H U M A N
R I G H T S
W A T C H

NATION
BEHIND
BARS
A HUMAN RIGHTS SOLUTION

NATION
BEHIND
BARS
A HUMAN RIGHTS SOLUTION
Introduction.......................................................................................................................................3
Background: Rates of Incarceration and Basic Criminal Justice Considerations........................................5
Why are US Incarceration Rates so High? .........................................................................................5
When is Criminalization Warranted?................................................................................................6
When and How to Punish................................................................................................................6

Recommendation 1: Ensure Proportional Sentences.............................................................................8
Reform or Eliminate Mandatory Minimum Sentences .......................................................................9
Eliminate or Narrow the Use of Life without Parole, Other Severe Sentences ...................................12
Increase Use of Compassionate and Geriatric Release of Prisoners .................................................13

Recommendation 2: Treat Youth and Adult Offenders Differently..........................................................16
Tailor Prosecution, Sentencing, Custody of Youth to Their Needs and Potential ...............................16
Provide all Youth with Periodic Meaningful Opportunities for Release .............................................17

Recommendation 3: Promote Drug Policies that Respect Liberty, Autonomy, and Privacy ......................20
Recommendation 4: Reduce Criminal Sanctions for Immigration Offenses............................................23
Reform Illegal Entry and Re-Entry Prosecutions ..............................................................................23

Recommendation 5: Ensure Drug Laws and Drug Law Enforcement are not Discriminatory .....................27
End Unwarranted Racial Disparities Due To Drug Law Enforcement Practices...................................27
Eliminate Crack/Powder Cocaine Sentencing Disparities ...............................................................28

Conclusion.......................................................................................................................................30
Acknowledgements ..........................................................................................................................30
For more information ........................................................................................................................31
(front cover) A guard looks on (right) as prisoners
move through Georgia’s state prison in Jackson.
© 2011 David Goldman/Associated Press

Endnotes .........................................................................................................................................32

INTRODUCTION
For decades, the United States has passed laws that discount other forms of
punishment in favor of incarceration. But in its embrace of confinement as a
medicine that cures all social ills, the country seems to have forgotten just
how severe a punishment it is.
Almost 30 years of harsh sentencing laws have left the US with over 2.2 million men and women
behind bars, most for nonviolent crimes. As the nation finally confronts the myriad impacts of such
widespread incarceration, there is growing support for criminal law reform. Lawmakers across the
political spectrum are rethinking criminal sanctions in light of the damage that long sentences
inflict on individuals, families, and communities; the marked racial disparities in incarceration; the
burden on taxpayers; and the viability of alternatives to incarceration to protect public safety.
The momentum for sentencing reform is welcome for all who care about the fair use of
government’s power to determine what conduct to criminalize and what sanctions to impose on
those who break the law.
An officer oversees inmates who are jammed into a makeshift
dormitory at the Deuel Vocational Institution. The prison near
Tracy, California, is at more than double its capacity.
© 2009 Tony Avelar/Christian Science Monitor/Getty Images

BACKGROUND:
Rates of Incarceration and Basic
Criminal Justice Considerations

KEY FACTS
• Between 1979 and 2009, the number of prisoners in state and federal facilities
increased almost 430 percent;
• Since 1980, the federal prison population has grown 721 percent;
• In the last 29 years, the state prison population has grown over 240 percent;
• One of every nine people in prison—159,000 people—is serving a life sentence;
• As of 2009, some 2,500 people were serving life without parole sentences for
crimes committed before age 18;
• In 2011, more than 95,000 youth under the age of 18 were held in adult prisons
and jails across the United States;
• Over half (53.4 percent) of prisoners in state prisons with a sentence of a year or
longer are serving time for a non-violent offense;
• For every 100,000 Americans in each race or gender group, there are 478 white
males, 3,023 black males, 51 white females, and 129 black females incarcerated
in state or federal prison;
• Almost one-third of those serving life sentences—49,081 as of 2012—have been
sentenced to life without the possibility of parole (LWOP);
• In 2010, 26,200 state and federal prisoners were 65 or older, up 63 percent from
16,100 in 2007;
• Today, immigration offenses account for over 40 percent of all federal criminal
prosecutions and almost 30 percent of new admissions to the federal prison
system.

Criminal law reform in the US will be strengthened if it
incorporates the human rights principles that require
prudent use of criminal sanctions, fair punishment, and
equal protection of the laws. These are not only core
human rights principles applicable to sentencing, but
core principles of American justice that have been neglected for far too long. Drawing on them, we urge legislators, at the very least to:

• Ensure proportionality in punishment;
• Reform or eliminate mandatory minimum
sentences;
• Treat youthful offenders differently from adults;
• Ensure criminal laws do not needlessly restrict
autonomy and privacy;
• Reduce criminal sanctions for immigration
offenders;
• Ensure criminal laws do not yield unwarranted
racial disparities.

4

NATION BEHIND BARS

Why are US Incarceration Rates so High?
In the 1980s, state and federal legislators began to
adopt “tough-on-crime” laws in response to rising crime
rates, racial tensions, the emergence of crack cocaine,
supposed threats to “traditional values” from counterculture movements, and fears of perceived increases in
numbers of immigrants and youth offenders. Many of
the harsh laws adopted decades ago remain on the
books, supplemented by newer ones, because “toughon-crime” has remained a default approach for all too
many politicians.
Law-makers have criminalized minor misconduct, instituted mandatory prison sentences even for low-level
crimes, and established “three-strikes-and-you’re-out”
laws for recidivists. They have focused more on restricting judicial discretion by enacting mandatory minimum
sentences and on increasing the length of sentences
than on ensuring that the sentences judges impose are
fair and proportionate to the offense and the offender’s
circumstances. They have assumed longer sentences
were necessary to promote public safety, rather than
drawing on empirical evidence to determine how best to
protect the public. They have not only increased the
length of sentences applicable to crimes, they have increased the amount of time served by reducing or eliminating parole. The results are well known: the US has
the largest reported incarcerated population in the
world, and by far the highest rate of imprisonment.1 As
of year-end 2012, despite slight recent declines in new
admissions, 2.2 million persons were held in adult prisons or jails in the United States.2 Between 1979 and
2009, the number of prisoners in state and federal facilities increased almost 430 percent.3
The federal prison population—now larger than that of
any individual US state’s—has grown an astonishing 721
percent since 1980.4 In the last 29 years, the state prison
population has also grown dramatically, increasing over
240 percent.5 In 2012, almost half a million (444,591)
men and women entered state and federal prisons with
new convictions.6
According to US Attorney General Eric Holder, US prisons
are crammed with men and women serving “too long for
too little.” Former speaker of the US House of RepresenHUMAN RIGHTS WATCH

tatives, Newt Gingrich, has stated: “There is an urgent
need to address the astronomical growth in the prison
population, with its huge costs in dollars and lost human
potential….The criminal justice system is broken.”7
Even as crime rates declined, the numbers of Americans
in prison continued to skyrocket because of harsh sentencing laws. One national study found that 88 percent
of the increase in incarceration rates between 1980 and
1996 was due to policymakers’ decisions to lengthen
sentences, impose incarceration (rather than, say, probation) for an ever-increasing number of offenses, and
ensure offenders spend an increased amount of their
sentence in prison (for example by reducing parole,
“good time,” and indeterminate sentencing).8
An extreme illustration of the ballooning of sentence
lengths is the large number of people serving life sentences. According to a report by the Sentencing Project—
a non-governmental sentencing reform research and
advocacy group—159,000 people (one of every nine individuals in prison) are serving a life sentence, including
49,081 who are serving life without the possibility of parole, i.e. they have been sentenced to die behind bars.9
As of 2009, approximately 2,500 people were serving
life without parole sentences for crimes committed before age 18.10
High incarceration rates might not be so troubling if they
reflected high rates of serious crime. Over half (53.4 percent) of prisoners in state and federal prisons with a sentence of a year or more are serving time for a non-violent
offense.11 Life sentences are not reserved for violent
crimes, but are often imposed on recidivists for non-violent property or drug crimes.12
The ratcheting up of sentences for drug offenders and
increased drug law enforcement has had a particularly
dramatic effect on incarceration. Though new court commitments to state prisons for drug offenders decreased
22% between 2006 and 2011,13 drug offenders still represent 50.6 percent of federal prisoners and an estimated 21.3 percent of all prisoners in the United States
(state and federal).14 The Urban Institute—a non-partisan
public policy think tank—has calculated that the increase in sentence length for federal drug offenders
“was the single greatest contributor to growth in the federal prison population between 1998 and 2010.”15
Racial disparities in imprisonment rates are striking. For
every 100,000 Americans in each race or gender group,
there are 478 white males, 3,023 black males, 51 white
females, and 129 black females incarcerated in state or
federal prison.16 Drug sentences have contributed

5

Whether conduct that does not cause or risk unwanted
harm to another person or the community should ever
be criminalized has proved a vexing question in constitutional democracies. Such countries often place high
value on individual liberty and human rights and are
wary of the undue exercise of government power.
In the particularly contentious areas of consensual adult
sexual behavior and of adult drug use, there is growing
recognition by public officials, the courts, and the public
that the government should not restrict the liberty and
autonomy of individuals simply because some or even
many members of the public find their choices offensive
or immoral. Not only are these areas in which individuals
exercise their autonomy, they are areas of conduct (free
expression and privacy) protected by international
human rights law.

6

The consequences of criminalization—arrest, conviction,
and punishment including incarceration—can continue
long after an arrest or a sentence has been served. In
many states, persons with criminal convictions or even
simple arrest records are barred from pursuing certain
professions. 20 Many people with convictions throughout
the country lose the right to vote.21 They carry the stigma
of being an “ex-con,” and routinely have difficulty finding a job, obtaining food assistance and public
housing,22 and establishing or reestablishing family and
community connections.

When and How to Punish
Punishment should be proportionate to the offense and
the individual’s blameworthiness and no greater than
necessary. Penal sanctions can take different forms such
as fines, community service, probation, electronic monNATION BEHIND BARS

175,000

150,000

125,000

100,000

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

1999

1998

50,000

1997

75,000

1996

The public morality and common sense reflected in this
example is consistent with the strong and long standing
argument that criminalization should be a last resort and
only for “significantly reprehensible” conduct.19 Typically
and historically, criminalization is reserved for conduct
that directly harms someone against their will; offenses
like homicide, theft, rape. Criminalization is also used
to address certain conduct that can cause widespread
collective harms, such as harms to the environment,
food safety, and national security.

It is important to keep in mind that the use of criminal
sanctions is not the only way to promote public welfare.
First, there are non-governmental forces with the capacity to promote good conduct, such as families, communities, religions, and other social institutions. Second,
the government has a wide range of tools at its disposal
other than the criminal law to prevent misconduct: positive social investments to strengthen families, communities, enhance public education, and create jobs;
investments in public infrastructure such as public
health education, sufficient substance abuse and mental health treatment for those who want it; promotion of
systems of positive reinforcement and reward; and civil
regulation are all steps government can use wholly apart
from—or as complements to—criminalization and criminal law enforcement.

