Return to: Index of "1994 International Covenant on Civil and Political Rights"
Index of "Treaties and Legal Issues" || Electronic Research Collections Index || ERC Homepage

JULY 1994

Article 7 - Freedom from Torture, or Cruel, Inhuman 
or Degrading Treatment or  Punishment

Torture.  U.S. law prohibits torture at both the 
federal and state levels. As this report is being 
prepared, the U.S. is completing the process of 
ratifying the U.N. Convention Against Torture and 
Cruel and Inhuman or Degrading Treatment or 
Punishment.  Torture has always been prohibited by 
the Eighth Amendment to the U.S. Constitution.  As a 
consequence, torture is unlawful in every 
jurisdiction of the United States, and "[e]xcessive 
bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments 
inflicted."  U.S. Constitution, Amendment VIII. 

Cruel, Inhuman or Degrading Treatment or Punishment.  
The Eighth Amendment to the U.S. Constitution 
(applicable to actions of the federal government) 
and the Fourteenth Amendment (making the Eighth 
Amendment applicable to the states) prohibit cruel 
and unusual punishment.  Cruel and unusual 
punishments include uncivilized and inhuman 
punishments, punishments that fail to comport with 
human dignity, and punishments that include physical 
suffering.  Furman v. Georgia, 408 U.S. 238 (1972).   
Since the prohibition of cruel, inhuman or degrading 
treatment or punishment and the promotion of humane 
treatment consistent with human dignity are 
intertwined, the discussion in this section relates 
also to paragraph 1 of Article 10.  Because the 
scope of the constitutional protections differs from 
the provisions of Article 7, the U.S. conditioned 
its ratification upon a reservation discussed below.

Basic Rights of Prisoners.  The U.S. Supreme Court 
has applied the constitutional prohibition against 
cruel and unusual punishment not only to the 
punishments provided for by statute or imposed by a 
court after a criminal conviction, but also to 
prison conditions and treatment to which a prisoner 
is subjected during the prisoner's period of 
incarceration.  See Estelle v. Gamble, 429 U.S. 97 
(1976).  Prisoners may not be denied an 
"identifiable human need such as food, warmth, or 
exercise."  Rhodes v. Chapman, 452 U.S. 337 (1981).  
Accordingly, prisoners must be provided 
"nutritionally adequate food, prepared and served 
under conditions which do not present an immediate 
danger to the health and well being of the inmates 
who consume it."  Ramos v. Lane, 639 F.2d 559 (10th 
Cir. 1980), cert. denied, 450 U.S. 1041 (1981).  
Prisoners must also be provided medical care, 
although an inadvertent failure to provide medical 
care does not rise to the level of a constitutional 
violation.  Rather, it is prison officials' 
"deliberate indifference to a prisoner's serious 
illness or injury" that constitutes cruel and 
unusual punishment.  Estelle v. Gamble, 429 U.S. 97 
(1976).  Prison officials have a duty to protect 
prisoners from violence inflicted by fellow 
prisoners.  Hudson v. Palmer, 468 U.S. 517 (1984). 
Because prisons are by definition dangerous places, 
prison administrators are responsible to victims 
only if they had prior knowledge of imminent harm.  
Finally, prisoners must not be subject to excessive 
use of force.  Force may be applied "in a good faith 
effort to maintain or restore discipline," but may 
not be used "maliciously and sadistically to cause 
harm."  Whitley v. Abers, 475 U.S. 312, 320-21 
(1986).  It does not matter whether the force 
results in serious injury.  Hudson v. McMillan, 112 
S.Ct. 995 (1992).

The Department of Justice can criminally prosecute 
any prison official who willfully causes a convicted 
prisoner to be subjected to cruel and unusual 
punishment under 18 U.S.C.   241 and/or   242.  In 
addition, certain federal and state statutes call 
for affirmative protection of the interests of 
prisoners.  For example, 18 U.S.C.   4042 imposes a 
duty upon the Attorney General to provide suitable 
quarters and provide for the safekeeping, care, and 
subsistence of all persons charged with or convicted 
of offenses against the United States, and to 
provide for the protection, instruction, and 
discipline of such persons.

