Simone Lawson
Torture is prohibited by international law and is considered a violation of human rights. The Universal Declaration of Human Rights, adopted in 1948, states that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This prohibition has been incorporated into various international treaties, such as the International Covenant on Civil and Political Rights and the Convention against Torture, which many countries, including the United States, have ratified. While the U.S. Constitution does not explicitly mention torture, the Supreme Court has interpreted the Fourth, Fifth, and Eighth Amendments as providing protections against it during interrogations and as prohibiting cruel and unusual punishments.
| Characteristics | Values |
|---|---|
| Prohibition against torture | Inserted in the Universal Declaration of Human Rights in 1948 |
| Prohibition against cruel, inhuman, or degrading treatment | Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, and the Convention against Torture |
| U.S. Constitutional Protections | Fourth Amendment, Fifth Amendment, Fourteenth Amendment, and Eighth Amendment |
| U.S. Law | Section 2340A of Title 18, United States Code |
| International Law | Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment |
| State Party Requirements | Criminalize and punish acts of torture, complicity, and participation |
| Committee against Torture | Members elected by secret ballot, biennial meetings, and decisions made by absolute majority vote |
| Amendments | Enter into force when two-thirds of State Parties accept them |
| Dispute Resolution | Arbitration or referral to the International Court of Justice |
| Examples of Prohibited Mistreatment | Forced standing, bright lights, continuous loud noise, sleep deprivation, violent shaking |
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What You'll Learn
The US Constitution's Eighth Amendment
The Eighth Amendment to the United States Constitution, part of the United States Bill of Rights, prohibits the federal government from imposing cruel and unusual punishments. The text of the amendment is as follows:
> Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment was added to the Constitution as a result of objections raised by individuals such as Abraham Holmes and Patrick Henry. Holmes, for instance, feared that the US Congress would have the power to "ascertain, point out, and determine, what kind of punishments shall be inflicted on persons convicted of crimes". He further stated that:
> They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.
Similarly, Henry was concerned with the application of torture as a means of extracting confessions. The Eighth Amendment does not outlaw the death penalty, but it does speak to how states may carry out that punishment, prohibiting methods that are "cruel and unusual".
The US Supreme Court has interpreted the Eighth Amendment as establishing a principle of proportionality, meaning that a fine would not violate the amendment unless it were "grossly disproportional to the gravity of a defendant's offence". In Trop v. Dulles (1958), the Supreme Court held that punishing a natural-born citizen for a crime by revoking their citizenship is unconstitutional, as it involves the "total destruction of the individual's status in organised society". In Robinson v. California (1962), the Court decided that a California law authorising a 90-day jail sentence for "being addicted to the use of narcotics" violated the Eighth Amendment, as narcotics addiction "is apparently an illness", and California was attempting to punish people based on their illness rather than for any specific act.
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The Fifth Amendment and self-incrimination
The Fifth Amendment to the United States Constitution contains a Self-Incrimination Clause, which provides various protections against self-incrimination. This includes the right of an individual not to serve as a witness in a criminal case in which they are a defendant. The Fifth Amendment also protects criminal defendants from having to testify if they may incriminate themselves through their testimony.
The Fifth Amendment privilege against self-incrimination applies when an individual is called to testify in a legal proceeding. This applies whether the witness is in a federal or state court, and whether the proceeding is criminal or civil. In the landmark case Miranda v. Arizona (1966), the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. This means that any time law enforcement takes a suspect into custody, they must make the suspect aware of their rights, including the right to remain silent, the right to an attorney, and the right to a government-appointed attorney if the suspect cannot afford one.
The Fifth Amendment right against self-incrimination does not extend to an individual's voluntarily prepared business papers, as the element of compulsion is lacking. Additionally, the Fifth Amendment does not proscribe the compelled production of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating. For example, in Fisher v. United States (1976), the Supreme Court held that compelling a taxpayer to produce documents produced by their accountants from their own papers does not involve testimonial self-incrimination and is not barred by the privilege.
The protection against self-incrimination has been weakened in some cases, such as in Salinas v. Texas, where the Supreme Court held that a defendant's choice to use the Fifth Amendment privilege can be used against them at trial depending on how and where they do it. In this case, the defendant Salinas answered all questions during noncustodial questioning about a double murder but remained silent when asked if his shotgun would match shells recovered at the scene. Salinas did not explicitly assert the privilege against self-incrimination, and the Court found that his silence indicated guilt. This case set a precedent that silence in the face of questioning may be insufficient to invoke the privilege if it does not provide an adequate opportunity to test whether the information withheld falls within the privilege.
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The Fourth Amendment and unreasonable search or seizure
The Fourth Amendment of the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. This means that the police cannot search a person or their property without a warrant or probable cause. The Fourth Amendment reflects the Framers' intent to avoid the unjust searches and seizures they experienced under English rule.