200,000

1995

Nevertheless, governments have considerable latitude
in deciding what kind of conduct is sufficiently harmful
to others or to the community at large to warrant criminalization and post-conviction consequences. The outer
boundaries are relatively easy to discern: few people
think that the act of lying to one’s spouse about whose
dirty plate is in the sink should be criminalized and
surely everyone believes it should be a crime to deliberately kill a spouse because they failed to wash the
dishes.

Because criminalizing conduct has serious consequences for individuals and their communities, law-enforcement and public trust in the criminal justice system,
governments should consider in each case whether it is
the best form of social control. Will criminalization have
the sought-for impact, will it be cost-effective, will it have
unintended adverse side effects, will it have public support?

225,000

1994

Government’s extraordinary power to criminalize and
punish should be used sparingly, and with due considerations for the principles of proportionality and respect
for human dignity that human rights law requires.

SENTENCED PRISONERS UNDER FEDERAL JURISDICTION

1993

When is Criminalization Warranted?

Under international human rights law, using penal law
to restrict the exercise of the rights of expression and privacy cannot be justified unless the restrictions meet the
criteria of legitimate purpose, necessity, proportionality,
and non-discrimination. In short, criminal law can play
an important role in safeguarding the interests of individuals and the community writ large, but it should be
wielded carefully and according to limiting criteria to
protect individuals from the abuse of government power.

1992

markedly to racial disparities in prison populations.
African Americans represented 42 percent of all persons
entering state prison with new sentences for drug offenses in 2011, and whites represented 38 percent.17 According to the US Sentencing Commission, in 2013,
African Americans comprised 26.5 percent of newly-sentenced federal drug offenders, Hispanics comprised 47.9
percent, and whites were 22.4 percent.18

Note: Total number of prisoners under federal jurisdiction, as reflected in annual counts by the Bureau of Justice Statistics. For 2011 prison
population, figure is in GAO report. For 2012 prison population, source is from the Bureau of Prisons, weekly counts.

itoring, evening-only confinement, or full incarceration.23
The choice of sanctions should reflect how serious the
conduct is compared with other crimes. Obviously, all
crimes are not equal: the relative gravity of shoplifting a
loaf of bread is quite different from armed robbery.
In the United States, it is generally accepted that the legitimate purposes of punishment for crime include retribution, incapacitation, deterrence, and rehabilitation,
although the mix and weight given to these at different
periods of history have varied. Retribution is generally
understood as holding offenders accountable (giving
them their “just deserts”) for having harmed or risked
harm to someone else or the community at large. It reflects social condemnation of the crime, thereby
strengthening public understanding of the boundaries
of permissible behavior.
Punishment can also advance public safety in important
ways. It may deter future crime, both by the formerly-incarcerated individual once released back to the commu-

HUMAN RIGHTS WATCH

nity and by others who know what punishment may follow. Moreover, incarceration and other restraints on liberty “incapacitate” dangerous individuals by removing
them from the community or otherwise limiting their
movements and privacy. Incarceration and other forms
of punishment also promote public safety if time on probation or behind bars is used to give offenders the skills
and abilities necessary to lead a productive, law-abiding
life when they reenter the community. Indeed, the rehabilitation and reintegration of offenders into society is
not just good penal policy; the fundamental human right
to respect for human dignity mandates that it be the primary aim of a prison regime.24
To be consistent with international human rights, punishment must be no more severe than needed to accomplish its ends. For example, consider the punishment for
taking a life. A very long prison sentence might be proportionate to, and justified by, the goals of retribution,
deterrence, and incapacitation if the offender deliber-

7

ately committed murder and had a long record of violence. But what if the death was the result of a car accident negligently caused by someone who was sober at
the time? Such a crime generally carries a lower sentence than first degree murder, because the purposes of
retribution, deterrence, and incapacitation can be satisfied with a lower sanction.

Lawmakers should take steps to ensure that criminal
laws permit judges to impose proportionate sentences.

Imprisonment is the most drastic punishment, short of
the death penalty, that a government can lawfully impose on an individual. It should be imposed only as a
last resort – that is, it should be used only when no
lesser sanction could be justified given the nature of the
crime, and even then it only should be imposed for as
long as necessary to further the purposes of punishment.

Responsible policymakers should not simply denounce
certain crimes and call for severe punishment: they must
carefully consider—or create sentencing commissions to
consider— the nature of the offense, how it compares to
others, whether criminal sanctions are appropriate, and
if a sentence to incarceration is required, what maximum
length should be set in order to ensure that it will not be
longer than proportionate or necessary.

In the United States, prison is not a last resort, but all
too often the first and only resort which lawmakers have
required judges to impose for a vast number of crimes.
It is imposed on 69 percent of state felony defendants
and 87.6 percent of federal defendants.25 For decades
the United States has passed laws that discount other
forms of punishment in favor of incarceration—it has
been treated as the medicine that cures all ills. But in
its embrace of incarceration, the country seems to have
forgotten just how severe a punishment it is.

This recommendation is urgent because the US criminal
justice system is rife with disproportionately long sentences. Legislators have been more concerned with enhancing their tough-on-crime credentials than with
creating sensible and fair sentencing parameters within
which judges could tailor sentences proportionate to an
individual’s wrongdoing. There are promising signs,
however, that the tide may be turning. For example, the
National Conference of State Legislatures—a bipartisan
organization providing research and support to all state
lawmakers and their staff–recently embraced the requirement of proportionality in its 2011 roadmap for
criminal sentencing reform.27

Prisoners lose their liberty, autonomy, and the freedom
to exercise fully most rights. They are cut off from families, friends, and communities. Children lose their parents to prison, and parents lose their children. In prison,
a person’s ability to work, express themselves, and engage in activities that promote what human rights law
calls the “free and full development of the personality,”26 is severely restricted. In many prisons, the health
and safety of prisoners, as well as their dignity and privacy, are threatened by overcrowding, harsh measures
such as solitary confinement, and poor physical conditions and sanitation, not to mention rape and other
forms of violence.
Since many US prisons have moved away from providing
educational or rehabilitative programs due to fiscal constraints and some policymakers’ rejection of rehabilitation as a legitimate aim of punishment, many prisoners
emerge from prison with few tools to reintegrate into society, although many do still struggle against the odds
to learn and transform themselves, and to contribute to
their communities once released.

8

RECOMMENDATION 1:
Ensure Proportional Sentences

Proportionality between a crime and its sentence is a
thorny subject that criminologists, legal academics, and
philosophers have analyzed and debated extensively.
We make no attempt to reprise that debate here, nor to
assess what sanctions might be proportionate for which
crimes. Our goal is to press legislators and the public to
focus on the importance of proportionality, and to take
steps to ensure proportionality is considered when enacting new laws or considering reform of existing laws.
Sandra Avery’s case shows how bad laws can lead to unjust sentences. Avery was once a crack user, and had
been convicted three times for possessing $100 worth
of the drug for personal use. But she pulled herself together, joined the army, earned an accounting degree,
and on leaving the army got a good job. Years later, her
life spun out of control. She married a crack dealer and
started using again. Then she and her husband were arrested together for selling crack. She was prosecuted
under federal law. The prosecutor offered her a plea deal
that could have brought a 10-year sentence, but when
she refused, he sought a mandatory sentencing en-

NATION BEHIND BARS

hancement based on her drug possession cases. Convicted after trial, she received a sentence of life without
parole. It is hard to envision any theory of proportionality under which her life sentence is proportionate to her
crime—even allowing for her prior history.28

inal justice and human rights. On the contrary, the
Supreme Court’s deference to the legislative branch
highlights how important it is that lawmakers exercise
their responsibilities with the utmost care to ensure that
punishments are not unduly harsh.

Her case is, unfortunately, one of many egregiously long
federal sentences that Human Rights Watch has recently
documented.29 Recent reports by the American Civil Liberties Union (ACLU) and by the Sentencing Project also
document cases in which life sentences have been imposed for non-violent crimes by both state and federal
courts.30

Reform or Eliminate Mandatory
Minimum Sentences

By way of comparison, legislators might consider the International Criminal Court (ICC) and the sentences it can
impose for the most serious of all crimes, such as genocide, crimes against humanity, and war crimes.31 For the
crimes under its jurisdiction, the ICC may impose sentences of “imprisonment for a specified number of years,
which may not exceed a maximum of 30 years; or a term
of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the
convicted person.”32 These punishments were established to reflect human rights principles on proportionality. Many US state and federal sentences are much
longer, and for far less serious crimes.
In theory, the Eighth Amendment to the US Constitution
prohibits grossly disproportionate sentences as “cruel
and unusual punishment.”33 But in practice, while there
has been some progress in setting limits on the sentencing of youth, US courts have been reluctant to set limits
on the length of adult prison sentences. In 2003, the
Supreme Court refused to rule life sentences as being
cruel and unusual when they were imposed under California law on two defendants whose “third strikes” consisted of stealing three golf clubs in one case and nine
video tapes in the other.34 In its 1991 ruling in Harmelin
v. Michigan, the Supreme Court rejected an Eighth
Amendment challenge to a sentence of life without the
possibility of parole for a 42-year-old first-time offender
convicted of transporting 672 grams of cocaine in his
car.35 Given these precedents, it is not surprising that US
courts rarely, if ever, decide that a prison sentence is unconstitutionally long.
The Supreme Court’s reluctance to establish constitutional constraints on prison sentences partly reflects
concerns that, in a democracy, sentencing laws fall
under the prerogative of legislators.36 But its refusal to
strike down egregious sentences should not be taken as
a green light to legislators to ignore basic tenets of crim-

HUMAN RIGHTS WATCH

Mandatory minimum sentencing laws preclude judges
from exercising their traditional role of individually tailoring a sentence to the crime and the defendant’s culpability, taking all relevant factors into account. They
require prison sentences of a minimum specified length,
even when they may be grossly disproportionate to the
defendant’s actual conduct.
All jurisdictions across the US have established some
form of mandatory minimum prison sentences for a variety of crimes.37 Criticisms of mandatory minimum sentencing laws are legion and, in our judgment,
well-founded. All too often the sentences required under
such laws violate the principle of proportionality because even the minimum sentence required by legislators far exceeds what is reasonable for the crime and the
offender’s culpability.38
The problem is particularly acute when it comes to drug
crimes, which often carry long mandatory minimum sentences keyed solely to the weight and type of the drug.39
For example, because the offender’s role is not a factor
that determines the applicable minimum, federal prosecutors can— and often do—levy the charges carrying
the same mandatory minimum sentence against a
courier who delivers a package of cocaine across town
as against the drug boss who received it. Mandatory
minimums also provide prosecutors with a strong
weapon to coerce pleas from defendants. Faced with the
possibility of harsh mandatory sentences or sentencing
enhancements that judges must impose if the defendant
is convicted, most defendants have no choice but to
plead guilty rather than risk going to trial.40
In fiscal year 2013, 62 percent of federal drug defendants, or 14,212 individuals, were convicted of an offense carrying a drug mandatory minimum penalty.41
More than a quarter of federal drug offenders (27.8 percent) received five-year mandatory minimum sentences
and almost one third (34.4 percent) received ten-year
mandatory minimum sentences.42

