What is the difference between a terrorist and an enemy combatant

If captured, the individual enjoys combatant immunity — that is, he must be treated as a prisoner of war within the meaning of the Fourth Geneva Convention. He may not be tried by foreign courts for his wartime actions, including killing, maiming and destruction of property, assuming his actions were otherwise consistent with the law of armed conflict. This is the traditional foundational principle on which state-on-state warfare is grounded in terms of the rights and responsibilities of individual soldiers.

If an individual conducts a warlike act against an American and does not fit these criteria for a lawful combatant, he or she was usually considered a criminal suspect, and the domestic courts had jurisdiction. Both sets of attacks used violence to advance political agendas and might have been considered unlawful combatants, yet all the accused were tried in U. Similarly, a Russian spy in the United States committing espionage would be subject to the jurisdiction of U.

In such a circumstance, the spy would be considered an unprivileged belligerent, and would be afforded no rights under the Geneva Conventions provided to a lawful combatant. He would be treated as an ordinary criminal conducting an extraordinary act. The concept finds its principal U. This U. They were tried as unlawful enemy combatants by a military tribunal. Its statement as to why is useful for our purposes and worth quoting at length:. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces.

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

The language in Ex Parte Quirin set the stage for the rejuvenation of the third category of unlawful combatants and the reinvigoration of the use of military detention and military commissions to address their warlike conduct.

Based on this language, on November 13, , President George W. It recognized a category of persons not entitled to prisoner-of-war status or combatant immunity, but also removed them from the jurisdiction of the U. Milligan's membership in the Sons of Liberty did not secure his legitimacy as a belligerent, but neither did it give the government the right to detain him as a prisoner of war. The government further argues that Milligan is inapposite in this case because Milligan, "not being a part of or associated with armed forces of the enemy," could not be held as a belligerent, while Padilla, in contrast, is alleged to be associated with the armed forces of the enemy.

However, it might be recalled that the government had argued that Milligan was allegedly associated with the Confederate Army, a recognized belligerent, and that he was in effect accused of acting as an unlawful belligerent. The petitioners in Quirin were all conceded to be working for the armed forces of an enemy State in a declared war. What association with the enemy short of membership in its armed forces might have brought the saboteurs under military jurisdiction is unclear.

The continuing validity of Milligan has been questioned by some scholars, even though the Quirin Court declined to overrule it, while others assert that the essential meaning of the case has only to do with situations of martial law or, perhaps, civil wars.

Furthermore, it has been noted that the portion of the plurality in Milligan asserting that Congress could not constitutionally authorize the President to use the military to detain and try civilians may be considered dicta with correspondingly less precedential value, inasmuch as Congress had implicitly denied such authority.

However, the Hamdi Court, in distinguishing Milligan from Hamdi , placed emphasis on the fact that Milligan was not considered a prisoner of war, suggesting that it may recognize the distinction between Milligan and Quirin as a function of combatant status. The law of war permits belligerents to seize the bodies and property of enemy aliens. Both sides point to the Steel Seizure Case to provide a framework for the courts to decide the extent of the President's authority.

In that Korean War-era case, the Supreme Court declared unconstitutional a presidential order seizing control of steel mills that had ceased production due to a labor dispute, an action justified by President Truman on the basis of wartime exigencies, despite the absence of legislative authority. Justice Jackson set forth the following oft-cited formula to determine whether Presidential authority is constitutional:.

The parties disagree as to where in this formula the present actions fall. Padilla and Hamdi, and their supporters generally argue that such constitutional authority, if it exists, is dependant upon specific authorization by Congress, which they argue is missing or even explicitly denied pursuant to 18 U. The government, on the other hand, sees the issue as one that falls squarely into the first category, asserting that Congressional authority for the detentions clearly exists, although such authority is not strictly necessary.

Congressional authority, the government argues, may be found in the Authorization to Use Force and a provision of title 10, U. Accordingly, the following sections examine the constitutional authority to take prisoners in war and, if congressional authority is required, whether Congress has provided it, or, with respect to U.

The government argues, and the Supreme Court has agreed, that the identification and detention of enemy combatants is encompassed within Congress' express authorization to the President "to use force against those 'nations, organizations, or persons he determines' were responsible for the September 11, terrorist attacks.

