Restraining U.s. Violations of International Law: an Attempt to Curtail Stun Belt Use and Manufacture in the United States Under the United Nations Convention Against Torture

• Publication year: 2010

Restraining U.S. Violations of International Law:
An Attempt to Curtail Stun Belt Use and Manufacture in the United States Under the United Nations Convention Against Torture

Plamen I. Russev

Introduction

The United States ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) [1] in November 1994. [2] CAT embodies the broad prohibition of all instances of torture as defined by international law.[3]

At the same time, the United States remains the world leader in developing, marketing, selling, and exporting non-lethal weapons that serve as torture devices in the hands of law enforcement officials at home and abroad. [4] Increasingly, these torture devices rely on the latest technological innovations to inflict severe pain with minimal or no physical signs of abuse. [5] For example, U.S. manufacturers produce and export high-voltage electro-shock stun guns and stun belts in great quantities but without public scrutiny, impartial testing, or any regulation of design and use.[6]

This Note considers whether the manufacture and use of stun belts by law enforcement officials violate CAT.[7] Part I describes the design, medical consequences, and proliferation of stun belt use both in the United States and abroad and highlights the device's significant potential for abuse. Part II presents the relevant provisions of CAT and the related U.S. reservations, declarations, and understandings regarding CAT. Part III discusses the U.S. judicial interpretation of the international law on torture, including CAT. Part IV examines and evaluates the potential for enforcing certain controlling principles of international law in the United States with regard to actions that violate the object and purpose of a treaty. Part V considers the U.S. conduct that violates CAT. Finally, Part VI lays out and evaluates the arguments that stun-belt torture victims could advance under CAT in U.S. courts. The Note concludes that although the official use and manufacture of stun belts violate CAT, the United States' limited ratification of CAT effectively undermines stun-belt torture victims' attempts to seek redress in U.S. courts for U.S. violations of the recognized international human right to be free from torture.

I. Design, Effects, and Use of Stun Belts

A. Stun Belt Design and Function

The stun belt is an electronic device used to control prisoners, detainees, and even defendants in court. [8] Secured around the waist, the belt shocks the wearer with 50,000 volts of high-pulse electric current. [9] A police or prison officer can activate the belt by remote control from as far away as 300 feet.[10] The electric shock lasts for eight full seconds and cannot be stopped once the belt is activated.[11] The electric current enters the wearer's body near the kidneys, travels along blood channels and nerve pathways, and causes increasingly excruciating pain throughout the eight seconds. [12] The shock usually knocks the victim down in the first few seconds, causes him to shake uncontrollably during the entire period of discharge, and often leaves him incapacitated for up to fifteen minutes.[13]

Stun belt manufacturers promote the device as an alternative to using leg-irons, leg-cuffs, or shackles to prevent the risk of escape or threat by potentially violent or unruly prisoners and detainees. [14] One of the largest U.S. manufacturers has even asserted that a stun belt is a non-obvious mechanism to restrain a dangerous prisoner or defendant during trial without compromising the defendant's right to be presumed innocent. [15] Company representatives also claim that their devices are medically safe and non-lethal when used properly.[16]

B. The Effects of Stun Belt Use

Currently, there are no independent formal studies of the physical and psychological effects of stun belts on human beings.[17] The only test results appear in REACT belt advertising brochures as an affidavit by a medical doctor, stating that he tested the belt on anesthetized pigs.[18] The difference between conscious human beings fearing electrocution and sedated pigs is only one of the reasons that undermine the adequacy of this study.[19] However, the official waiver that all prisoners must sign prior to wearing the belt offers a glimpse at some of the belt's most obvious effects – immediate immobilization, which may result in defecation and urination, and welts on the skin, which may not heal for up to six months.[20]