9

An older man sits in his cell
in a Colorado prison.
© 2011 Jamie Fellner/Human Rights Watch

10

NATION BEHIND BARS

HUMAN RIGHTS WATCH

11

Federal mandatory minimum sentences can lead to
grotesquely long sentences for minor conduct.43 For example:
According to government evidence, Tyquan Midyett
was part of group that sold crack at different buildings in a New York City public housing complex; the
total amount sold during the conspiracy period was
approximately 843 grams of crack. The judge found
that Midyett could have foreseen and/or participated personally in the sale of 97 grams of crack.
Midyett was sentenced to 20 years in prison in 2010
for distributing crack cocaine. At sentencing, the
judge said she found 20 years “quite more than necessary, but I do not have discretion under the law to
consider a lesser sentence.”1 The 20-year-sentence
was based on a mandatory minimum sentence of 10
years “enhanced” another 10 years because Midyett
had previously been convicted of possessing a controlled substance.44
Federal laws also empower prosecutors to ratchet up
drug sentences way above the (already high) five or tenyear minimum baselines based on drug quantity. For example, prosecutors can require judges to impose far
higher sentences if the defendant has a criminal history,
however minor, or owns a gun which prosecutors frequently argue is in furtherance of a drug business. The
sentencing results can be staggering. For example:
Rick Barton sold oxycontin and cocaine in rural Virginia and West Virginia, and at least four times accepted guns as payment for drugs. There was no
evidence that he carried or fired the guns unlawfully.
He was convicted after trial and sentenced to 1020
months (85 years) in prison: 60 months (5 years) for
his conviction of possession with intent to distribute
the drugs and 960 months (80 years) for his conviction on four counts for possessing guns in furtherance of his drug business.45
Harsh firearm enhancements also exist at the state
level. For example, Florida imposes a minimum 10-year
prison term for possession of a firearm during commission or attempted commission of certain felonies, increased to 20 years when the firearm is discharged.
These mandatory minimums must be served consecutively to the sentence imposed for the underlying offense.46
In August 2013, Attorney General Eric Holder instructed
federal prosecutors to avoid charging certain low-level
nonviolent offenders with offenses carrying mandatory
minimum sentences and to avoid seeking mandatory

12

sentencing enhancements based on prior convictions
unless the defendant’s conduct warranted such severe
sanctions. It is too soon to tell how prosecutors will carry
out the policies, but they contain easily exploited loopholes. At time of writing, Congress is considering legislation that reduces five and ten-year mandatory
minimums related to drug offenses by half and also
slightly expands the safety valve that allows for judges
to sentence below a mandatory minimum.

In 2013, Roy Lee Clay, a 48-year-old part-time home
remodeler, was sentenced to life without possibility
of parole after conviction for conspiring to distribute
one kilogram or more of heroin—a crime that normally carries a 10-year sentence. However, Clay had
two prior drug convictions. At his sentencing, Judge
Catherine Blake called the life without parole sentence “extremely severe and harsh” but federal legislators had given her no other options.54

Some states have been taking steps towards reforming
mandatory minimums. For example, in 2012, Massachusetts Governor Deval Patrick signed into law a sentencing reform bill that shortened mandatory minimum
sentences for a number of drug offenses.47 In California,
an overwhelming majority of voters in November 2012
approved Proposition 36, a ballot initiative limiting the
reach of the state’s draconian “three-strikes” law; while
Proposition 36 retained a sentencing enhancement for
a third nonviolent felony conviction, it ended the previously mandatory 25-year-to-life sentences in these
cases.48 In April 2013, Georgia Governor Nathan Deal
signed into law HB 349, a bill that broadened the state’s
“safety valve” allowing certain low-level offenders to
avoid enhancements.49

Alexander Surry, a 50-year-old with three children
and five grandchildren, who consistently worked as
a professional painter, roofer, and asphalt paver, is
serving a life without parole sentence imposed in
2002 by the state of Louisiana. Though he had never
been a smoker or a drinker, “he became addicted to
crack and gradually progressed from using the drug
to selling it in order to support his own habit, leading to two convictions for cocaine distribution.”55
When Surry was on parole for his second drug
charge, his parole officer discovered him at home
with a bottle containing a small crack cocaine rock,
for which he was convicted of cocaine possession.
Although the offense ordinarily carries a maximum
sentence of five years, he was adjudicated as a thirdstrike felony offender and sentenced to a mandatory
term of life in prison without parole.56

Eliminate or Narrow the Use of Life without
Parole, Other Severe Sentences
Life sentences may be appropriate in certain cases of
horrific and deliberate unlawful violence. But in the
United States, people guilty of far less serious crimes,
including nonviolent drug and property crimes, have received life sentences, including life without the possibility of parole (which means the individual is sentenced
to die in prison).50
About two-thirds of individuals serving life sentences
have the theoretical possibility of being released via parole before they die.51 But almost a third of those serving
life sentences—49,081 as of 2012—have been sentenced to life without the possibility of parole (LWOP).52
In many states, sentencing options include life or life
without parole. But in some places, all life sentences
are without parole. With the exception of those prisoners
sentenced before 1987, there is no parole for federal
prisoners, including those with life sentences. There is
also no possibility of parole for persons sentenced to life
in six states.53
In state and federal courts, life sentences can be imposed for a single crime or as a result of mandatory sentencing based on prior convictions. For example:

NATION BEHIND BARS

Defendants may end up serving functional life sentences—that is, they end up spending the rest of their
lives in prison due to the cumulative effect of multiple
consecutive sentences that add up to long terms, as in
the case of Rick Barton, noted above, now serving 85
years.

Increase Use of Compassionate and
Geriatric Release of Prisoners
The number and proportion of older prisoners in the US
has grown markedly. In 2007, 16,100 state and federal
prisoners were 65 or older; by 2010, the number had
shot to 26,200, a 63 percent increase, while the overall
sentenced population grew only 0.7 percent.57 Absent
compassionate or geriatric release, many prisoners will
grow old and die behind bars.
A prison sentence that constituted a just and proportionate punishment when imposed may become disproportionately severe in light of changed circumstances, such
as advanced age or grave illness. Aging and dying prisoners often develop medical and mental health conditions that make them unlikely to pose a public safety risk
if released to their families or to nursing homes. Even

HUMAN RIGHTS WATCH

younger prisoners can become bedridden because of illness or accidents. In such situations, the wisdom of
keeping an individual in prison can diminish; indeed,
continued incarceration can become senseless or cruel,
especially if the offender has already served a significant
portion of their sentence.
Dozens of states and the federal government have policies that permit early release for prisoners, most typically for medical reasons, but few prisoners benefit.58
Dying, desperately ill, and permanently incapacitated
prisoners are often denied early release solely because
of the nature of the crime they committed—even if it was
long ago and even if they are no longer physically or
mentally capable of committing such crimes again. In
some cases the laws themselves preclude early release
for prisoners convicted of violent or sex crimes. But even
when such releases are permitted by law, officials often
refuse to order such releases because they are concerned about public opposition.
In 2012, Human Rights Watch and Families Against
Mandatory Minimums jointly published a report regarding “compassionate release” in the federal prison system.59 We found an essentially dysfunctional program
that lacked basic procedures to ensure fair and reasoned
decision-making, inadequate program supervision, arbitrary and unfounded rejections of prisoner requests for
release, and a lack of understanding at all levels of the
system of the importance of compassionate release.
Many of our findings were echoed by a subsequent review of the program by the Inspector General’s Office in
2013.60 We have little doubt that in-depth studies of
state early release systems would reveal similar problems. US Attorney General Eric Holder announced in August 2013 that he was directing the Bureau of Prisons to
expand its use of, and the criteria for, compassionate release.
As mentioned above, the ICC, which has jurisdiction over
gravely serious crimes such as genocide, may impose up
to 30 years or a life sentence on convicted offenders.
However, the governing statute of the ICC requires that
“when the person has served two thirds of the sentence,
or 25 years in the case of life imprisonment, the Court
shall review the sentence to determine whether it should
be reduced.”61 Although many US state and federal sentences are far longer than these, the criminal justice systems often lack any effective mechanisms by which
individuals can obtain periodic and meaningful opportunities for release.

13

Keeping a prisoner behind bars when it no longer meaningfully serves any legitimate purpose of punishment
cannot be squared with human rights. It is also expensive, and increasingly so as the number of older prisoners continues to soar, keeping prisons overcrowded and
requiring ever larger prison medical budgets.62

Jimmy Merjil, 70, serving life under the three strikes law for petty
theft, sits in his cell at San Quentin state prison in San Quentin,
California, June 8, 2012.
© 2012 Lucy Nicholson/Reuters

14

NATION BEHIND BARS

HUMAN RIGHTS WATCH

15

RECOMMENDATION 2:
Treat Youth and Adult
Offenders Differently
Tailor Prosecution, Sentencing, Custody of
Youth to Their Needs and Potential
Youth under the age of 18 can commit serious offenses,
but they should not be subject to adult criminal justice
procedures that fail to take their needs, vulnerabilities,
and inherent capacity to grow and change into account.
Unfortunately, more than two decades ago, fear of adolescent “super-predators” swept the nation and many
states and the federal government enacted laws that
subjected youth to the same processes and sanctions
as adult offenders. Super-predators proved to be a myth
(in fact, juvenile crime rates plummeted63 and one of the
principal researchers who coined the phrase has since
admitted his dire predictions were wrong);64 but the laws
remained on the books.
In some states, there is no minimum age of adult jurisdiction, meaning that even very young children can be
tried in adult court.65 Some states use hearings to determine which youth should be tried in adult court. In other
states, youth of certain classes (such as all 16 and 17year-olds, or all who are charged with certain crimes) are
automatically tried in the adult system without any judicial analysis as to whether they belong there.66 Seventeen jurisdictions have statutes that allow prosecutors
broad discretion to decide which children to charge as
adults.67
When convicted in the adult system, children typically
receive the same sentences, are incarcerated in the
same prisons, and in some states in the same cells, as
much older prisoners.68 Human Rights Watch estimates
based on Bureau of Justice Statistics data that in 2011,
more than 95,000 youth under the age of 18 were held
in adult prisons and jails across the United States.69
Children convicted as adults also endure all the same
potentially life-long collateral consequences originally
intended for adult offenders: loss of the right to vote,
disqualification from employment or government aid,
student loans, public housing, and other benefits.70
The International Covenant on Civil and Political Rights
(ICCPR), to which the United States became a party in
1992, specifically acknowledges the need for special