Some argue that since Congress only authorized force and did not formally declare war, that the absence of language explicitly addressing the detention of either alien enemies or American citizens captured away from any battlefield cannot be read to imply such authority.

The government asserts that the lack of a formal declaration of war is not relevant to the existence of a war and unnecessary to invoke the law of war. While a declaration is unnecessary for the existence of an armed conflict according to the international law of war, it may be argued that a formal declaration is necessary to determine what law applies domestically, whether to aliens or citizens.

At least one statutory provision in the Uniform Code of Military Justice UCMJ that might authorize the military to detain certain civilians "in time of war" has been interpreted to mean only a war declared by Congress.

On the other hand, the Manual for Courts Martial MCM defines "time of war" to include declared war as well as "a factual determination by the President that the existence of hostilities warrants a finding that a 'time of war'" exists for the punitive portions of the MCM.

The government notes that its military practice has long been to detain enemy combatants in conflicts where war was not formally declared and Congress did not expressly authorize the capture of enemies. However, we are not aware of any modern court ruling as to whether and under what circumstances citizens may be held as "enemy combatants," where no formal declaration of war has been enacted.

Hamdi confirms that the authorization to employ ground troops against an enemy army necessarily encompasses the authority to capture battlefield enemies, because it is an essential aspect of fighting a battle. International law does not permit the intentional killing of civilians or soldiers who are hors de combat, preferring capture as the method of neutralizing enemies on the battlefield. For example, the Supreme Court held that the President has no implied authority to promulgate regulations permitting the capture of enemy property during hostilities short of a declared war, even where Congress had authorized a "limited" war.

It may be argued that, because the internment of enemy aliens as potential spies and saboteurs pursuant to the Alien Enemy Act requires a declaration of war or a presidential proclamation, it would seem reasonable to infer that the express permission of Congress is necessary for other forms of military detention of non-military persons within the United States, especially those who are U. However, it might also be argued that the United States is a battlefield in the war against terrorism in more than just a metaphorical sense.

The AUMF appears to authorize the use of force anywhere in the world, including the territory of the United States, against any persons determined by the President to have "planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons. The U. Under this view, for example, it might be questioned whether those sources of law provide adequate basis for a war against alleged members of a criminal organization and those who harbor them.

Before the Second Circuit, the government argued that Congress also authorized the detention of enemy combatants in 10 U. The Supreme Court plurality did not address this contention, having found the AUMF to provide the necessary authority. The Second Circuit in Padilla rejected it based on its interpretation of Ex parte Endo requiring that language authorizing funds must "clearly" and "unmistakably" authorize the detention of American citizens. It is not clear from the legislative history of 10 U.

The language was first codified into title 10, U. It first appeared in the Third Supplemental National Defense Appropriation Act of , when the Army requested an addition to the defense appropriations bill to provide the authority for the Secretary of War to.

It was explained that the expenses were in connection with keeping and maintaining prisoners of war and others in military custody not provided for by any appropriation; the example given was the construction of stockade authorized to be built in Honolulu and water supply for prisoners on Oahu. Prior to the amendment coming up for a vote, Senator Danaher took the occasion to look up which sections of law provided authority for the Army to detain persons, and concluded the authority was to be found in the Alien Enemy Act, 50 U.

The amendment was agreed to. Similar language has appeared in subsequent defense appropriations until , when it was added to title 10 as a note to section , and then codified in in its present form.

It is unlikely that 10 U. As an appropriations measure, it probably could not be interpreted to authorize by implication what Congress has not provided for elsewhere, nor is it likely that the language would be interpreted to repeal by implication express language contradicting the interpretation. Legislation regarding prisoners of war and enemy aliens subsequent to the Defense Authorization Act arguably supports the understanding that, at least on the territory of the United States, Congress did not contemplate that any persons would be interned in any status other than that of prisoner of war or enemy alien.

In , at the request of the Attorney General Biddle, Congress enacted a provision making it a criminal offense to procure or aid in the escape of persons interned as prisoners of war or alien enemies.

