Student Note on the CRPD and Supermax Confinement

Just out: Kathryn D. DeMarco, Note, Disabled by Solitude: The Convention on the Rights of Persons with Disabilities and its Impact on the Use of Supermax Solitary Confinement, 66 U. Miami L. Rev. 523 (2012).  From the introduction:

This article argues that the use of supermax facilities is inconsistent with the CRPD. Confining an individual to a supermax facility in essence creates a mental disability. While the major concern of the CRPD is to protect “the rights and development of people with disabilities,” it cannot be consistent with the CRPD for the government to make someone disabled. Accordingly, the use of supermax facilities violates the CRPD.  

Because the disability inflicted by supermax facilities is inconsistent with the CRPD, what effect will ratification of the convention have? This article addresses a major policy question heretofore not analyzed in the already significant body of commentary on the CRPD. Specifically, with what reservations, understandings, and declarations might the Senate approve the treaty? The United States has an established pattern of ratification of human rights treaties, the ratification of which is typically accompanied by a standard package of reservations, understandings, and declarations. This package is designed to modify the substantive commitments the United States takes on, bring them into conformity with existing domestic U.S. law, and ensure that U.S. courts lack jurisdiction to enforce the treaty. 

Were the Senate to take up the question of ratifying the CRPD, it would likely give serious consideration to exempting supermax facilities from its scope. This article will analyze how it might seek to do so, arguing that it may be extraordinarily difficult to formulate a reservation or understanding that is both politically acceptable and successful in exempting supermax facilities from international scrutiny under the CRPD.