16

treatment of children in the criminal justice system and
emphasizes the importance of their rehabilitation.71 Article 10(3) requires the separation of youth offenders
from adults and the provision of treatment appropriate
to their age and legal status. Article 14(4), which was cosponsored by the United States,72 mandates that criminal procedures for children “take account of the age and
the desirability of promoting their rehabilitation.”73 With
regard to sentencing, the ICCPR requires states to respond to the offenses children commit by focusing on
positive measures and education rather than punishment.74
In violation of these norms, many youth tried as adults
in the United States are sentenced to very harsh adult
sentences—including mandatory minimums; and in
some cases, receive sentences that are even harsher
than their adult co-defendants. For example:
J.R. was 16 when he participated in a robbery that
ended with the victim being killed. J.R. was not the
shooter and had several co-defendants, including
two adults. All were charged under the felony murder
rule. Neither adult was sentenced to life without parole, but J.R. and another minor codefendant were
sentenced to life without parole.75
Recent cases in the US Supreme Court raise serious
questions under US constitutional law about any sentencing scheme in which the differences between youth
and adults are not taken into account. In a case abolishing the death penalty for juveniles, the court stated,
“From a moral standpoint it would be misguided to
equate the failings of a minor with those of an adult, for
a greater possibility exists that a minor’s character deficiencies will be reformed.”76 Similarly, the court has
given weight to:
Developments in psychology and brain science
[that] continue to show fundamental differences between juvenile and adult minds. For example, parts
of the brain involved in behavior control continue to
mature through late adolescence. Juveniles are more
capable of change than are adults, and their actions
are less likely to be evidence of “irretrievably depraved character” than are the actions of adults.77
In a recent opinion outside of the sentencing realm, the
Supreme Court stated, “‘[o]ur history is replete with laws
and judicial recognition’ that children cannot be viewed
simply as miniature adults. We see no justification for
taking a different course here.”78

NATION BEHIND BARS

We cannot predict whether or to what extent the US
Supreme Court—or state supreme courts—will continue
to expand the range of sanctions that cannot constitutionally be applied to persons who committed their
crimes as children. But legislators should not wait for
courts to declare laws unconstitutional. They should
begin a careful review to ensure their laws and procedures acknowledge the differences between children
and adults and protect children’s unique vulnerabilities
and capacity for rehabilitation.

Provide all Youth with Periodic Meaningful
Opportunities for Release
If legislators retain the possibility of incarceration for
youth, they should rewrite laws to ensure periodic review
of continued incarceration and whether it is necessary
in light of the youth’s evolving maturity and capacity to
return to society.
International human rights law emphasizes the need to
periodically assess young people for release because
children are especially capable of growth and change.79

HUMAN RIGHTS WATCH

Youth who were sentenced to life in prison without parole.
© 2005 Private

The need to provide youth with a meaningful opportunity
for release is also consonant with the requirement in
human rights law that imprisonment should be imposed
on youth “only as a measure of last resort and for the
shortest appropriate period of time.”80
The sentence of life without parole is the most egregious
example of a sentence that denies youth an opportunity
for release, and so violates fundamental human rights.81
While no known youth offenders are serving the sentence elsewhere in the world,82 the United States is only
slowly coming into conformity with this prohibition. Despite Supreme Court cases prohibiting its use for youth
convicted of nonhomicide crimes (Graham),83 as well as
the imposition of mandatory sentences of life without
parole (Miller),84 the sentence remains in place for youth
convicted of homicide offenses in many states and
under federal law.

17

YOUTH IN ADULT PRISONS BY STATE

WA

ND

MT

MN
ME
WI

SD
OR

VT

ID
WY

MI

NH

NY

MA
CT

IA

NE

PA
NV

IL
UT

OH

IN

MD
D

CO

KS

MO
KY

CA

DE
VA

TN

OK
AZ

NJ

WV
DC

NC

AR

NM

SC
MS
TX

AL

GA

LA

FL

AK
HI

Snapshot
Sn
apshot of you
youth
th under
under ag
age
e 18 in
in a
adult
dult
prisons
held
pris
ons (youth
(youth h
eld on June 30
30 as
as reported
reported
survey
iin
n most
most recent
recent su
rvvey of prisons).
prisons).
* States shown in white did not submit data.
1

Some states have struggled to legislate in light of Miller
and Graham, with some prosecutors and law enforcement lobbying for bills that abolish life without parole in
name only, but keep the functional equivalent to life sentences on the books. In 2013 Iowa’s Supreme Court examined the governor’s decision to commute a
17-year-old’s sentence of life without parole to one providing a chance at parole only after 60 years. The court
held that the Miller decision applied retroactively, and
rejected the 60 year sentence, stating that:
...much more is at stake in the sentencing of juveniles than merely making sure that parole is possible…. At the core of all of this also lies the profound
sense of what a person loses by beginning to serve
a lifetime of incarceration as a youth.85
In Florida, an appellate court ordered the sentencing
court to replace a life without parole sentence with the
previous statute on the books—a possibility of release
after 25 years for youth offenders, very different from the
50 years-to-life without parole proposed during the 2013
legislative session. In late 2013, the Massachusetts

18

Source: Map includes data from all states that
have reported a young person under age 18 held
on June 30 in 2010, the most recent year of the
survey. Guerino, Paul, Paige M. Harrison, and
William Sabol, "Prisoners in 2010", Bureau of
Justice Statistics, US Department of Justice.

355

Supreme Court abolished the life without parole sentence for any offense committed by a person under the
age of 18. In March 2014, West Virginia also abolished
the sentence and established that every child convicted
in adult court will be eligible for parole after serving 15
years.
And in California, the state has instituted two new laws
creating periodic review of youth sentences. The first,
California Penal Code 1170(d)(2), allows a judge to review the case of someone who was under 18 the time of
a crime and sentenced to life without parole. Under the
new law, the court may impose a sentence of 25-to-life
instead, offering youth the possibility of parole. The second, California Penal Code 3051, creates a new parole
process for youth convicted as adults and sentenced to
adult prison terms. The “Youth Offender Parole” process
takes into account the age of an offender at the time of
the crime and provides the possibility of early release
from prison based on growth and maturity. The new law
requires the board of parole hearings to give a “meaningful opportunity” of release to youth sentenced to
adult prison terms.

NATION BEHIND BARS

The Ryan Correctional Facility in Detroit. Michigan
is among the states that sentence offenders under
age 18 to life without the possibility of parole.
© 2007 Associated Press

HUMAN RIGHTS WATCH

19

Regina Vega gets a hug from Gerard Jackson
after completing a drug treatment program in
Sacramento, California. Under Proposition 36,
which voters passed in 2000, Vega and
Jackson were among those low-level drug
offenders who were sent to treatment
programs instead of jail.The program once
served 36,000 offenders each year. Counties
are scrambling to provide treatment programs
after former Gov. Arnold Schwarzenegger cut
the last $18 million in state funding in 2010.
© 2010 Rich Pedroncelli/Associated Press

ues.” We do not expect many lawmakers to endorse recreational drug
use; indeed, we assume most will
continue to oppose it. But we hope
more and more will come to realize
that criminalizing it contravenes fundamental rights.

RECOMMENDATION 3:
Promote Drug Policies that
Respect Liberty, Autonomy,
and Privacy
US laws have long criminalized conduct that does not
impose unwanted harm on others but which the majority
has condemned as immoral or inconsistent with public
welfare. Although these laws—for example, the criminal-

20

ization of sex between consenting adults of the same
gender—flatly contradict the nation’s commitment to individual “liberty and the pursuit of happiness” and the
notion of limited government, they remained on the
books for decades. Laws discriminating on the basis of
sexual orientation continue to crumble rapidly because
the courts and ever growing numbers of people—including political leaders—recognize such laws are inconsistent with respect for fundamental rights and freedoms.
There are also signs that the public is beginning to rethink a similar type of criminal law based primarily on
notions of social morality, health, and “traditional val-

NATION BEHIND BARS

Subjecting individuals to criminal
sanctions for personal drug use or
possessing drugs for personal use infringes on their autonomy and right to
privacy. Limitations on autonomy and
privacy cannot be justified unless
they meet the criteria of legitimate
purpose, proportionality, and necessity. A legitimate purpose of punishment is that of protecting others from
harm—for example, harms from violent acts or theft or harm from the release of toxic substances. Promoting
particular visions of proper private behavior, in the absence of harm to others, is not a legitimate purpose for criminalization. Even
if a credible case could be made that the government
has a legitimate public health interest in curtailing the
use of certain currently illegal substances, penal laws
punishing private drug use fail the tests of proportionality and necessity.

punishing the person whose health it seeks to protect.
And arrest, incarceration, and a criminal record with possibly life-long consequences amount to an inherently
disproportionate government response to someone who
has done no more than use drugs.
In fact, criminal sanctions for drug possession and personal use are in many respects counterproductive to the
purpose of furthering public health, as Human Rights
Watch has repeatedly documented in the past.86 They
deter individuals who use drugs from accessing health
services and treatment, subject them to stigma and discrimination, and increase the risk of infection (for example, with HIV and other blood-borne infections such as
hepatitis). Criminalization can also disrupt the ability of
individuals to secure their right to livelihood and housing, and it can separate families and parents from their
children.
Certainly, drug use in some situations causes or threatens to cause serious harm to others, and states have a
legitimate interest in protecting third parties from such
harms. But to deal with this threat, states may impose
proportionate penal sanctions on harmful behavior that
takes place in conjunction with drug use. Thus, a state
might choose to criminalize driving a car while under the
influence of drugs. It might choose to arrest a person
who seriously neglects or abuses a child, where drug dependence is a factor in the neglect or abuse. It might
make drug use an aggravating factor in an assault. But
in such cases the conduct or offense being punished
with criminal sanctions is not using drugs, but directly
causing or risking harm to others while using drugs.

Governments have many non-penal measures to encourage people to make good choices around drugs and to
protect drug users from harming their own health, including offering substance abuse treatment and social
support. It is not necessary for government to resort to

HUMAN RIGHTS WATCH

21

RECOMMENDATION 4:
Reduce Criminal Sanctions
for Immigration Offenses
Reform Illegal Entry and Re-Entry Prosecutions
Congress should more closely examine the language
and application of criminal laws addressing unlawful
entry or re-entry into the United States to make sure that
criminal prosecution is reserved for the most serious
cases and that persons seeking to enter or re-enter the
country illegally in order to be with their families or to
seek asylum from persecution are not subject to criminal
sanctions. When such individuals are already subject to
deportation, it is questionable why they should be sent
to prison first.
All nations have a legitimate interest in regulating the
entry of non-citizens into their territories. While the US
has many civil laws regulating immigration, it has since
at least the 1950s also authorized increased criminal
prosecution of non-citizens seeking to unlawfully enter
into or remain in the country. Such criminalization is
troubling, since, as the UN special rapporteur on the
human rights of migrants has stated, “[I]rregular entry
or stay should never be considered criminal offences:
they are not per se crimes against persons, property, or
national security.”87
For many years, there were few criminal prosecutions of
persons who crossed the border without permission.
Today, such immigration offenses account for over 40
percent of all federal criminal prosecutions and constitute almost 30 percent of new admissions to the federal
prison system.88 As documented by Human Rights
Watch, illegal entry and reentry are the most prosecuted
federal crimes in the country today, outnumbering prosecutions for drug offenses, white-collar crime, firearms
offenses, and other commonly prosecuted federal
crimes.89

Men recently deported from the United States
wait in line to be registered with Mexican
authorities at the border in Nogales, Mexico.
© 2010 Associated Press