The petitioners in both Hamdi and Padilla asserted that Congress expressly has forbidden the detention of U. They cite 18 U. This language originated with the repeal of the Emergency Detention Act in The legislative history demonstrates that Congress intended to prevent recurrence of internments in detention camps such as those that had occurred during the Second World War with respect to Japanese-Americans.

Justices Souter and Ginsburg agreed with that as a general principle, but would not have applied it to Hamdi because they argued that the government was not following the customary law of war with respect to persons captured in Afghanistan.

The Department of Justice takes the opposite view. Further, it notes that 18 U. Congress has ample authority under Article I of the Constitution to regulate the capture and detention of enemy combatants. While it appears that express statutory authorization to detain persons arrested away from any battlefield would clarify constitutional separation of powers issues, some constitutional questions may remain.

The Supreme Court has never expressly upheld the administrative detention or internment of U. The bill would permit detainees to have access to attorneys to challenge the basis for their detention, and would not suspend the writ of habeas corpus.

The bill would not apply to combatants captured on a battlefield overseas or suspected criminals arrested abroad who are not U.

Section 2. The bill would take note of the difficulties inherent in determining who is an enemy combatant in the context of the present war, but reaffirm the need to detain enemy combatants as appropriate "to protect the safety of the public and those involved in the investigation and prosecution of terrorism, to facilitate the use of classified evidence without compromising intelligence or military efforts, to gather unimpeded vital information from the detainee, and otherwise to protect national security interests.

Further, the bill would find that the Executive must be allowed broad latitude to establish regulations for determining which U. It would verify that section a of title 18, U. Code "proscribes detention of any kind The bill would find that Congress has authorized the President to detain U. The bill would find that constitutional protection does not cease during wartime, para.

It would reaffirm the right to habeas corpus, para. Section 3. Detention of Enemy Combatants. Section 3 authorizes the detention of enemy combatants, which it defines as U. The authority to establish the standards, process, and criteria to be used for the "enemy combatant" designation would be delegated to the Secretary of Defense, in consultation with the Secretary of State and the Attorney General.

It would not require different procedures depending on the circumstances of capture or arrest of the designee, but, assuming the act would apply extraterritorially, presumably the military would continue using rules of engagement developed for a particular military operation to identify enemy combatants during battle, at least until it could be determined whether a captured person is a U.

Section 4. Procedural Requirements. The procedural rules established under section 3 would be required to establish clear standards and procedures that would preserve the Government's ability to detain U. The rules would also be required to contain procedures for the protection of classified information or information that, if released, could impede the investigation of terrorism.

Lastly, the rules would also have to provide detainees with timely access to judicial review in the U. District Court for the District of Columbia, according to sec. Section 5. Section 5 would limit the duration of detention under the act to a period in which the President certifies that the war against Al Qaeda is ongoing and that there is "an investigation with a view toward prosecution, a prosecution, or a post-trial proceeding" in the case of the detainee. Because it does not expressly limit the latter requirement to proceedings before Article III courts, the condition might arguably be satisfied by trial by military commission or some other administrative tribunal.

Subsection c would authorize the Secretary of Defense to designate an appropriate location for the detentions authorized under the act, and would list minimal requirements for the condition of detention to ensure humane treatment.

Section 6. Reports to Congress. Section 6 would require an annual report to Congress identifying each individual "subject to, or detained pursuant to the authority of [the] Act.

Perhaps the phrase "subject to Section 7. United States Person or Resident Defined. Section 7 borrows the definition of "U. It appears that H. This omission could be read either to imply that the President has the inherent authority under the Constitution to detain persons not covered under the definition in section 7, or unless Congress has provided such authority elsewhere, it could be read to preclude the detention of such persons as enemy combatants.

Section 8. Termination of Authority. Section 8 is a sunset provision terminating the above authority as of December 31, The authority would effectively terminate earlier if the armed conflict with Al Qaeda were to end prior to that date. Petitioners on behalf of U. While H. Some Constitutional Questions.

Congressional Authority. In Ex parte Milligan , the Supreme Court invalidated a military detention and sentence of a civilian for violations of the law of war, despite accusations that Milligan conspired and committed hostile acts against the United States.