The Attorney General may also initiate civil actions 
under the Civil Rights of Institutionalized Persons 
Act when there is reason to believe that a person, 
acting on behalf of a state or locality, has 
subjected institutionalized persons (including 
persons in facilities for nursing or custodial care, 
for juvenile and pretrial detainees, and for the 
mentally or physically ill, disabled, or 
handicapped, as well as correctional facilities) to 
"egregious or flagrant conditions which deprive such 
persons of any rights, privileges or immunities 
secured or protected by the Constitution or laws of 
the United States causing such persons to suffer 
grievous harm."  42 U.S.C.   1997a.

Prisoners who have been subjected to cruel and 
unusual punishment may file a civil suit to recover 
damages from the individuals who inflicted such 
punishment.  Where the perpetrators are agents of 
the federal government, these suits are based on the 
legal precedent established by the case of Bivens v. 
Six Unknown Federal Narcotic Agents, 403 U.S. 388 
(1971), in which the Supreme Court held that 
officials of the federal government may be held 
personally liable for actions undertaken in their 
official capacity.  Prisoners also may sue the 
federal government under the Federal Tort Claims 
Act, 28 U.S.C.    2671, et seq.  Where the 
perpetrators are agents of state or local 
governments, the victim may sue under 42 U.S.C.   

Solitary Confinement and Special Security Measures.  
Convicted prisoners may be subjected to special 
security measures and segregation (i.e., physical 
separation from the general prison population) only 
in unusual circumstances.  Such measures may be 
employed for punitive reasons or as a means of 
maintaining the safety and security of inmates and 
staff in the institution.  No conditions of 
confinement, including segregation, may violate the 
proscription of the Eighth Amendment, nor may they 
violate the prisoners' rights to due process and 
access to the courts under the Fifth and Fourteenth 

All correctional systems in the U.S. have codes of 
conduct that govern inmate behavior, and all have 
systems for imposing sanctions when inmates violate 
this code.  These disciplinary systems are essential 
to ensuring the security and good order of 
correctional institutions.  Inmates are provided a 
copy of the code of conduct immediately upon their 
arrival at a  correctional institution, and 
additional copies are maintained in the inmate law 
libraries.  The prison disciplinary process is 
administered internally, but there are important 
constitutional requirements that provide guidance.  

Segregation is one of the sanctions that may be 
imposed upon an inmate who, it has been determined, 
has violated the code of conduct.  Before this 
sanction may be imposed, the inmate is entitled to 
due process protections emanating from the Fifth and 
Fourteenth Amendments of the Constitution and 
recognized by the Supreme Court in Wolff v. 
McDonnell, 418 U.S. 539 (1974).  Specifically, an 
inmate must be provided written notice of the 
claimed violation and a written statement of the 
evidence relied upon in the disciplinary action 
taken; inmates must be permitted at least 24 hours 
to prepare for his or her appearance before the 
disciplinary officer or committee; inmates must be 
permitted to call witnesses at the hearing or at the 
least introduce written statements from witnesses; 
and must be permitted to seek assistance from a 
fellow inmate or from staff if he or she is 
illiterate or does not understand the proceedings.  
In addition, an impartial decisionmaker must preside 
over the hearing.  If, after the preceding 
procedures have been followed, the disciplinary 
officer concludes that the inmate is deserving of 
punishment, segregation is one of many possible 
sanctions.  The prisoner is given a specific term to 
remain in segregation (generally no more than 60 
days), and this sentence may be appealed to higher 
level officials within the department of 
corrections.  As with every other aspect of his or 
her imprisonment, the inmate has the opportunity to 
file suit in court.

Inmates may also be separated from the general 
prisoner population as the result of a 
classification decision.  Prison administrators may 
determine that, based on a host of factors, an 
inmate's presence in general population would pose a 
substantial threat of harm to him/herself or others 
and the inmate therefore must be removed.  This 
decision must be documented.  Because this removal 
is an administrative rather than a punitive measure, 
it is usually not necessary to comply with the 
requirements of Wolff v. McDonnell delineated above.  
As a general matter, prison administrators may 
transfer prisoners to any correctional institution 
at any time for any reason.  See Olim v. Wakinekona, 
461 U.S. 238 (1983).  But, if the prisoner's 
conditions of confinement are dramatically altered 
as a result of the classification decision, he or 
she may be entitled to some due process protections.  
See Vitek v. Jones, 445 U.S. 480 (1980)(requiring 
due process procedures for prisoners being 
transferred from a prison to a mental hospital).  

