undergoing mental health treatment, making the Cook County Department of Corrections “one of the largest de facto mental health facilities in the country”.

In order to address this situation, the Sheriff of Cook County has led the development a Mental Health Template for American Jails. The Cook County Department of Corrections has also implemented two stages of mental health assessments, starting with pre-bond and then followed by post-admission.  This allows jail officials to situate detainees in an adequate housing and treatment plan, supplying patients with the tools they need to succeed outside the correctional institution.  There is also a voluntary outpatient treatment program available (Mental Health Transition Centre) for detainees diagnosed with substance abuse or mental illness.  Detainees interviewed by the Working Group expressed very positive views about this program.

The Working Group recommends that access to mental treatment outside of the criminal justice system be expanded, and that a specific set of pre-arrest, and pre-trial intervention programs be developed aiming at preventing the incarceration of those in need of mental health treatment.  Protocols to protect mentally ill inmates from abuse are also required, together with universal training on de-escalation and other skills used in encountering individuals during mental health crises for law enforcement officers.   Appropriate follow-up is required to ensure that individuals are able to access a continuum of mental health treatment upon release.

The Working Group observed a strong correlation between reported mental illness and substance abuse in those persons interviewed during the visit, and received information that as many as 55-69% of individuals with substance abuse disorders have a co-occurring mental health disorder. Further, 60% of those who have been diagnosed with a mental health disorder have a co-occurring substance abuse disorder.  The Corcoran II facility in California is addressing these issues through its Substance Abuse Treatment Facility and mental health facilities.

Deprivation of Liberty on Health-related Grounds

While the Working Group was unable to exhaustively examine issues relating the deprivation of liberty on health grounds, it provides its findings on two specific areas: (i) the confinement of pregnant women who are suspected of substance abuse, and (ii) the involuntary hospitalisation of persons suffering mental illness.

Confinement of Pregnant Women

The Working Group identified a trend involving the increasing use of civil laws to confine pregnant women who are suspected of substance abuse.  Five states - Wisconsin, North and South Dakota, Oklahoma and Minnesota -  currently allow confinement and involuntary treatment of pregnant women suspected of substance abuse.  The Working Group was informed that these civil laws do not make any distinction between the types of drugs consumed by pregnant women.

While some states have specifically amended civil laws to allow the commitment of pregnant women for substance abuse, other states have amended child protection laws to enable the state to involuntarily take pregnant women into “protective custody.”  In some states, government officials, hospital staff and social workers are authorized to initiate juvenile court proceedings against a pregnant woman if she is deemed to “habitually lack self-control” in the use of alcohol or controlled substances.  Some women have been arrested after visiting health care providers seeking prenatal care and subjected to confinement proceedings which resulted in orders that they be detained and undergo medical treatment.  Furthermore, some women have been involuntarily placed in residential treatment facilities without sound medical evidence that they have a drug dependency or that the health of their foetus was jeopardized, thus removing them from their homes, families and employment. It is unfortunate not only because such a procedure lacks due process, but it also serves as a deterrent for other women who need the health care system. 

The civil proceedings to commit pregnant women are often confidential, lack meaningful standards, provide few procedural protections, and may take place without legal representation of the mother. This form of deprivation of liberty is obviously gendered and discriminatory in its reach and application, as pregnancy -combined with the presumption of drug or substance abuse- is the determining factor for involuntary treatment.  It should be replaced with alternative measures that protect women without jeopardizing their liberty. 

Affirmative steps should be taken by authorities at the federal level to maximize the availability of healthcare – including prenatal care, treatment for addiction, and outpatient services.  Responses to substance use in pregnancy should prioritize human rights and public health; confinement or involuntary treatment should be used only as a last resort when a person poses an immediate threat to themselves or other persons, only for the shortest period of time, and with appropriate due process guarantees.  These include timely access to legal representation; an opportunity for the woman to present evidence in her defence; a requirement that any determination with respect to the need for treatment be carried out by qualified professionals, and periodic re-evaluation to ensure that involuntary treatment is still appropriate.  Federal drug treatment funding to states could also be made conditional on the elimination of policies that threaten maternal health by permitting involuntary detention. 