The Administration may take the view that only the President, and not Congress, has the constitutional authority to detain enemy combatants, but it appears from the historical survey above that the contention lacks any solid legal precedent. The Korematsu decision is frequently cited as upholding the internment of Japanese-Americans during World War II, but the Supreme Court expressly limited its decision to the legality of excluding these citizens from declared military areas.

Ex parte Endo invalidated the detention of a U. In , Congress passed the Emergency Detention Act EDA , which authorized the President to declare an "Internal Security Emergency," during which the President could authorize the apprehension and detention of any person deemed reasonably likely to engage in acts of espionage or sabotage. However, this authority was never exercised, and the EDA was repealed without any court having had the opportunity to evaluate its constitutionality.

Bill of Attainder. Although the stated purpose for the detention appears to be preventive rather than punitive, the nature of the restraint and the requirement that non-members of Al Qaeda act "knowingly" probably make it punitive for the purpose of finding a bill of attainder.

The requirement for an individualized finding of dangerousness would likely defeat any challenges that the act amounts to a legislative determination of guilt. Ex Post Facto Law. Similarly, H.

However, detention under the act could continue only for so long as "an investigation with a view toward prosecution, a prosecution, or a post-trial proceeding" with respect to a particular detainee were ongoing, and only if the President certifies that detention is warranted to prevent further acts of terrorism, in which case detention could be permissible under ordinary penal statutes. The legality of the detention will likely depend on the extent to which the procedures put in place by the executive satisfy the constitutional requirements for a temporary deprivation of liberty.

Due Process for Non-Resident Aliens. Although Hamdi may be read to apply due process rights only in the case of U. Aliens in the United States, whatever their immigration status, are "persons" whose liberty interests are protected by the Fifth Amendment. Of course, the existence of a state of war might work as an exception to this general rule.

During a declared war, enemy aliens are by statute subject to detention and deportation based on their nationality, in accordance with procedures set up by the executive branch. If non-permanent resident aliens are intended to be subject to detention as enemy combatants, it may be advisable to include them under the same authority that applies to citizens and aliens lawfully admitted for permanent residence in the United States.

International Legal Issues. Because the detention of enemy combatants is a means of conducting war, it is subject to the international law of war. It is not clear whether the Geneva Conventions apply in their entirety during the war against terrorism as they would in the case of an international war, or whether the war should be categorized as an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties," in which case only common article 3 of the Geneva Conventions would apply.

As a general rule, combatants are soldiers and others who engage in combat. Combatants are lawful military targets during combat operations, but the law of war prefers capture and detention as a more humane alternative to killing or wounding them. Aiders and abettors of the enemy and terrorists traditionally have been treated as criminal civilians rather than enemy combatants, and are not ordinarily treated as lawful military targets except perhaps in the extreme circumstances where the use of deadly force would be warranted against a person committing or about to commit a hostile act.

It appears likely that the Supreme Court has not issued its last word on "enemy combatants" and executive detention as a means to prosecute the war on terrorism. As a consequence, the extent to which the Congress has authorized the detention without trial of American citizens as "enemy combatants" will likely remain an important issue for determining the validity of the Administration's tactics.

While the broad language of the Authorization for the Use of Military Force "AUMF" authorizes the use of such military force as the President deems appropriate in order to prevent future acts of terrorism, it remains possible to argue that the AUMF was not intended to authorize the President to assert all of the war powers usually reserved for formal declarations of war. History shows that even during declared wars, additional statutory authority has been seen as necessary to validate the detention of citizens not members of any armed forces.

Courts, however, have not explicitly ruled on the point with respect to circumstances like these. Congressional activity since the Quirin decision suggests that Congress did not interpret Quirin as a significant departure from prior practice with regard to restriction of civil liberties during war.

If that is the case, it may be that Congress intended to authorize the capture and detention of individuals like Hamdi -- persons captured on the battlefield during actual hostilities -- for so long as military operations remain necessary, while withholding the authority to detain individuals like Padilla -- an accused enemy agent operating domestically -- except in accordance with regular due process of law. If Congress were to pass legislation authorizing the detention of persons as enemy combatants, future detentions would likely face fewer hurdles in court.