Prisoners may also be segregated for medical 
reasons.  This frequently occurs when inmates have 
communicable diseases.  In such cases, the fact and 
duration of the segregation is determined by medical 

Segregation is not solitary confinement.  The 
segregation unit in a prison separates, or 
segregates, certain prisoners from those who are in 
general population.  Inmates in segregation are not 
permitted to eat in the dining hall; rather, they 
are served in their cells.  They are not permitted 
to report to their work assignments, nor are they 
permitted to attend school.  They are permitted to 
exercise (though they may not be permitted to do so 
out of doors) and they are permitted to read and to 
correspond.  Depending upon the reason for their 
segregation, they may be permitted to listen to the 
radio and watch television if available.  Some 
rights and privileges may not be abridged by virtue 
of an inmate's placement in segregation, whatever 
the reason for such placement.  First, they must be 
permitted to correspond with persons outside the 
prison in the same fashion as prisoners in general 
population.  Second, they must be allowed visits 
with friends or relatives, and to make telephone 
calls.  Inmates must also be permitted access to the 
law library, their legal papers, and their attorney.  
Finally, they must be given appropriate medical 
care, food, clothing, and other basic necessities.  

Inmates held in segregation have limited contact 
with other inmates and with staff, but under no 
circumstances will they be denied all human contact.  
For the duration of their stay in segregation, 
inmates are carefully monitored by medical and 
mental health personnel to ensure they do not suffer 
detrimental effects.

Visitation.  Prison administrators are afforded 
great deference in assessing what type of 
restrictions are necessary to maintain order and 
control in a correctional institution.  Prison 
administrators could, within the strictures of the 
Constitution, prohibit prisoners from visiting with 
friends or family members.  See Kentucky Department 
of Corrections v. Thompson, 490 U.S. 454 (1989); 
Meachum v. Fano, 427 U.S. 215 (1976).  As the 
Supreme Court observed in Price v. Johnson, 334 U.S. 
266 (1948), "lawful incarceration brings about the 
necessary withdrawal or limitation of many 
privileges and rights, a retraction justified by the 
considerations underlying our prison system."  
Neither the prisoners nor the members of the public 
have a constitutional right to visit persons in 
prison.  Nevertheless, prison administrators 
everywhere in the United States permit visitation, 
and most even encourage family members and friends 
to visit.  The Federal Bureau of Prisons encourages 
visiting by family, friends, and community groups to 
maintain the morale of the inmate and to develop 
closer relationships between the inmate and family 
members or others in the community.  28 C.F.R.   
540.40.  The number of visits prisoners are allowed 
each month, the duration of each visit, and the 
number of visitors allowed at any given time are all 
established by department of corrections' 
regulations which are made available to the inmates.  
In addition to visits with friends and family 
members, prisoners are permitted to meet with their 
attorneys, members of the clergy, and sometimes 
members of the media.  

Prisoners may be restricted from visiting for a 
limited period of time as a sanction for violating 
prison rules of conduct.  In many prison systems, 
however, including the Federal Bureau of Prisons, 
visits will be suspended only for violation of 
regulations specifically concerned with visitation 
guidelines or orderliness and security in the 
visiting room.   See 28 C.F.R.   540.50(c).

Restrictions are imposed on the visitors as well as 
on the prisoners; such restrictions vary depending 
upon the security level of the correctional 
institution and the classification status of the 
inmate.  For example, inmates in maximum security 
prisons may be permitted only noncontact visits 
where the visitor and the prisoner are separated by 
a pane of glass and must speak to one another using 
a telephone.  Prisoners in medium or minimum 
security institutions can often sit side-by-side in 
the visiting room and the prisoners can hold their 
children.  In some prisons visits are held outside, 
weather permitting.  Inmates in segregation may be 
required to wear restraints, such as handcuffs, 
during the visits.  All prisoners are required to 
submit to a strip search prior to and immediately 
after a visit.  This procedure prevents the 
admission of contraband into the prison.  Visitors 
are generally required to pass through a metal 
detector; sometimes they are required to submit to a 
pat search of their person and their belongings.  In 
rare circumstances visitors may be subjected to a 
strip search.  Of course, visitors may opt not to 
visit rather than undergo these procedures.

