Legal basis for practice principle 1

There is scholarly consensus that personal integrity is an aspect of human dignity and that a person’s dignity can be diminished by acts that degrade, debase, demean, and humiliate.[]See Leslie Meltzer Henry, “The Jurisprudence of Dignity,” University of Pennsylvania Law Review 160, no. 1 (2011), 169-233, 215-16; and McCrudden, “Human Dignity,” 2008, 686.  This aspect of human dignity also underlies international and domestic jurisprudence surrounding the rights of those incarcerated, examples of which are below. 

  • In the United States, the Supreme Court has relied on this facet of human dignity to prohibit extreme maltreatment of an incarcerated person. In Hope v. Pelzer, the case in which the incarcerated person was tied to a hitching post, the Court described this treatment as one which created “a substantial risk of physical harm, unnecessary pain, unnecessary exposure to the sun, prolonged thirst and taunting, and a deprivation of bathroom breaks . . . [causing] particular discomfort and humiliation . . . [which was] antithetical to human dignity . . . under circumstances that were both degrading and dangerous.”[]Hope v. Pelzer, 536 U.S. 730, 738 & 745 (2002). Also see Demery v. Arpaio, 378 F.3d 1020, 1030-33 (2004), where Maricopa County Sheriff Joe Arpaio installed webcams and filmed pretrial defendants as they were booked and detained in jail. Although the Ninth Circuit Court of Appeals did not explicitly invoke concepts of human dignity, it did find that deliberate degradation constituted “punishment” for purposes of granting injunctive relief. The court explained that the filming and broadcasting of such activities “constitutes a level of humiliation that almost anyone would regard as profoundly undesirable and strive to avoid.” Demery, 378 F.3d at 1030. Additionally, implicitly acknowledging the humanity of incarcerated people, the Ninth Circuit went on to quote the U.S. Supreme Court and noted that “‘[i]nmates are not like animals in a zoo to be filmed and photographed at will by the public or by media reporters, however ‘educational’ the process may be for others.’” Ibid. (quoting Houchins v. KQED, Inc., 438 U.S. 1, 5 & note 2 (1978) (plurality opinion)).
  • In 2003, the Montana Supreme Court in Walker v. State interpreted the dignity clause in its state constitution as a prohibition against “[t]reatment which degrades or demeans persons, . . . which deliberately reduces the value of persons, and which fails to acknowledge their worth as persons.”[]Walker v. State, 68 P.3d 872, 884 (2003) (quoting Matthew O. Clifford and Thomas P. Huff, “Some Thoughts on the Meaning and Scope of the Montana Constitution's ‘Dignity’ Clause with Possible Applications,” Montana Law Review 61, no. 2 (2000), 301-36, 307). The court specifically held that the state’s constitution “forbids correctional practices which permit prisons in the name of behavior modification to disregard the innate dignity of human beings, especially in the context where those persons suffer from serious mental illness,” and stated unequivocally that “the plain meaning of the dignity clause commands that the intrinsic worth and the basic humanity of persons may not be violated.”[]Walker v. State, 68 P.3d at 884.  
  • A similar aspect of human dignity is acknowledged and protected by the U.S. Supreme Court in its cases analyzing the Fourth Amendment’s prohibition against unreasonable search and seizure. Although primarily used to demarcate the most extreme circumstances—and usually only to protect against physical humiliation (rather than psychological degradation)—the Court “readily characterize[s]” some police practices as offensive to human dignity.[]Rex D. Glensy, “The Right to Dignity,” Columbia Human Rights Law Review 43, no. 1 (2011), 65-142, 89 (citing Rochin v. California, 342 U.S. 165 (1952) (a search that consisted of opening the petitioner’s mouth and extracting contents from his stomach); and Winston v. Lee, 470 U.S. 753 (1984) (forcing an individual to undergo surgery to remove a bullet)). Justice Scalia used this concept of dignity to justify enforcing the “knock and announce” rule and tended to determine that searches were unconstitutional when they, as one scholar described when aggregating Scalia’s decisions,  “involved exposing an individual to others when he was indecent, improper, undressed, ungraceful, or uncollected—in short, undignified.”[]Henry, “Jurisprudence of Dignity,” 2011, 220. See Hudson v. Michigan, 547 U.S. 586 (2006); and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (dissenting opinion). The knock-and-announce rule is based in the common law and instructs that law enforcement officers executing a search warrant must first knock, identify themselves and their authority, and wait a reasonable amount of time before they enter. The Supreme Court described the rule’s history and philosophy in Miller v. United States, 357 U.S. 301 (1958).
  • On an international level, Article 3 of the European Convention on Human Rights and Rule 1 of the Nelson Mandela Rules, both of which prohibit inhumane or degrading treatment or punishment, are rooted in a similar conception of human dignity. The European Court of Human Rights (ECHR) very often applies human dignity reasoning in cases examining prison conditions and forms of punishment.[]Antoine Buyse, Dignified Law: The Role of Human Dignity in European Convention Case-Law, keynote address delivered on October 11, 2016, at Utrecht University, Also see Dirk Van Zyl Smit and Sonja Snacken, Principles of European Prison Law and Policy (New York: Oxford University Press, 2009), 127-30. Van Zyl Smit and Snacken note that the European Court of Human Rights approaches the question of appropriate conditions of confinement primarily “in the context of deciding whether there has been an infringement of the prohibition of inhuman or degrading treatment or punishment contained in Article 3 of the European Convention of Human Rights.” They demonstrate that the Court has consistently stressed that “under this provision the State must ensure that a person is detained in conditions which are compatible with respect for [his or her] human dignity” and that liability of the state in this regard is no longer determined by the intention of the state. Ibid., 128. According to the ECHR, whether an action amounts to “degrading treatment” depends on “whether its object is to humiliate and debase the person concerned and whether . . . it adversely affected his or her personality in a manner incompatible with Article 3.”[]Peers v. Greece, European Court of Human Rights Reports of Judgments and Decisions 2001-III, 275-336, 296, § 68 (citing Rainen v. Finland, 1997-VIII, pp. 2821-22, § 55),  For example, in Peers v. Greece, the applicant was confined to a cell with no ventilation and no window for a considerable part of each day even though the temperature was extremely hot at times, and the applicant and his cellmate had to use the toilet in each other’s presence. The ECHR held that such conditions “diminished the applicant’s human dignity,” having “aroused in him feelings of anguish and inferiority capable of humiliating and debasing him, and possibly breaking his physical or moral resistance.”[]Peers v. Greece, § 75.