Enemy combatants may be targeted by the military or captured and detained as a wartime preventive measure. According to the government rules establishing Combatant Status Review Tribunals, in the context of the war against terrorism,. The government has appealed the ruling to the D. Circuit Court of Appeals. Hanft, No. Rumsfeld, S. The judge determined that this relationship is sufficient to qualify her as "next friend" of Padilla, with standing to pursue a petition for writ of habeas corpus on his behalf.

See Alberto R. Newman v. Bush, F. Padilla, S. He asserted the defense of combat immunity, which the government argued is not possible given the fact that President Bush has declared that no member of the Taliban can qualify as a lawful combatant See United States v.

John Walker Lindh, Criminal No. The defendant ultimately agreed to plead guilty to a charge of supplying services to the Taliban, in violation of 50 U.

The United States further agreed to forego any right it has to treat the defendant as an unlawful enemy combatant based on the conduct alleged in the Indictment See United States v. Neither 18 U. Rumsfeld, No. Rumsfeld, F. While noting that no specific procedure is required by law, White House Counsel Gonzales described the procedure as follows:. Lawful combatants have valid combatant status and receive law of war protection; however, others who participate in combat, without valid combatant status, may be treated as criminals under domestic law.

Members of an organized armed force, group or unit who are not medical or religious personnel are combatants. Combatants are lawful targets during combat operations. Prisoners of war are considered noncombatants and must be protected by the Detaining Power. See id. The term "enemy combatant" appears most frequently in the context of military rules of engagement, which stress that only enemy combatants may lawfully be attacked during military operations.

GPW art. GC art. Watkins, U. The Supreme Court declined to review the determination by the Alien Enemy Hearing Board that the petitioner was dangerous, and noted that no question as to the validity of the administrative hearings had been raised.

However, the Court also noted that an enemy alien restrained pursuant to the act did have access to the courts to challenge whether the statutory criteria were met, in other words, whether a "declared war" existed and whether the person restrained is in fact an enemy alien fourteen years or older.

The question appears to turn on whether the label "unlawful combatant" may be applied across the board to all members of a belligerent group, or whether it applies only on an individual basis to those who participate unlawfully in combat.

It would seem that denying belligerent status to all members of a group amounts to denying the group as a whole belligerent status, in which case it would not be possible to engage in armed conflict with it. As one observer comments:.

Then, as now, the purpose of detention was not to punish, but to protect. Looney, F. See 10 U. German authorities expressed reluctance to turn over evidence they had concerning Moussaoui and his ties to the September 11 hijackers because of concerns regarding his possible execution. In September, Germany also said that differences with the United States over the death penalty would probably prevent German authorities from providing evidence to the U.

Department of Justice in the case of Ramzi Binalshibh--an al-Qaeda suspect arrested in Pakistan who had lived in Hamburg and was seen by U. There were thousands of allegations of police abuse during , including unjustified shootings, beatings, chokings, and rough treatment, yet overwhelming barriers to accountability remained, enabling officers responsible for human rights violations to escape punishment.

Victims seeking redress faced obstacles that ranged from overt intimidation to the reluctance of local and federal prosecutors to take on police brutality cases. Officials in many cities failed to acknowledge police brutality and undertake reforms to improve training, supervision, and accountability until high profile police scandals emerged. During the fiscal year that ended on September 30, the last year for which statistics were available , more than twelve thousand civil rights complaints, most alleging abuses by law enforcement officials, were submitted to the U.

Department of Justice. Federal prosecutions of accused officers were rare. During that same period, only fifty-six officers were either convicted or pled guilty to crimes under the civil rights statute. As in past years, federal civil rights prosecutions of accused officers were rare due to inadequate resources, insufficient efforts to collect and review cases, and the evidentiary hurdle of having to prove a "specific intent" by the defendant to deprive the victim of his or her civil rights.

Federal prosecutors also faced some of the same problems as local prosecutors in pursuing such cases, including unsympathetic victims and the public's predisposition to believe police officers.