22

NATION BEHIND BARS

HUMAN RIGHTS WATCH

In the past, many of these cases would have been handled
through the civil immigration system, as prosecution
was generally reserved for those with serious prior criminal
convictions. Over the past decade, however, an increasing proportion of defendants for illegal entry and reentry
have minor or no criminal history.90 Indeed, many of the
persons convicted of entry or reentry offenses were migrating across the border to reunite with US-based family
members or to flee persecution. For example,

23

Robert Lopez, an unauthorized immigrant who had
lived in the US since he was a child, was deported
after a 2003 assault conviction stemming from a
fight. Married to a US citizen with four US citizen
children, he applied to return legally and was waiting in Mexico for a decision on his application when
his mother told him that his wife was addicted to
drugs. Concerned for his children’s safety, Robert
returned to the US illegally. When he tried to obtain
custody of his children, his wife reported him to immigration authorities. Robert was convicted of illegal re-entry and sentenced to prison for
four-and-a-half years, over four times as long as the
sentence he served for assault ten years earlier.91
Brenda R., a 45-year-old former long-term resident
of Dallas, Texas, has tried three times to return to
the United States because she feared remaining in
Mexico. Each time she tried to re-enter, she says,
she was criminally prosecuted and given no chance
to apply for asylum. In April 2012, her two adult sons
were gunned-down in the parking lot of a bar in Chihuahua, Mexico, the site of well-known drug violence. Brenda traveled to Chihuahua to bury her
sons. She said, “I [also] went to investigate.… When
I got [to the crime scene], there were still blood
stains and bone fragments of my sons.” She started
to ask questions about the investigation and filed a
formal complaint with the Chihuahua state human
rights commission. She hoped it would help bring
some attention to the case, even though local residents and the police warned her to stop her inquiries. She became fearful of remaining in Mexico,
and wanted to return to the US to join her husband
and two US-citizen children. For each of three attempts to re-enter the US, she was convicted of illegal entry or reentry crimes and sentenced to serve
5, 9, and 60 days in prison, respectively.92
Congress could mitigate the current harshness of the
law by reducing the current 20-year maximum for illegal
reentry to the pre-1988 two-year maximum sentence
and limiting prosecutions to people with convictions for
serious, violent felonies. Prosecuting asylum-seekers
should cease altogether as a violation of international
law. As noted by an assistant federal defender in Los Angeles, “The motivations for committing [illegal reentry]
are not the motivations for committing most other
crimes. [I]t’s basically your desire to be with your family.”93 Congress can regulate immigration and protect
public safety without sending people to prison solely for
trying to join their families or seek refuge.

24

Mario Chavez shares a moment with his wife,
Lizeth Chavez, through the border fence at
Playas de Tijuana during a weekend family visit.
Mario, a US citizen, cannot leave the US
because of parole restrictions, and Lizeth, a
Mexican citizen, does not have a visa to go to
the United States. The couple, which has two
children, had been meeting every Saturday
since December 2007. Family visits and picnics
held on the beach at the border wall were once
common for people with family on both sides of
the border, but have since been severely
restricted by the US Border Patrol.
© 2008 David Maung

NATION BEHIND BARS

HUMAN RIGHTS WATCH

25

RECOMMENDATION 5:
Ensure Drug Laws
and Drug Law Enforcement
are not Discriminatory
Criminal laws in the United States are race-neutral on
their face—that is, they do not explicitly discriminate by
race. But even race-neutral laws can be discriminatory if
they are applied by law enforcement in ways that lead to
unwarranted racial disparities. The vastly different rates
at which racial groups are arrested and imprisoned for
drug crimes are unwarranted and hence constitute prohibited discrimination under human rights law.

End Unwarranted Racial Disparities Due To
Drug Law Enforcement Practices
US courts require clear evidence of malign intent, in
other words racism, before they will hold a law or practice unconstitutional in equal protection cases. But public officials and legislators should be guided by the
broader understanding of discrimination reflected in the
International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD), to which the United
States is a party.
ICERD prohibits all policies and practices that have the
purpose or effect (emphasis added) of restricting rights
on the basis of race.94 If policing practices create or exacerbate unwarranted racial disparities, then governments must act affirmatively to end the discrimination.95
When laws have an unintended racially disparate impact, ensuring equal protection of the laws requires consideration of whether the law’s legitimate purposes
could be furthered through different means.
Racial disparities in drug law enforcement are longstanding, stark, and unjustifiable. US criminal laws governing the possession, manufacture, and sale of
“recreational” drugs have been enforced much more aggressively in minority communities than elsewhere. As
a result, although whites and blacks use and sell drugs
at comparable rates, blacks are arrested and incarcerated on drug charges that greatly exceed their proportion
of the general population and among drug offenders
(both users and sellers).
African Americans are arrested for drug offenses, including possession, at three times the rate of white men.96
On average, an African American person is 3.73 times

© 2009 Getty Images

26

NATION BEHIND BARS

HUMAN RIGHTS WATCH

27

Inmates at Chino State Prison sit inside a metal cage in
the hallway on December 10, 2010, in Chino, California.
© 2010 Kevork Djansezian/Getty Images

The United States Sentencing Commission has exhaustively catalogued the many reasons why this sentencing
differential has no grounding in science and is not necessary to protect low income neighborhoods. Thus, the
fact that there remains a differential between the two
forms of cocaine reflects a political compromise, not empirical evidence, about the nature and consequences of
crack compared to powder.107
In fiscal year 2012, blacks constituted 82.6 percent of
federal crack defendants, even though in absolute numbers there are many more white crack users than
black.108 The median federal crack sentence was sixand-a-half years (78 months), compared to five years (60
months) for powder cocaine offenses. 109 African Americans thus disproportionately bear the brunt of federal
crack sentencing. There is no way to square this fact with
the human rights prohibition on laws that have racially
discriminatory effects.

more likely to be arrested for marijuana possession than
a white person, even though African Americans and
whites use marijuana at similar rates.97 Although they
are only 13 percent of the US population,98 African Americans represent 31.7 percent of drug arrests,99 40.7 percent of state prisoners serving time for drug offenses100
and 43.7 percent of federal defendants serving time for
drug offenses.101
These racial disparities are primarily rooted in choices
that law enforcement agents make about the communities in which they search for drugs, and the drugs that

28

they will prioritize for enforcement. Race influences the
public’s and law enforcement’s perceptions of the danger posed by those who use and sell illegal drugs, the
choice of drugs that warrant most public attention, and
the choice of communities in which to concentrate drug
law enforcement.102

Eliminate Crack/Powder Cocaine
Sentencing Disparities
Federal sentencing laws that impose higher sentences
for crack cocaine offenses than for powder cocaine of-

NATION BEHIND BARS

fenses may not appear to be racially biased, but there is
little doubt that racial concerns largely fueled their adoption in 1986.103
Crack was associated with poor young blacks, a group
considered “dangerous, offensive and undesirable.”104
The justly infamous federal sentencing differential of
100 to 1 for crack and powder cocaine offenses—wherein
it took 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum sentence105—has been reduced to 18 to 1 pursuant to the Fair
Sentencing Act of 2010.106

HUMAN RIGHTS WATCH

Federal legislators are directly responsible for the federal crack/powder sentencing differential embodied in
federal law. But state and federal legislators are also responsible, albeit indirectly, for the dramatically different
rates of arrest that fuel racial disparities in incarceration
for drug offenses. Legislators could direct law enforcement agents to ensure they refrain from racial profiling
and, using the power of the purse, could press them to
stop concentrating drug law enforcement in minority
communities. They could require law enforcement officials to document racial disparities in drug law enforcement in their jurisdictions and to develop plans to
remedy those disparities.
The overarching point is that legislators cannot hide
from the facts on the ground. Drug law enforcement in
the United States continues to violate basic principles
of equal justice. If legislators wish to continue to use
penal laws to pursue anti-drug objectives, they must find
feasible, cost-effective ways to end the sorry legacy of
racial discrimination those laws have yielded to date.

29

CONCLUSION

FOR MORE INFORMATION

No Equal Justice: The Prison Litigation Reform Act in
the United States (June 2009)

Opinions may differ as what criminal justice reforms are
needed in the United States, but the beginning of a robust debate is encouraging. We hope it will be shaped
by facts and principles. In this briefing paper, we have
offered a summary of some key human rights principles
that lawmakers and others could use to craft fair and effective reforms. As the growing bipartisan embrace of
criminal justice reform indicates, protecting public
safety, enhancing human dignity, and promoting the
human right to liberty are mutually achievable goals.

For general inquiries, please contact:

Testing Justice: The Rape Kit Backlog in Los Angeles
City and County (March 2009)

Alison Parker, Director, US Program,
Human Rights Watch, parkera@hrw.org
Jamie Fellner, Senior Advisor, US Program,
Human Rights Watch, fellnej@hrw.org

For inquiries on the treatment of youth offenders,
please contact:
Alba Morales, Researcher, US Program,
Human Rights Watch, moralea@hrw.org

For inquiries on criminal sanctions for immigration
offenses, please contact:

ACKNOWLEDGEMENTS

Grace Meng, Researcher, US Program,
Human Rights Watch, mengg@hrw.org

This report was conceived by Jamie Fellner, senior
advisor, and jointly authored by Fellner, Alison Parker,
director, and Maria McFarland, deputy director of the US
Program of Human Rights Watch. Additional research
and editing were provided by Grace Meng and Alba
Morales, researchers in the US Program, Brian Root,
quantitative analyst, and Antonio Ginatta, advocacy
director of the US Program. Elizabeth Calvin, Children
Rights Division senior advocate, also edited the report.
Dinah Pokempner, general counsel, and Danielle Haas,
senior editor, provided legal and program review. Layout
and production were coordinated by Jeanne Jeong.
Fitzroy Hepkins, administrative manager, provided
production assistance.