In most correctional systems in the country, 
visitors are prohibited from bringing items to 
prisoners, such as food, papers, clothes, etc.  
Procedures exist for processing incoming items, but 
in order to maintain security the items may not be 
passed directly to the prisoner.  There are other 
restrictions on what may transpire during visits.  
For example, sexual contact is usually not 
permitted, though in some prisons the inmates are 
permitted to kiss the visitor once upon first seeing 
them and once more prior to the end of the visit.  
On the other hand, many systems allow conjugal 

Death Row.  As discussed under Article 6, the U.S. 
Supreme Court has ruled that the death penalty is 
not in and of itself cruel and unusual punishment.  
For many years, the Court set aside sentences of 
death that were imposed under a procedure that 
allowed prejudice and discrimination to be factors 
in determining the sentence.  Furman v. Georgia, 408 
U.S. 238 (1972).  Since that decision, many states 
and the federal government have created new death 
penalty laws that have withstood Supreme Court 
scrutiny.  As of April 20, 1994, there were 
approximately 2,848 prisoners on death row, all of 
whom had been convicted of murder. In 1993, 38 
prisoners were executed, bringing to 240 the total 
of all prisoners executed since 1976, the year the 
Supreme Court reinstated the death penalty.  See 
Gregg v. Georgia, 428 U.S. 153 (1976).  

In the states that have prisoners under sentence of 
death, various protections are afforded to ensure 
that their treatment is neither cruel, unusual, or 
inhumane.  The living conditions and treatment of 
such prisoners are guided by department of 
corrections' regulations unique to each state, but 
there are some general principles that apply 
universally.  Most departments of corrections house 
death penalty prisoners in a separate wing of a 
maximum security prison to ensure that these 
prisoners do not mingle with prisoners in the 
general population.  Death row inmates spend a great 
majority of time in their cells.  In some states 
they are permitted to work and to attend programs 
and activities, and in all states they are given 
time for recreation.  Most death row inmates have 
access to educational programs though in many cases 
they are self-study programs.  All death row inmates 
are given access to library books, legal resources 
and other resources.  They are also permitted to 
make purchases from the commissary.  Inmates under 
sentence of death spend a great deal of time 
pursuing hobbies such as arts and crafts, drawing, 
and bible study.  They are permitted to visit with 
family members and friends as well as attorneys.  In 
some states the visits are noncontact, and in many 
states the visits take place in an area removed from 
the general population visits.  Finally, death row 
inmates are permitted to correspond with persons 
outside the institution and to make telephone calls.   

Currently, in nearly every state death row inmates 
live in single-person cells, though population 
pressures may cause this to change.  There is always 
concern regarding the mental health and 
psychological state of death row inmates.  
Accordingly, in many states these inmates are 
reviewed by a psychologist or psychiatrist on a 
regular basis, and in all states inmates have access 
to such professionals upon request.  Death row 
inmates have access to religious services and 
activities, though generally such activities take 
place in the individual's cell or in an area 
separated from the general population.  Staff 
selected to work with death row inmates are 
generally very experienced; a 1991 study by the 
American Corrections Association and the National 
Institute of Justice revealed that staff working 
these positions had, on average, seven years' 
experience.  Only a few states provide specialized 
training for staff who work with death- sentenced 
inmates, though most correctional administrators 
specially select staff who are particularly 
professional and mature. 

Death row inmates have access to the same types of 
recourse available to other inmates to redress 
grievances.  They can file a formal grievance 
through the internal administrative remedy process, 
they can file suit in court, and they can write to 
the news media and legislators.   

Pretrial Detention.  Persons detained pretrial or 
otherwise have not been convicted of a crime and 
therefore, under the Fifth and Fourteenth 
Amendments, they have a right to remain free from 
"punishment" of any type.  Id.  The mere fact of 
detention, however, does not in and of itself 
constitute "punishment," nor do the "[l]oss of 
freedom of choice and privacy [that] are inherent 
incidents of confinement."  Bell v. Wolfish, 441 
U.S. 520 (1979).  Pretrial detainees may be subject 
to restrictions and conditions accompanying such 
confinement that are necessary to maintain order and 
security at the institution, but they may not be 
subjected to any restrictions that are imposed for 
the purpose of punishment.   Pretrial and other 
detainees are thus treated differently than 
convicted inmates, and correctional workers are 
informed of these differences through training and 
institution policies.  In addition, although the 
Eighth Amendment does not apply directly to 
detainees, courts have determined that detainees 
enjoy equivalent protections with regard to 
conditions of detention. 