Videotaped incidents of police violence graphically displayed the problem of police abuse. In July, police in Inglewood, California in the Los Angeles metropolitan area were caught on videotape beating a black sixteen-year-old who was not armed. The tape showed one officer slamming the teen's head onto the hood of his patrol car and punching him in the face. The police department dismissed him in October.

A Los Angeles County grand jury indicted him on state assault charges, and the U. Justice Department announced that it was reviewing the case as well.

Two weeks before the videotaped encounter, the same officer had administered a chokehold and hit a man with his baton, leading to the man's hospitalization for three days.

In August, a bystander videotaped a New York City police officer who appeared to hit a handcuffed man in the face with his police radio. Another officer then sprayed him in the face with pepper spray. Neither officer reported the incident. The videotape was sent to the police commissioner who suspended one of the involved officers; prosecutors subsequently filed assault charges against the officer.

In , Congress authorized the Justice Department to investigate city police departments alleged to have engaged in a pattern or practice of civil rights violations. In cases in which investigators concluded that changes are necessary to protect residents, the Justice Department has authority to either negotiate an agreement with the city to implement reforms or file a lawsuit against the city to force improvements.

As of September, the department had secured eight settlement agreements or consent decrees addressing police department practices. Five of the agreements were reached since the Bush administration took office.

In June , the Department of Justice began inquiries into the Miami police department. Two Miami-Dade special unit police officers pled guilty and a dozen more faced federal civil rights charges in cases arising out of a series of incidents in the mids in which officers planted weapons on the bodies of unarmed people they had just shot to justify the shootings. A Miami Herald investigation found that the fourteen officers had been the subject of allegations of misconduct during their careers--a complaint rate far out of proportion with the rest of the force.

The newspaper also found the officers were usually cleared of any wrongdoing or, if found responsible, escaped meaningful discipline. The Department of Justice also began an investigation of the police department in Prince George's County, Maryland following years of reports of questionable shootings, deaths caused by restraint techniques, and use of police dogs to attack suspects who had already surrendered.

The Cincinnati investigation began after the April shooting of an unarmed African-American man, Timothy Thomas, that led to protests and rioting. The agreement with the Cincinnati police department required the department to improve complaint procedures, training, use-of-force policies, and supervision. The agreement with the Buffalo police department required it to address its improper use of pepper spray, and inadequate complaint procedures, training, and use-of-force reporting procedures.

The absolute number of prison inmates in the United States continued to grow--with 2. According to the Department of Justice, the rate of incarceration was inmates per one hundred thousand residents, the highest in the world, and many times higher than the rate of most industrialized democratic countries. One in every adults was incarcerated. Dramatic racial disparities continued to characterize the correctional population. Although blacks accounted for only 13 percent of the United States population, more than 43 percent of all sentenced inmates were black men.

Nationwide, one in ten black men aged twenty-five to twenty-nine was incarcerated; in some states one in ten of all black men was behind bars. The continued growth in the prison population, despite falling crime rates, reflected the impact of public policies that lengthened sentences, imposed mandatory prison terms even for minor nonviolent drug crimes, and restricted opportunities for early release.

The war on drugs continued to have a dramatic impact on the rates of incarceration in the United States. About 25 percent of state prisoners and 57 percent of federal inmates were convicted of a drug crime.

Of those prisoners, 58 percent have no history of violence or high level of drug dealing activity. According to the United States Sentencing Commission, low-level offenders--e. The concentration of anti-drug law enforcement efforts in heavily minority neighborhoods contributed to the dramatic racial disparity in drug incarceration: blacks accounted for 56 percent and Hispanics 23 percent of state inmates sentenced for drug offenses.

Federal sentencing laws imposed disproportionately harsh sentences on these offenders: The average federal sentence for a street level dealer of crack cocaine was The most disproportionate sentences arose under laws that enhanced sentences for recidivists. The U. Supreme Court in April agreed to hear in tandem two cases raising the question of whether life sentences under California's "three strikes" law, when imposed for minor offenses, violated the constitutional prohibition against cruel and unusual punishment.