Human Rights Watch reports on criminal justice:
Branded for Life: Florida’s Prosecution of Children as
Adults under its “Direct File” Statute (April 2014)
An Offer You Can’t Refuse: How US Federal Prosecutors
Force Drug Defendants to Plead Guilty (December 2013)
Raised on the Registry: The Irreparable Harm of
Placing Children on Sex Offender Registries in the US
(May 2013)

Targeting Blacks: Drug Law Enforcement and Race in
the United States (May 2008)
No Easy Answers: Sex Offender Laws In the United
States (September 2007)
Cruel and Degrading: The Use of Dogs for Cell
Extractions in US Prisons (October 2006)
So Long As They Die: Lethal Injections in the United
States (April 2006)
The Rest of Their Lives: Life without Parole for Child
Offenders in the United States (October 2005; update
published May 2008)
Ill-Equipped: US Prisons and Offenders with Mental
Illness (October 2003)
Collateral Casualties: Children of Incarcerated Drug
Offenders in New York (June 2002)
No Escape: Male Rape in US Prisons (April 2001)
Beyond Reason: The Death Penalty and Offenders with
Mental Retardation (March 2001)

The Answer is No: Too Little Compassionate Release
in US Federal Prisons (November 2012)

Punishment and Prejudice: Racial Disparities in the
War on Drugs (May 2000)

A Red Herring: Marijuana Arrestees Do Not Become
Violent Felons (November 2012)

Out of Sight: Super-Maximum Security Confinement in
the US (February 2000)

Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States
(October 2012)

Red Onion State Prison: Super-Maximum Security
Confinement in Virginia (May 1999)

Against All Odds: Prison Conditions for Youth
Offenders Serving Life without Parole Sentences
in the United States (January 2012)
The Price of Freedom: Bail and Pretrial Detention of
Low Income Nonfelony Defendants in New York City
(December 2010)

NATION BEHIND BARS

Mixed Results: US Policy and International Standards
on the Rights and Interests of Victims of Crime
(September 2008)

Capitol Offense: Police Mishandling of Sexual Assault
Cases in the District of Columbia (January 2013)

Old Behind Bars: The Aging Prison Population in the
United States (January 2012)

30

Decades of Disparity: Drug Arrests and Race in the
United States (March 2009)

HUMAN RIGHTS WATCH

Losing the Vote: The Impact of Felony
Disenfranchisement Laws in the U.S. (October 1998)
Cold Storage: Super-Maximum Security Confinement in
Indiana (October 1997)
Cruel and Usual: Disproportionate Sentences for New
York Drug Offenders (March 1997)
Race and Drug Law Enforcement in the State of
Georgia (July 1996)

31

ENDNOTES
1

See Human Rights Watch, World Report 2013, United States
chapter, https://www.hrw.org/world-report/2013/country-chapters/united-states (accessed Sept. 10, 2013). China, which reports
approximately 1.6 million people in prison, may substantially underreport its incarcerated population (failing to include prisoners in
“black jails,” or those who are undergoing “reeducation through
labor” and other treatment tantamount to imprisonment). Yet, even if
China’s incarcerated population is greater than that of the United
States, China’s population is four times that of the US and the US
rate of imprisonment would remain substantially higher than
China’s.

http://www.hrw.org/news/2009/10/02/state-distribution-juvenileoffenders-serving-juvenile-life-without-parole.

23
18 U.S. Code § 3551; Federal Sentencing Guidelines Manual
§§ 5B1.1-5F1.8 (2013).

http://www.nytimes.com/1992/06/17/us/court-overturns-a-toughdrug-law.html (accessed September 6, 2013).

11

24
International Covenant on Civil and Political Rights (ICCPR),
adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171,
entered into force March 23, 1976, Art. 10.

36

Carson and Golinelli, “Prisoners in 2012,” http://www.bjs.gov/
content/pub/pdf/p12tar9112.pdf, Table 3 and Appendix Table 11.
12
ACLU, “A Living Death: Life Without Parole for Nonviolent
Offenses,” 2013, https://www.aclu.org/criminal-law-reform/
living-death-life-without-parole-nonviolent-offenses-0
(accessed February 12, 2014).
13

Carson and Golinelli, “Prisoners in 2012,”http://www.bjs.gov/
content/pub/pdf/p12tar9112.pdf, p. 2.

14

Carson and Golinelli, “Prisoners in 2012,” http://www.bjs.gov/
content/pub/pdf/p12tar9112.pdf, Table 3 and Appendix Table 11.

15
2

Lauren E. Glaze and Erin Herberman, “Correctional Populations in
the United States, 2012,” Bureau of Justice Statistics, US Department
of Justice, December 2013,
http://www.bjs.gov/content/pub/pdf/cpus12.pdf (accessed February 12, 2014), Table 2.

Kamala Mallik-Kane, Barbara Parthasarathy, and William Adams,
“Examining Growth in the Federal Prison Population, 1998 to 2010,”
Urban Institute, September 2012, http://www.urban.org/UploadedPDF/412720-Examining-Growth-in-the-Federal-Prison-Population.pdf
(accessed September 30, 2013).

16
3

E. Ann Carson and Daniela Golinelli, “Prisoners in 2012”, Bureau of
Justice Statistics, December 2013,
http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf (accessed
April 22, 2014), p.1.

4

Nathan James, “The Federal Prison Population Buildup: Overview,
Policy Changes, Issues, and Options,” Congressional Research Service, January 22, 2013, http://www.fas.org/sgp/crs/misc/R42937.pdf
(accessed June 11, 2013). In 2012, there were 217,815 prisoners under
the jurisdiction of federal correctional authorities, according to the
Bureau of Justice Statistics. The next largest total came from Texas,
with 166,372 under the jurisdiction of Texas correctional authorities.
Glaze and Herberman, “Correctional Populations in the United
States, 2012,” http://www.bjs.gov/content/pub/pdf/cpus12.pdf, Appendix Table 6.

5

Compare “Prisoners in State and Federal Institutions on December
31, 1983,” Bureau of Justice Statistics, US Department of Justice,
June 1, 1986, http://www.bjs.gov/content/pub/pdf/psfi83.pdf (accessed February 14, 2014), Table 13. (in 1983, the state prison population totaled 397,160) with Carson and Golinelli, “Prisoners in
2012,” Bureau of Justice Statistics, December 2013,
http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf, Appendix
Table 6. At the end of 2012, the prison population totaled 1,352,582.

6

The number does not include 152,780 persons returned to prison
that year for parole violations. Carson and Golinelli, “Prisoners in
2012,” http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf, Table 1.

7

“What conservatives are saying,” Right on Crime,
http://www.rightoncrime.com/the-conservative-case-for-reform/
what-conservatives-are-saying/ (accessed February 14, 2014).

E. Ann Carson and William J. Sabol, “Prisoners in 2011,”
http://www.bjs.gov/content/pub/pdf/p11.pdf (accessed April 22,
2013), Table 8. See Jamie Fellner, “Race and Drugs,” in The Oxford
Handbook of Ethnicity, Crime, and Immigration, ed. Sandra M.
Bucerius and Michael Tonry (Oxford: Oxford University Press, 2013),
http://www.hrw.org/sites/default/files/related_material/
Race%20and%20Drugs.pdf (accessed April 22, 2014) for more
on race and drug law enforcement.

9

There are 4,058 federal prisoners and 45,023 state prisoners serving life without parole. Ashley Nellis. “Life Goes On: The Historic Rise
in Life Sentences in America,” The Sentencing Project, 2013, p.6,
http://www.sentencingproject.org/detail/news.cfm?news_id=1636&
id=167 (accessed February 14, 2014).

26
Universal Declaration of Human Rights (UDHR), adopted December
10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), Art. 26 (2).
27
National Conference of State Legislatures, “Principles of Effective
State Sentencing and Corrections Policy , A Report of the NCSL
Sentencing and Corrections Work Group,” August 2011,
http://www.ncsl.org/research/civil-and-criminal-justice/
principles-of-sentencing-and-corrections-policy.aspx#Principles
(accessed February 14, 2014).
28
Human Rights Watch, An Offer You Can’t Refuse: How US Federal
Prosecutors Force Drug Defendants to Plead Guilty, December 2013,
http://www.hrw.org/reports/2013/12/05/offer-you-can-t-refuse, p. 9.

18

United States Sentencing Commission, 2013 Sourcebook of
Federal Sentencing Statistics, http://www.ussc.gov/research-andpublications/annual-reports-sourcebooks/2013/sourcebook-2013
(accessed April 22, 2014), Table 34.

20

For example, the state of Florida restricts job access to felons in at
least 71 different fields. See “Testimony of Marc Mauer,” The Sentencing Project, June 9, 2010,
http://www.sentencingproject.org/doc/publications/cc_House%20J
ud%20Col%20Cons%20Testimony.pdf (accessed February 14, 2014).
Florida also permits all employers to ask about arrests for charges
under the jurisdiction of the adult courts, regardless of whether they
resulted in convictions. See “Inventorying and Reforming State-Created Employment Restrictions Based On Criminal Records: A Policy
Brief and Guide,” Annie E. Casey Foundation, September 2008,
http://www.aecf.org/~/media/PublicationFiles/Employment%20Restrictions%20Policy%20Guide%20Sept%2008.pdf
(accessed February 14, 2014), p. 11.
21

Human Rights Watch & The Sentencing Project, Losing the Vote,
The Impact of Felony Disenfranchisement Laws in the United States,
October 1, 1998, http://www.hrw.org/reports/1998/10/01/losingvote.

22

Human Rights Watch, No Second Chance: People With Criminal
Records Denied Access to Public Housing, November 17, 2004,
http://www.hrw.org/reports/2004/11/17/no-second-chance.

Human Rights Watch, “State Distribution of Youth Offenders Serving Juvenile Life Without Parole (JLWOP)” October 2, 20009,

NATION BEHIND BARS

See for example, Families Against Mandatory Minimums, States
Map, http://famm.org/states-map/ (accessed April 8, 2014).

38

United States Sentencing Commission, “Report to the Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System,” October 2011,
http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties/20
111031_RtC_Mandatory_Minimum.cfm (accessed February 14, 2014),
p. 90-102 (“2011 Mandatory Minimum Report”).

39

Human Rights Watch, Cruel and Usual: Disproportionate Sentences
for New York Drug Offenders, March 1997, http://www.hrw.org/
reports/1997/usny/.

40

Human Rights Watch, An Offer You Can’t Refuse.

41

United States Sentencing Commission, 2013 Sourcebook of Federal
Sentencing Statistics, http://www.ussc.gov/research-and-publications/annual-reports-sourcebooks/2013/sourcebook-2013
(accessed April 22, 2014), Table 43.

Ibid.

Ibid.

43
30

Nellis, “Life Goes On: The Historic Rise in Life Sentences in America,”
http://www.sentencingproject.org/detail/news.cfm?news_id=1636&
id=167; ACLU, “A Living Death: Life Without Parole for Nonviolent Offenses,” https://www.aclu.org/criminal-law-reform/living-death-lifewithout-parole-nonviolent-offenses-0 ).

19

Andrew Ashworth, Principles of Criminal Law, (Oxford: Oxford University Press, 2003), p. 34.

37

42
29

Carson and Golinelli, “Prisoners in 2012,”http://www.bjs.gov/
content/pub/pdf/p12tar9112.pdf, p. 11.

10

32

Most recent data for state felony sentences from 2006: Sean
Rosenmerkel, Matthew Durose and Donald Farole, Jr., “State Felony
Offenses in 2006 – Statistical Tables,” http://www.bjs.gov/content/pub/pdf/fssc06st.pdf (accessed April 22, 2014), Table 1.2. For
federal criminal cases, data from Administrative Office of the U.S.
Courts, “Judicial Business of the United States Courts, Annual Report
to the Director,” http://www.uscourts.gov/Statistics/
JudicialBusiness/2013.aspx (accessed April 22, 2014), Table D-5.

17

8

Alfred Blumstein and A.J. Beck, “Population Growth in U.S. Prisons,
1980–1996,” Prisons, vol. 26 (1999), p. 17-61.

25

In Harmelin, the court stated that: “[T]he fixing of prison terms for
specific crimes involves a substantial penological judgment that, as
a general matter, is properly within the province of the legislature,
and reviewing courts should grant substantial deference to legislative determinations.”Harmelin v. Michigan, 501 U.S. 957, 998(1991).