Persons detained by the federal government may be 
housed in local jails, federal detention centers, or 
special units within federal correctional 
institutions.  The staff at a local jail may be 
state or local police officers, or they may be 
correctional officers.  At federal facilities the 
staff are always federal correctional officers.  The 
latter group are trained correctional officers who 
are instructed regarding appropriate treatment.  
Federal pre-trial detainees are, to the extent 
practicable, housed separately from convicted 
persons. 18 U.S. C.   3142 (i).  Standards 
promulgated by the American Correctional Association 
require that facilities provide for "the separate 
management" of detainees (witnesses, civil inmates, 
etc.) from the general offender population.   

Psychiatric Hospitals.  As discussed under Article 
9, individuals with mental illness may be committed 
to psychiatric hospitals through either involuntary 
or voluntary commitment procedures for the purpose 
of receiving mental health services.  Patients are 
afforded Fourteenth Amendment substantive due 
process protections designed to ensure that 
conditions of confinement do not violate their 
constitutional rights.  In Youngberg v. Romeo, 457 
U.S. 307 (1982), the Supreme Court held that all 
institutionalized persons, including mental 
patients, are entitled to adequate food, clothing, 
shelter, medical care, reasonable safety, and 
freedom from undue bodily restraint.  

Complaints tend to focus on inadequate conditions of 
confinement, i.e., lack of adequate staff and staff 
supervision of patients, inadequate medical and 
psychiatric care, overuse and misuse of medication, 
lack of adequate services for geriatric patients, 
and unsanitary conditions.  In addition to private 
remedies which are available to mental patients, 
federal statutes require each state to establish a 
"protection and advocacy" system to monitor state 
psychiatric hospitals and to make appropriate 
arrangements for individual patients with various 
problems and difficulties. See 42 U.S.C.    10801 et 
seq. (Protection and Advocacy Systems for 
individuals with Mental Illness).  Moreover, 
pursuant to the Civil Rights of Institutionalized 
Persons Act, 42 U.S.C.    1997, et seq., the 
Attorney General has authority to investigate, and 
file civil lawsuits as necessary, based on the 
belief that conditions in a state operated 
psychiatric hospital are subjecting patients to a 
pattern or practice of deprivations of their 
constitutional rights.  Since the enactment of the 
statute in 1980, some 62 facilities holding mentally 
disabled persons have been investigated and relief 
sought, as appropriate.    

Corporal Punishment in Public Schools.  While 
corporal punishment is rare in the U.S. educational 
system, the U.S. Supreme Court decided, in Ingraham 
v. Wright, 430 U.S. 651 (1977), that teachers may 
impose reasonable but not excessive force to 
discipline a child.  Therefore, it is not cruel and 
unusual punishment for schools to use corporal 
punishment.  However, students may sue for assault 
and battery if the punishment is excessive.  By 
1993, twenty-five states in the United States had 
banned corporal punishment.  Additionally, hundreds 
of cities and school boards in those states that do 
allow corporal punishment have banned it.  The 
federal government's role in this area is limited to 
protection from discrimination on the basis of race, 
sex, national origin, disability, or age in the 
imposition of corporal punishment.    Military 
Justice System.  Article 55 of the Uniform Code of 
Military Justice specifically prohibits punishment 
by flogging, or by branding, marking, or tattooing 
on the body, or any other cruel or unusual 
punishment.  The Article also prohibits the use of 
irons, single or double, except for the purpose of 
safe custody.  If a commanding officer were to 
subject a service member to such punishment, the 
commanding officer (as well as the individuals who 
actually carried out the punishment) would be 
subject to court-martial for maltreatment (Article 
92) and assault (Article 128), at the very least.  A 
service member might also pursue a civil tort 
action, for money damages, against the perpetrator.  
A commanding officer who orders the illegal 
punishment would be acting outside the scope of his 
position and would be individually liable for the 
intentional infliction of bodily and emotional harm.

U.S. Reservation.  The extent of the constitutional 
provisions discussed above is arguably narrower in 
some respects than the scope of Article 7.  For 
example, the Human Rights Committee adopted the view 
that prolonged judicial proceedings in cases 
involving capital punishment might constitute cruel, 
inhuman or degrading treatment or punishment in 
contravention of this standard.  The Committee has 
also indicated that the prohibition may extend to 
such other practices as corporal punishment and 
solitary confinement.