Furthermore, general medical studies on the effects of electrocution and reports of electric torture victims reveal that immediate effects may include burning, confusion, amnesia, headaches, nausea, convulsions, fainting, and cessation of heartbeat and breathing. [21] Secondary effects can last for hours or days after the initial shock and include paralysis, muscular pain, swelling, headaches, vision impairment, and heart irregularities.[22] Finally, long-term consequences can appear weeks to years after the shock and include speech and writing difficulties, paralysis, loss of taste, and long-term damage to teeth and hair.[23] The high-voltage, short-duration electrical shocks inflicted by stun belts may result in grave or even fatal physical injuries, such as cardiac dirhythmia, cardiac arrest, and possibly death in people taking psychotropic medications, suffering from epilepsy, or having congenital heart defects.[24]

Although electroshock torture's visible traces, such as skin reddening and scarring, may disappear within weeks, the psychological effects may reverberate for years.[25] Manufacturers openly emphasize that the belt allows law enforcement officials to establish "total psychological supremacy" over prisoners or detainees wearing a stun belt. [26] One company's president unambiguously promotes the belt's effectiveness as a function of the constant fear of severe pain it can inflict at any time upon a person held in a situation of powerlessness: "Electricity speaks every language known to man. No translation necessary. Everybody is afraid of electricity, and rightfully so."[27] A stun-belt distributor and trainer also confirms the tremendous psychological impact of wearing the belt.[28] The manufacturer even argues that the belt serves as a deterrent rather than as punishment because it can control the wearer's behavior merely by creating a great amount of anxiety about the possibility of experiencing a 50,000-volt blow in the kidneys. [29] Such immense mental and emotional strain often results in serious psychological problems such as post-traumatic stress disorder and severe depression.[30]

C. Distribution and Use of Stun Belts

The first reports of stun belt use in the United States criminal justice system date back to 1993.[31] Although no official statistics on the use of stun belts in the United States are available, Amnesty International reports that the U.S. Marshalls Service, the U.S. Bureau of Prisons, and more than one hundred jurisdictions have purchased stun belts and estimates that belts currently in use exceed 1,000 throughout the country. [32] One of the major manufacturers claimed in 1999 that prisoners had worn its belts on over 50,000 occasions during the prior five years.[33]

While the United States is hailed as the birthplace of electro-shock technology in the 1970s, the manufacture and use of stun devices, including stun belts, has proliferated throughout the world, especially in the 1990s.[34] Whereas only two companies, one American and one British, produced stun devices in the 1970s, more than 150 did in 2001, 97 of which were U.S. companies.[35] Stun belt use, in particular, has spread around the world and reaches as far as Singapore and South Africa, where electro-shock torture is common.[36]

D. The Stun Belt's Significant Potential for Abuse

Although most police or prison officials would not activate stun belts without a reason, many reports describe arbitrary and unwarranted official use. [37] The use of stun belts encourages an over-reliance on them by law enforcement officials.[38] A U.S. law enforcement official stated that, in his experience, the mere availability of stun guns and belts tends to increase their usage.[39] In a notorious California case, even a municipal judge ordered the activation of a stun belt to silence a pro se defendant.[40] The belt's reliance on creating psychological supremacy over prisoners and detainees generates the perfect conditions for abuse in an environment already notorious for incidents of arbitrary beatings, punishment, and torture.[41]

A number of courts have recognized the potential for abuse of electro-shock devices such as the stun belt.[42] In addition, the states of Michigan, Hawaii, Rhode Island, and Massachusetts, as well as the cities of Washington, D.C., Baltimore, Maryland, and Annapolis, Maryland, have all banned the use of stun weapons by civilians and police.[43] A number of European countries, including Belgium, Denmark, Finland, Luxembourg, the Netherlands, Norway, Sweden, Switzerland, and the United Kingdom, have also prohibited all electro-shock weapons and devices, other than cattle prods."[44]

II. The Convention Against Torture

A. Definition of Torture and State Obligations Under CAT[45]

On December 10, 1984, the United Nations General Assembly adopted by consensus the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[46] In the preamble, the drafters of CAT pointed out that the Convention further develops the principles of human rights protection established in the United Nations Charter,[47] the Universal Declaration of Human Rights,[48] and the International Covenant on Civil and Political Rights.[49]

Article One broadly defines torture as the intentional infliction of severe physical or mental pain or suffering by anyone acting in an official capacity for any impermissible purpose. [50] The definition has three elements: 1) torture is an act...