31

“With the Anti-Drug Abuse Act of 1986, Congress introduced a
mandatory minimum sentencing scheme for federal drug crimes
keyed to the weight and type of the drug involved, apparently believing that weight would be a reasonable proxy for the trafficking role.
However, Congress got the numbers wrong: even low-level offenders
distribute the quantities that garner the minimum sentences Congress intended for more serious traffickers.” Human Rights Watch,
An Offer You Can’t Refuse, p. 25.

When sentencing, the ICC must “take into account such factors as
the gravity of the crime and the individual circumstances of the
convicted person.” Rome Statute of the International Criminal Court
(Rome Statute), A/CONF.183/9, July 17, 1998, entered into force
July 1, 2013, article 78.

45
Opinion Setting Forth Reasons for Sentence at 303, United States
v. Barton, 442 F. Supp. 2d 301 (W.D. Va. Aug. 14, 2006).

32

46

Ibid., article 77.

33
In Solem v. Helm, the US Supreme Court held that the Eighth
Amendment “prohibits not only barbaric punishments, but also
sentences that are disproportionate to the crime committed.”
Solem v. Helm, 463 U.S. 277, 6 (1983).
34

Ewing v. California, 538 U.S. 11 (2003). (the first offenses, for
which Ewing had already served his punishment were first-degree
robbery and three counts of residential burglary); and Lockyer v.
Andrade, 538 U.S. 63 (2003). (Andrade had already served his
punishment for two counts of theft).
35

Harmelin v. Michigan, 501 U.S. 957, (1991). The Michigan State
Supreme Court later struck down a provision in the 1978 Michigan
antidrug law which mandated a life sentence without parole for possession of more than a pound and a half of cocaine. The Michigan
Supreme Court held that this provision was “unduly disproportionate” to the crime and violated the Michigan Constitution. “Court
Overturns a Tough Drug Law,” New York Times, June 17, 1992,

HUMAN RIGHTS WATCH

44

Human Rights Watch, An Offer You Can’t Refuse, p. 48.

Ibid.

47

An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre- and Post-Trial Supervised
Release, The Commonwealth of Massachusetts, Senate No. 2583,
2010.http://www.mass.gov/legis/bills/senate/186/st02pdf/st0258
3.pdf . See an explanation of the law: Barb Dougan, “Drug Sentencing Reforms,” National Lawyers Guild Massachusetts Chapter,
December 2012,http://www.nlgmass.org/2012/12/drug-sentencingreforms/ (accessed February 14, 2014).

48

“US/California: ‘Three-Strikes’ Vote a Humane Step,” Human
Rights Watch, November 7, 2012,
http://www.hrw.org/news/2012/11/07/uscalifornia-three-strikesvote-humane-step.

49

Act to Amend Chapter 7 of Title 5 of the O.C.G.A., Relating to
Appeal or Certiorari by the State in Criminal Cases, so as to Provide
the State with More Direct Appeal Rights; to Amend Part 1 of Article 2
of Chapter 13 of Title 16, Title 17, Article 3A of Chapter 5 of Title 40,

33

and Title 42 of the O.C.G.A., Relating to Schedules, Offenses, and
Penalties for Controlled Substances, Criminal Procedure, Suspension
of Driver’s License for Certain Drug Offenses, and Penal Institutions,
Respectively, so as to Enact Provisions Recommended by the Governor’s Special Council on Criminal Justice Reform in Georgia; to
Amend Article 2 of Chapter 8 of Title 24 of the O.C.G.A., Relating to
Admissions and Confessions; to Provide for Related Matters; to Repeal Conflicting Laws; and for Other Purposes, Georgia General Assembly, HB 349, July 1, 2013. See Families Against Mandatory
Minimums, “New GA Safety Valve Continues Common Sense Trend,”
April 25, 2013, http://www.famm.org/newsandinformation/PressReleases/NewGASafetyValveContinuesCommonSenseTrend.aspx (accessed February 14, 2014).

about-time-aging-prisoners-increasing-costs-and-geriatricrelease.pdf (accessed February 14, 2014), p. 6.
59

Human Rights Watch and Families Against Mandatory Minimums,
The Answer is No, November 30, 2012,
http://www.hrw.org/reports/2012/11/30/answer-no.

60

US Department of Justice, Office of the Inspector General, “The
Federal Bureau of Prisons’ Compassionate Release Program,” April
2013, http://www.justice.gov/oig/reports/2013/e1306.pdf (accessed February 14, 2014).

61

Rome Statute of the International Criminal Court (Rome Statute),
A/CONF.183/9, July 17, 1998, entered into force July 1, 2013, article
110.

50

Christina Sterbenz, “5 People Sentenced to Life in Prison Over
Nonviolent Drug Offenses,” Business Insider, August 14, 2013,
http://www.businessinsider.com/life-sentences-from-mandatoryminimums-2013-8 (accessed April 22, 2014);
Matt Elofson, “Ashfod man gets life sentence for drug distribution,”
Dothan Eagle, September 17, 2013,
http://www.dothaneagle.com/news/crime_court/article_0bb986861fc5-11e3-9871-0019bb30f31a.html (accessed February 14, 2014).
51

In fact, many offenders are not released until long after they become eligible for parole; some may never be paroled. Human Rights
Watch, Old Behind Bars, p. 35.

52
Nellis, “Life Goes On: The Historic Rise in Life Sentences in America,”http://www.sentencingproject.org/detail/news.cfm?news_id=1
636&id=167.

62

Human Rights Watch, Old Behind Bars, p. 72-79.

63
In 1994, juvenile crime had increased over 68 percent from its
1980 level. Office of Juvenile Justice and Delinquency Prevention, US
Department of Justice, “Statistical Briefing Book,” December 17,
2012,
http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05201
(accessed November 25, 2013). In 2010, the juvenile violent crime arrest rate had plummeted almost 55 percent, to well below the 1980
level. Ibid. By 2012, the juvenile violent crime arrest rate hit a 32year low. See Jeffrey Butts, John Jay College of Criminal Justice Research and Evaluation Center, “Violent Youth Crime in U.S. Falls to
New 32-Year Low,” October 4, 2013,
http://johnjayresearch.org/rec/files/2013/10/databit201304.pdf
(accessed December 5, 2013).
64

53

Illinois, Iowa, Louisiana, Maine, Pennsylvania, and South Dakota.
Ashley Nellis and Ryan S. King, “No Exit: The Expanding Use of Life
Sentences in America,” The Sentencing Project, July 2009,
http://www.sentencingproject.org/doc/publications/publications/in
c_NoExitSept2009.pdf (accessed August 29, 2013), p 4. In Louisiana,
one in every nine people in prison (10.9 percent) was serving an
LWOP sentence in 2009, and nationally, there were nine states in
which more than five percent of persons in prison were serving an
LWOP sentence. Ibid

54

Human Rights Watch, An Offer You Can’t Refuse, p. 11.

John J. DiIulio has acknowledged that his dire predictions were
wrong, and now advocates for programs and prevention over incarceration. See Elizabeth Becker, “As Ex-Theorist on Young ‘Superpredators,’ Bush Aide Has Regrets,” New York Times, February 9,
2001, http://www.nytimes.com/2001/02/09/us/as-ex-theorist-onyoung-superpredators-bush-aide-has-regrets.html (accessed December 5, 2013).
65
In 14 states there is no minimum age of adult jurisdiction. David
Tannenhaus and Steven Drizin, “Owing to the Extreme Youth of the
Accused: The Changing Legal Response to Juvenile Homicide,” J.
Crim L. & Criminology , vol. 92 ( 2002), p. 641.

55

ACLU, “A Living Death: Life Without Parole for Nonviolent Offenses,” https://www.aclu.org/criminal-law-reform/living-death-lifewithout-parole-nonviolent-offenses-0 ), p. 142.

56

ACLU, “A Living Death: Life Without Parole for Nonviolent Offenses,” https://www.aclu.org/criminal-law-reform/living-death-lifewithout-parole-nonviolent-offenses-0 ), p. 142.
57

Human Rights Watch, Old Behind Bars, p. 18.

58

There are no national figures, but data obtained by Human Rights
Watch from different sources suggests state and federal laws permitting the early release of prisoners who are terminally ill, permanently
incapacitated, or simply too old to get out of bed are greatly underutilized. In California, 37 prisoners secured early release on medical
grounds in 2011, and the Bureau of Prisons granted a similar number
of prisoner compassionate release in 2012. Texas released 100 prisoners. New York has never had more than 10 medical parolees in a
year. See Tina Chiu, “It’s About Time: Aging Prisoners, Increasing
Costs, and Geriatric Release,” Vera Institute of Justice, April 2010,
http://www.vera.org/sites/default/files/resources/downloads/Its-

34

66

See US Department of Justice, Office of Justice Programs, Office of
Juvenile Justice and Delinquency Prevention, Juvenile Offenders and
Victims: National Report Series, Trying Juveniles as Adults, September 2011, https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf (February 14, 2014).
67

Arizona Rev. Statutes Sec. 13-501(B); Ark. Code, Sec. 9-27-318;
Cal. Welf. & Inst. Code Sec. 707(d); Colo. Rev. Stat. Sec. 19-2-517;
D.C. ST Sec. 16-2301(3); Fla. Stat. Sec. 985.557; Code of Georgia, Sec.
15-11-560; La. Children’s Code, Tit. III, Ch. 4, Art. 305; Mass. Gen.
Laws, Ch. 119, Sec. 54; MCL Secs. 712A.2, 600.606; Montana Code
Sec. 41-5-206; Neb. Rev. Stat. Secs. 43-276, 43-247; NHS Tit. XII, Sec.
169-B:25; Okla. Stat., Tit. 10A, Secs. 2-5-204, 2-5-206; Vermont Stat.,
Tit. 33, Sec. 5203; Virginia Code Sec. 16.1-269.1(C); Wyoming
Statutes Sec. 14-6-203.

rights-institute/files/Case%20No%2012866%20Final%20Observations%20Regarding%20the%20Merits%20of%20the%20Case.pdf
(accessed February 14, 2014) (discussing several cases of individuals below the age of 18 incarcerated in adult prisons in Michigan).
Youth offenders in adult jails and prisons are among the inmates
most susceptible to physical and sexual assault during their incarceration. Many young inmates are placed in isolated segregation,
often constituting solitary confinement, some spending years without any but the most fleeting human contact. Many youth offenders
are denied access to adequate educational and vocational programs. Finally, facing violence, stultifying conditions, and separation
from family and friends, many youth offenders sentenced to adult
prison terms experience psychological harm, including deep depression and intense loneliness. Failed by prison mental health services,
many contemplate and attempt suicide; some succeed. Human
Rights Watch, Against All Odds, January 4, 2012,
http://www.hrw.org/reports/2012/01/03/against-all-odds-0.
69
70

While this document focuses exclusively on the topic of sentencing, Human Rights Watch has published extensively on broader issues surrounding the criminal justice system’s treatment of juveniles
as adults. See, e.g., Human Rights Watch, Growing Up Locked Down;
Human Rights Watch, Against All Odds; Human Rights Watch, The
Rest of Their Lives, October 12, 2005,
http://www.hrw.org/reports/2005/10/11/rest-their-lives-0.
71
The Human Rights Committee has interpreted the ICCPR’s provisions on youth offenders to apply to all persons under the age of 18.
Human Rights Committee, General Comment no. 1, Forty-fourth Session (1992), para. 13, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,
HRI/GEN/1/Rev.7, p. 155.
72
The United States co-sponsored this provision together with Great
Britain and India, and it was adopted unanimously. See Marc
Bossuyt, Guide to the “Travaux Préparatoires”of the International
Covenant on Civil and Political Rights (The Netherlands: Martinus Nijhoff Publishers, 1987), p. 307.
73
The ICCPR contains three additional provisions related to juvenile
justice. Article 6(5) prohibits imposing the death penalty on persons
who committed crimes while under the age of 18. Article 10(2), subparagraph b, mandates the separation of accused children from
adults and the swift adjudication of their cases. Article 14(1) provides an exception for cases involving children to the general requirement that judgments be made public. International Covenant
on Civil and Political Rights (ICCPR), adopted December 16, 1966,
G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976.
74

Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR
Commentary (Kehl: N.P. Engel, 1993), p. 266.