As such proceedings and practices have repeatedly 
withstood judicial review of their constitutionality 
in the United States, it was determined to be 
appropriate for the United States to condition its 
acceptance of the U.N. Convention against Torture 
and Other Cruel, Inhuman or Degrading Treatment or 
Punishment on a formal reservation to the effect 
that the United States considers itself bound to the 
extent that "cruel, inhuman treatment or punishment" 
means the cruel and unusual treatment or punishment 
prohibited by the Fifth, Eighth and/or Fourteenth 
Amendments to the Constitution of the United States.  
For the same reasons, and to ensure uniformity of 
interpretation as to the obligations of the United 
States under the Covenant and the Torture Convention 
on this point, the United States took the following 
reservation to the Covenant:

     The United States considers itself bound by 
Article 7 to the extent that "cruel, inhuman or 
degrading treatment or punishment" means the cruel 
and unusual treatment or punishment prohibited by 
the Fifth, Eighth and/or Fourteenth Amendments to 
the Constitution of the United States.

Medical or Scientific Experimentation.  
Nonconsensual experimentation is illegal in the U.S.  
Specifically it would violate the Fourth Amendment 
proscription against unreasonable searches and 
seizures (including seizing a person's body), the 
Fifth Amendment's proscription against depriving one 
of life, liberty or property without due process, 
and the Eighth Amendment's prohibition against the 
infliction of cruel and unusual punishment.

Drugs.  Comprehensive control of unapproved drugs is 
vested by statute in the federal Food and Drug 
Administration (FDA).  The general use of such drugs 
is prohibited, see 21 U.S.C.   355(a), but the FDA 
permits their use in experimental research under 
certain conditions.  21 U.S.C.    355(i), 357(d); 21 
C.F.R.   Part 50.  The involvement of human beings 
in such research is prohibited unless the subject or 
the subject's legally-authorized representative has 
provided informed consent, with the limited 
exceptions described below.  The FDA regulations 
state in detail the elements of informed consent.  
21 C.F.R.    50.41-50.48.

An exception is made where the human subject is 
confronted by a life- threatening situation 
requiring use of the test article, legally effective 
consent cannot be obtained from the subject, time 
precludes consent from the subject's legal 
representative, and there is no comparable 
alternative therapy available.  The Commissioner of 
the FDA may also determine that obtaining consent is 
not necessary if the appropriate Department of 
Defense official certifies that informed consent is 
not feasible in a specific military operation 
involving combat or the immediate threat of combat.  
This regulatory exception has been challenged in 
litigation and upheld as consistent with the 
governing statutes and the U.S. Constitution.  Doe 
v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991).

Military Agents.  The United States has also 
undertaken substantial efforts to diagnose and 
redress injuries that may have been caused by past 
exposure to potentially dangerous military agents.  
Thus, it continues to fund epidemiological studies 
in an attempt to resolve lingering scientific and 
medical uncertainty surrounding the long-term health 
effects of exposure to herbicides containing dioxin 
and to ionizing radiation.  It has also provided 
military veterans with an expeditious means of 
obtaining compensation for claims based on exposure 
to such herbicides during service in the Republic of 
Vietnam, or exposure to ionizing radiation during 
atmospheric nuclear tests or the American occupation 
of Hiroshima and Nagasaki, and has established 
guidelines for evaluating and applying the latest 
scientific evidence.  The Veterans Dioxin and 
Radiation Exposure Compensation Standards Act, Pub. 
L. No. 98-542, 98 Stat. 2727 (1984).  Civilian 
residents of the relevant areas put at risk by 
nuclear testing or employed in uranium mining can 
also recover sizeable compensation if they have 
developed any of a number of specified diseases.  
Radiation Exposure Compensation Act, Pub. L. No. 
101-426, 104 Stat. 920 (1990).

Radiation Experiments.  In December 1993, it became 
widely known that between 1944 and 1974 the United 
States Government conducted and sponsored a number 
of experiments involving exposure of humans to 
radiation.  While certain experiments resulted in 
valuable medical advances including radiation 
treatment for cancer and the use of isotopes to 
diagnose illnesses, a number of the experiments may 
not have been conducted according to modern day 
ethical guidelines.  Moreover, the majority of the 
records of the experiments were kept secret for 
years.  The United States Government has taken a 
number of steps to investigate the propriety of the 
experiments.  For instance, the Department of Energy 
established a centralized information center in 
Washington, D.C., that holds 270,000 records on 
nuclear testing and 7000 records on all types of 
human experiments, and identified approximately 2500 
records of human radiation experiments and placed 
them in public reading rooms around the country.  By 
executive order in January 1994, the President 
established the Advisory Committee on Human 
Radiation Experiments, which is charged with 
investigating the propriety and ethics of all human 
radiation experiments conducted by the government, 
and determining whether researchers obtained 
informed consent from their subjects.  Currently, 
the U.S. Congress and the Executive Branch are 
considering to what extent compensation may be 
appropriate in various cases. 