Involuntary Hospitalization of Persons suffering Mental Illness

The Working Group received information on mental health laws in several jurisdictions, including Washington DC and California, which contain provisions authorizing involuntary hospitalization based on an actual or perceived psychosocial disability, and mental health treatment without the free and informed consent of the person concerned or his/her guardians.   This form of confinement is justified using criteria such as the danger to the confined person or others and/or the need for care and treatment, which is inherently discriminatory since it is based on disability.  The Working Group received testimony from individuals who have been subjected to prolonged periods of detention in psychiatric institutions in violation of their human rights.  In some cases, individuals were subjected to “voluntary hospitalization”, but without their informed consent to treatment and without the ability to leave at any time.  Hospitalization of any duration was both traumatizing in itself and re-traumatizing for those individuals.

The hospitalization of persons suspected of suffering from a mental illness must take into account their vulnerable position and their likely diminished capability to challenge their detention.  If such persons do not have legal assistance of their own or of their family’s choosing, effective legal assistance through a defence lawyer or a guardian must be assigned to act on their behalf.  The necessity of continued hospitalization must be reviewed regularly at reasonable intervals by a court or a competent independent body in adversarial proceedings and without automatically following the expert opinion of the institution where the person is held.  The person must be released if the grounds for hospitalization no longer exist. 

The Working Group considers that there should be an enforceable right under legislation for mentally ill persons to live in the community and be provided with health services that are free from coercion and restriction.  In this regard, the Working Group urges the United States to ratify the Convention on the Rights of Persons with Disabilities. 

Deprivation of Liberty and Guantanamo Bay

The deprivation of liberty in Guantanamo Bay has been extensively covered by the United Nations Human Rights mechanisms. The Working Group, together with Special Procedures mandate holders, had issued a joint study on global practices in relation to secret detention in the context of countering terrorism.  The Working Group reiterates the recommendations made in that context.

The Working Group met with representatives of the Office of the Special Envoy for Guantanamo Closure. During the meeting, the delegation learned that 61 detainees currently remain at Guantanamo Bay. Among these individuals, 21 have been approved for transfer, 10 have their cases pending before military commissions, and 30 are designated for continued detention. 

The Working Group received relevant testimony related to the difficulties that the legal representatives of detainees face while representing their clients detained in Guantanamo Bay, including access to the facility and meeting privately with the detainee, and access to all relevant evidence. Such obstacles amount to a restriction of full legal representation and the right to be represented by counsel.  The Working Group is concerned that the detainees have not been tried by an independent and impartial court of law after many years of arbitrary deprivation of liberty.

The Working Group was informed that, in order to close the Guantanamo Bay detention facility, the U.S. Government pursues three lines of effort simultaneously: (1) identifying transfer opportunities for detainees designated for transfer; (2) continuing to review – by the Periodic Review Board - detainees who are not currently eligible for transfer and who are not currently facing military commission charges; and (3) continuing with ongoing military commissions prosecutions and, for those detainees who remain designated for continued detention, identifying individualized disposition where available, including transfer to third countries, foreign prosecution or, should Congress lift the ban on transfers to the United States, transfer to the United States for prosecution in Article III courts and to serve sentences.  

The Working Group encourages the Congress to lift prohibitions in current law and enable the transfer of Guantanamo Bay detainees to the continental United States for prosecution and trial before a court of law 

The Working Group notes that several individuals who were the subject of its Opinions have been transferred.  The Working Group urges the U.S. Government to give full effect to its Opinions issued in relation to detainees in Guantanamo Bay, and in that regard close the detention facility immediately.

Conclusion

These are our preliminary findings.  The Working Group will continue to engage in constructive dialogue with the U.S. Government over the following months while it determines its final conclusions in relation to this visit.  We acknowledge with gratitude the willingness of the U.S. Government to submit itself to scrutiny by inviting the Working Group to conduct this visit, and recognize that it is the starting point for introducing reforms to address situations which may amount to an arbitrary deprivation of liberty.