75

Human Rights Watch, When I Die They’ll Send Me Home, October
17, 2008, http://www.hrw.org/node/75357/section/7 .

76

Roper v. Simmons, 543 U.S. 551, 570, (2005).

77

Graham v. Florida, 130 S. Ct. 2011, 2026 (2010).

NATION BEHIND BARS

Article 40 of the CRC recognizes, for child offenders, “the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.” Rule 28 of United Nations
Standard Minimum Rules for the Administration of Juvenile Justice
(“the Beijing Rules”), titled “Frequent and early recourse to conditional release,” specifies that “[c]onditional release from an institution shall be used by the appropriate authority to the greatest
possible extent, and shall be granted at the earliest possible time.”
The commentary to rule 28 further states, “[c]ircumstances permitting, conditional release shall be preferred to serving a full sentence.
Upon evidence of satisfactory progress towards rehabilitation, even
offenders who had been deemed dangerous at the time of their institutionalization can be conditionally released whenever feasible.”
Convention on the Rights of the Child (CRC), adopted November 20,
1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167,
U.N. Doc. A/44/49 (1989), entered into force September 2, 1990.

80

Convention on the Rights of the Child (CRC), adopted November
20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at
167, U.N. Doc. A/44/49 (1989), entered into force September 2,
1990, Article 37.

81

Human Rights Watch, Thrown Away: Children Sentenced to Life
without Parole in Colorado, February 1, 2005,
http://www.hrw.org/sites/default/files/reports/us0205.pdf; Human
Rights Watch, The Rest of Their Lives: Life without Parole for Child Offenders in the United States; Human Rights Watch, Life without Parole for Child Offenders in the United States 2008, May 2008,
http://www.hrw.org/sites/default/files/reports/us1005execsum.pdf
; State Distribution of Children Serving Life Without Parole in the
United States 2009, October 2, 2009,
http://www.hrw.org/news/2009/10/02/state-distribution-juvenileoffenders-serving-juvenile-life-without-parole; Human Rights Watch,
“When I Die, They’ll Send Me Home,”; Human Rights Watch, Update:
When I Die, They’ll Send Me Home, March 1, 2012,
http://www.hrw.org/reports/2012/03/01/when-i-die-they-ll-sendme-home; Human Rights Watch, Against All Odds.

82

M. Leighton & C. de la Vega, Sentencing Our Children to Die in
Prison: Global Law and Practice, UNIV. OF SAN FRANCISCO L.J., 983,
985-86 (2008). See also Brief for Amnesty International, et al., as
Amici Curiae in Support of Petitioner at 15-17, Graham v. Florida, 130
S.Ct. 2011 (2010) (Nos. 08-7412, 08-7621).

83

Graham v. Florida, 560 U.S. 48, (2010).

84

Miller v. Alabama, 132 S. Ct. 2455, 2466 (2012).

85

State v. Ragland, 836 N.W.2d 107, 121 (Iowa 2013).

86

Human Rights Watch, In Harm’s Way, December 11, 2013,
http://www.hrw.org/reports/2013/12/11/harms-way; Human Rights
Watch, Abusing the User, May 6, 2003, http://www.hrw.org/en/reports/2003/05/06/abusing-user-0; Human Rights Watch, Injecting
Reason, September 8, 2003,
http://www.hrw.org/en/reports/2003/09/08/injecting-reason-0 ;
Human Rights Watch, Lessons Not Learned, April 27, 2004,
http://www.hrw.org/en/reports/2004/04/27/lessons-not-learned-0
87

68

See, for example, , Hill vs. The United States of America, InterAmerican Commission on Human Rights, Case No. 12.866, Final Observations Regarding the Merits of the Case, September 4, 2012,
http://web.law.columbia.edu/sites/default/files/microsites/human-

Human Rights Watch, Growing Up Locked Down, p. 2.

79

78

JDB v. North Carolina, 131 S. Ct. 2394, 2404 (2011) (internal citations omitted).

UN Human Rights Council, Report of the Special Rapporteur on the
human rights of migrants, Francois Crepeau, UN Doc. A/HRC/20/24,
April 2, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-

24_en.pdf (accessed May 10, 2013), para. 13.

HUMAN RIGHTS WATCH

35

88

Nathan James, “The Federal Prison Population Buildup: Overview,
Policy Changes, Issues, and Options,” Service, January 22, 2013,
http://fas.org/sgp/crs/misc/R42937.pdf (accessed August 26, 2013)
and Executive Office of the United States Attorneys, “Annual Statistical Reports: Fiscal Year 2012,” http://www.justice.gov/usao/reading_room/reports/asr2012/12statrpt.pdf (accessed October 1, 2013).
The total number of immigration offenders in the Bureau of Prisons
has more than doubled from just over 10,000 in 1999 to 22,500 in
2013. US Department of Justice, Bureau of Justice Statistics, “Prisoners in 2000,” http://www.bjs.gov/content/pub/pdf/p00.pdf (accessed August 26, 2013); Bureau of Prisons, “Quick Facts About the
Bureau of Prisons,” last updated July 27, 2013,
http://www.bop.gov/news/quick.jsp (accessed August 26, 2013).

(accessed February 14, 2014).
99

Federal Bureau of Investigation, “2011 Crime in the United States
Statistics,” http://www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2011/crime-in-the-u.s.-2011/tables/table-43
(accessed February 14, 2014), Table 43A.

100

Carson and Golinelli, “Prisoners in 2012 – Advance Counts,”
Bureau of Justice Statistics Bulletin, July 2013, Table 10,
http://www.bjs.gov/content/pub/pdf/p12ac.pdf (accessed April 22,
2014), p. 11.

101

“Federal Justice Statistics Resource Center,” Bureau of Justice Statistics, http://bjs.ojp.usdoj.gov/fjsrc/ (accessed February 14, 2014).

102
89

Human Rights Watch, Turning Migrants into Criminals, May 22,
2013, http://www.hrw.org/reports/2013/05/22/turning-migrantscriminals.
90

Human Rights Watch, Turning Migrants into Criminals.

91

Human Rights Watch interview with Robert Lopez Francisco, Los
Angeles, California, October 11, 2012.

92

Human Rights Watch, Turning Migrants into Criminals, p. 77.

See Fellner, “Race, Drugs and Law Enforcement in the United
States,” Stanford Law and Policy Review, p. 261; Human Rights
Watch, Targeting Blacks, p. 4-5; Human Rights Watch, Decades of
Disparity, p. 16.

103

Fellner, “Race, Drugs and Law Enforcement in the United States,”
Stanford Law and Policy Review, p. 263-265.

104

Ibid., p. 265, n. 39.

105

Human Rights Watch interviews with Firdaus Dordi, assistant
federal defender, Los Angeles, California, August 30, 2012, and
January 24, 2013.

United States Sentencing Commission, “Report to the Congress:
Cocaine and Federal Sentencing Policy,” 2002; United States Sentencing Commission, “Report to the Congress: Cocaine and Federal
Sentencing Policy,” p. 3 (on the 100 to 1 sentencing differential).

94

106

93

International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106
(XX), annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc A/6014
(1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified
by the United States on November 20, 1994. Under ICERD, racial discrimination is defined as “any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life.” ICERD, Part I, article 1(1).

95

“States Parties condemn racial discrimination and undertake to
pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms…. Each State Party undertakes to engage in no act or practice of racial discrimination… and to
ensure that all public authorities and public institutions, national
and local, shall act in conformity with this obligation…” ICERD, Part I,
article 2(1)(a). For a more detailed analysis, see Jamie Fellner, “Race,
Drugs and Law Enforcement in the United States,” Stanford Law and
Policy Review, vol. 20 (2009).

96

See Fellner, “Race, Drugs and Law Enforcement in the United
States,” Stanford Law and Policy Review). Human Rights Watch, Targeting Blacks, May 4, 2008,
http://www.hrw.org/reports/2008/05/04/targeting-blacks-0;
Human Rights Watch, Decades of Disparity, March 2, 2009,
http://www.hrw.org/reports/2009/03/02/decades-disparity-0.

Fair Sentencing Act, Public Law 111-220 (2010).

107

For a general discussion about the effects of crack versus powder
cocaine, see US Sentencing Commission, Report to the Congress:
Cocaine and Federal Sentencing Policy, Chapter 3: Forms of Cocaine,
Methods of Use, Effects, Dependency, Prenatal Effects, and
Prevalence, 2007, http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Drug_Topics/200705_
RtC_Cocaine_Sentencing_Policy.pdf (accessed October 1, 2013), p. 64.

108
The percentages of blacks reporting crack use exceeds those for
whites but the much greater number of whites in the national population means that in absolute numbers far more whites than blacks
have used and use crack. For example, in 2011, 0.2 percent of whites
and 0.7 percent of blacks reported using crack in the past year but
these percentages translate into 333,000 whites, compared to
197,000 blacks. See Substance Abuse and Mental Health Services
Administration, “Results from the 2011 National Survey on Drug Use
and Health: Detailed Tables,” Tables 1.34(A) and 1.34(B)
http://www.samhsa.gov/data/NSDUH/2011SummNatFindDetTables/
NSDUH-DetTabsPDFWHTML2011/2k11DetailedTabs/Web/PDFW/
NSDUH-DetTabsSect1peTabs34to38-2011.pdf
(accessed September 5, 2013), Tables 1.34(A) and 1.34(B).
109

United States Sentencing Commission, 2013 Sourcebook of
Federal Sentencing Statistics, http://www.ussc.gov/research-andpublications/annual-reports-sourcebooks/2013/sourcebook-2013
(accessed April 22, 2014), Figure J.

97

ACLU, “The War on Marijuana in Black and White, Billions of Dollars Wasted on Racially Biased Arrests,” June 2013,
https://www.aclu.org/files/assets/100413-mj-report-rfs-rel1.pdf.

98

US Census Bureau, “State and County Quickfacts, USA (Black or
African American Alone, 2012),” last revised January 7, 2014,
http://quickfacts.census.gov/qfd/states/00000.html

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