Prisoners.  Experimentation on prisoners is 
restricted by the Fourth, Fifth, and Eighth 
Amendments to the United States Constitution, by 
statutes, and by agency rules and regulations 
promulgated in response to such provisions.  As a 
general matter, in the United States, "[e]very human 
being of adult years or sound mind has a right to 
determine what shall be done with his own body . . . 
."  Schloendorff v. Society of New York Hospitals, 
211 N.Y. 125, 105 N.E. 92, 93 (1914).  Accordingly, 
prisoners are almost always free to consent to any 
regular medical or surgical procedure for treatment 
of their medical conditions.  Consent must be 
"informed":  the inmate must be informed of the 
risks of the treatment; must be made aware of 
alternatives to the treatment; and must be mentally 
competent to make the decision.  But due to possible 
"coercive factors, some blatant and some subtle, in 
the prison milieu," (James J. Gobert and Neil P. 
Cohen, Rights of Prisoners, New York: McGraw Hill, 
Inc., 1981, pp. 350-51), prison regulations 
generally do not permit inmates to participate in 
medical and scientific research.   

The Federal Bureau of Prisons prohibits medical 
experimentation or pharmaceutical testing of any 
type on all inmates in the custody of the Attorney 
General who are assigned to the Bureau of Prisons.  
28 C.F.R.   512.11(c).  

Moreover, the federal government strictly regulates 
itself when conducting, funding, or regulating 
research in prison settings.  An Institutional 
Review Board, which approves and oversees all 
research done in connection with the federal 
government, must have at least one prisoner or 
prisoner representative if prisoners are to be used 
as subjects in the study.  Research involving 
prisoners must present no more than a minimal risk 
to the subject, and those risks must be similar to 
risks accepted by non-prisoner volunteers. See 28 
C.F.R. Part 46.  Furthermore, guidelines established 
by the Department of Health and Human Services 
provide that the research proposed must fall into 
one of four categories:

(1) Study of the possible causes, effects, and 
processes of incarceration, and of criminal 
behavior, provided that the study presents no more 
than a minimal risk and no more than inconvenience 
to the subject; 

(2) Study of prisons as institutional structures or 
of prisoners as incarcerated persons, provided that 
the study presents no more than minimal risk and no 
more than inconvenience to the subject;

(3) Research on conditions particularly affecting 
prisoners as a class;      

(4) Research on practices, both innovative and 
accepted, which have the intent and reasonable 
probability of improving the health and well being 
of the subject. 

45 C.F.R.   46.306(a)(2).

Similar standards have been developed within the 
broader correctional community that strictly limit 
the types of research conducted in prisons, even 
with an inmate's consent.  For example, in its 
mandatory requirements for institutional 
accreditation, the American Correctional Association 
(ACA) stipulates that:

     Written policy and practice prohibit the use of 
inmates for medical, pharmaceutical, or cosmetic 
experiments.  This policy does not preclude 
individual treatment of an inmate based on his or 
her need for a specific medical procedure that is 
not generally available (emphasis added).  

Mandatory Standard 3-4373, Section E, "Health Care," 
in Standards for Adult Correctional Institutions, 
3rd. ed., Laurel, Maryland:  American Correctional 
Association, January, 1990, p. 126.

The commentary accompanying this mandatory 
regulation reads:

     Experimental programs include aversive 
conditioning, psychosurgery, and the application of 
cosmetic substances being tested prior to sale to 
the general public.  An individual's treatment with 
a new medical procedure by his or her physician 
should be undertaken only after the inmate has 
received full explanation of the positive and 
negative features of the treatment.  


Nonmedical, academic research on inmates is normally 
allowable in federal and state prisons with the 
inmate s express consent.  This type of research 
normally consists of inmate interviews and surveys.  
Inmates are not required to participate in any 
research activities other than those conducted by 
correctional officials for purposes of inmate 
classification, designation, or ascertaining inmate 
program needs (e.g., employment preparation, 
educational development, and substance abuse and 
family counseling).
To the top of this page