The Fourth Amendment is often viewed as consisting of two clauses. The first clause states:
> "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” ... “…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
To obtain a search warrant, a law enforcement officer must request one from a judge, providing reliable information that shows probable cause for the search. The warrant must specify the area to be searched and the items or people being sought.
However, there are exceptions to the warrant requirement. For example, in New Jersey v. TLO (1985), the Supreme Court ruled that school officials do not need a warrant to search a student, but only reasonable suspicion under the circumstances. Similarly, in Arizona v. Gant (2009), the Court held that an officer may search a vehicle without a warrant if there is probable cause to believe it contains evidence of a crime.
The Fourth Amendment does not prohibit all searches and seizures, but only those deemed unreasonable under the law. The determination of reasonableness involves balancing the intrusion on an individual's Fourth Amendment rights against legitimate government interests, such as public safety.
The Fourth Amendment has been interpreted to provide constitutional protections against interrogations under torture, encompassing the right not to be abused by the police. This interpretation is supported by other amendments, including the Fifth Amendment's right against self-incrimination and the Eighth Amendment's right to be free from cruel and unusual punishment.
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The Fourteenth Amendment and due process
The Fourteenth Amendment of the US Constitution holds that states are prohibited from depriving "any person of life, liberty, or property, without due process of law". This amendment, along with the Fifth Amendment, guarantees due process, which ensures fundamental fairness in the criminal justice system.
The Fifth Amendment, also known as the right against self-incrimination, encompasses the right to remain silent during interrogations. This amendment has been interpreted by the US Supreme Court in recent decisions, such as United States v. Balsys and Chavez v. Martinez, which demonstrate an authoritarian trend in limiting the liberty it affords. The Fifth Amendment also states that no person shall be deprived of life without due process of law, which is relevant when discussing the death penalty.
Additionally, the Fourteenth Amendment's prohibition on depriving individuals of life, liberty, or property without due process of law aligns with international law and human rights treaties. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, includes a prohibition against torture and cruel, inhuman, or degrading treatment. This prohibition has been incorporated into various international treaties, such as the International Covenant on Civil and Political Rights and the Convention against Torture, to which the United States is a signatory.
The Convention against Torture, adopted by the General Assembly in 1975, provides that each State Party shall ensure that all acts of torture are offences under its criminal law and shall be punishable by appropriate penalties. This convention also establishes a Committee against Torture, with members elected by secret ballot from a list of nominees by State Parties.
In summary, the Fourteenth Amendment's guarantee of due process, along with the Fifth Amendment's right against self-incrimination, provides constitutional protections against torture and cruel and unusual punishment. These protections are further strengthened by international law and human rights treaties, such as the Universal Declaration of Human Rights and the Convention against Torture, which the United States has ratified and is legally bound to uphold.
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The Convention Against Torture
The convention requires member states to take effective measures to prevent torture in any territory under their jurisdiction. This includes ensuring that torture is a criminal offence under municipal law, establishing jurisdiction over acts of torture committed by or against a state's nationals, ensuring that torture is an extraditable offence, and establishing universal jurisdiction to bring cases of torture to trial. Parties must also ban the use of evidence produced by torture in their courts and are barred from deporting, extraditing, or refouling people where there are substantial grounds for believing they will be tortured.
The convention also requires states to train and educate their public servants and private citizens involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention, or imprisonment, regarding the prohibition against torture. Parties are also obliged to prevent all acts of cruel, inhuman, or degrading treatment or punishment in any territory under their jurisdiction and to investigate any allegation of such treatment. Each state party must ensure that any individual who alleges they have been subjected to torture has the right to complain and to have their case promptly and impartially examined by competent authorities. Steps must be taken to ensure that complainants and witnesses are protected against all ill-treatment or intimidation as a result of their complaint.
The Committee Against Torture (CAT) is a body of human rights experts that monitors the implementation of the convention by state parties. All state parties are obliged to submit regular reports to the CAT on the implementation of rights. The committee examines each report and addresses its concerns and recommendations to the state party. In certain circumstances, the CAT may consider complaints or communications from individuals claiming that their rights under the convention have been violated.
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Frequently asked questions
No single provision of the US Constitution expressly prohibits torture. However, the US courts have located constitutional protections against torture in the Fourth, Fifth, and Fourteenth Amendments, as well as in the Eighth Amendment's right to be free of cruel or unusual punishment.
The Eighth Amendment to the US Constitution states that "cruel and unusual punishments [shall not be] inflicted." The Amendment was ratified in 1791, and the precise definition of "cruel and unusual punishment" varies by jurisdiction.
Torture is defined as acts specifically intended to inflict severe physical or mental pain or suffering. This includes practices such as whipping, slapping, depriving a victim of food, water, or sleep, keeping them naked or in a small cell for prolonged periods, holding a gun to their head, or threatening them with mob violence.
Yes, the prohibition against torture is included in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment.