In one case, Gary Ewing received a life sentence for shoplifting three golf clubs. Because Ewing had four prior felony convictions for burglary and robbery, he was sentenced under the three strikes law to life with no possibility of parole until he had served twenty-five years. Because he had three prior felony convictions arising from residential burglaries committed thirteen years earlier, he was sentenced to life with no possibility of parole for fifty years. Contracting budgets, lack of political will, and public antipathy made it even harder for correctional systems to provide safe, humane, and productive conditions of confinement.

Correctional officials lacked the funds to recruit, properly train, and retain adequate numbers of staff to provide work, training, or educational programs for inmates in order to keep them occupied and to support their eventual reintegration into society.

Adequate levels of substance abuse treatment or other rehabilitative activities were not present in the majority of correctional facilities. Most prisons were overcrowded, impoverished facilities; many were rife with inmate-on-inmate violence including rape , and in some cases, inmates suffered physical and sexual abuse by correctional staff.

The deliberate indifference of many prison officials to complaints of rape was a major contributing factor to the perpetuation of this devastating human rights abuse. Death row inmates in Mississippi, who were locked in their cells twenty-three to twenty-four hours a day, brought a lawsuit challenging the conditions under which they were confined, "including profound social isolation, unrelieved idleness and monotony, lack of exercise, intolerable stench and pervasive filth, grossly malfunctioning plumbing, constant exposure to human excrement, dangerously high ambient cell temperatures and humidity, grossly inadequate ventilation, constant exposure to mosquitoes, gnats, horseflies, and other insects, deprivation of basic medical, dental and mental health care, and constant exposure night and day to the screams, ravings, and hallucinations of severely mentally ill inmates in adjoining cells.

The failure of correctional systems to provide appropriate conditions of confinement and treatment for mentally ill inmates--whose numbers among prison populations appeared to be growing--prompted at least two major class action lawsuits. In February, mentally ill inmates challenged conditions in a Georgia prison as unconstitutionally cruel, claiming they were victims of a "brutal regime of physical force, mental abuse, intimidation and excessive use of involuntary medication.

In New York, a lawsuit claimed that the Department of Corrections and the state Office of Mental Health had allocated inadequate physical and human resources to provide even minimally adequate care for the estimated sixteen thousand prison inmates estimated to be suffering from serious mental illness. In addition, the suit claimed inmates were punished for behavior related to their illness and confined under punitive high security conditions that aggravated their illness.

Inmate claims of abusive or unnecessary use of force by correctional staff rarely resulted in criminal prosecutions; and those prosecutions that did go forward rarely led to convictions. The difficult hurdles that must be overcome to obtain convictions were exemplified by the acquittal in May of three prison guards accused of the killing of a Florida death row inmate, Frank Valdez. Valdez died with twenty broken ribs, bootmarks on his body, and fractured sternum, vertebrae, nose and jaw.

The state prosecutor dropped charges against five other corrections officers implicated in Valdez' death because of lack of evidence and the difficulty of seeking an impartial jury in a county with four prisons where a high percentage of adults work for or are connected to someone who works for the state corrections system.

There were two important and successful court challenges to conditions in so-called super-maximum security "supermax" prisons where inmates spend twenty-three to twenty four hours a day in small sealed cells with scant opportunity to relieve the isolation, tedium, and harsh security restrictions. In Wisconsin, plaintiff inmates challenged as cruel and unusual the conditions at the state's supermax prison in Boscobel. Conditions at Boscobel were similar to the conditions in most of the country's supermax prisons.

Inmates in the most restrictive Boscobel unit spent day and night confined to single-person cells sealed with a solid door that opened onto an empty vestibule with another steel door. The cells were illuminated twenty-four hours a day, and only a little natural light entered the cells through a small strip of glass at the top of the cell wall.

Inmates were allowed four hours of exercise per week in an empty cell that was slightly bigger than a regular cell, contained no windows or equipment, and was too small for jogging. Prisoners had no access to outdoor exercise facilities.

Their personal possessions were severely restricted. They were allowed only one six-minute telephone call a month, and were not allowed to participate in any prison programs.

Mentally ill prisoners were included among the prisoners confined under these conditions. In February, a federal district court issued a preliminary injunction against prison officials ordering them to transfer mentally ill prisoners out of the Boscobel supermax facility and to undertake a rigorous mental health screening of other prisoners.