This decision marks the first time a U.K. court has used the “forum bar,” a 2013 extradition reform that allows British courts to halt extraditions in situations where defendants could be prosecuted instead in the United Kingdom. (Specifically, the wanted person must have strong ties to the U.K., the alleged conduct must have occurred mainly on British soil, and a reasonable argument can be made that the interests of justice would be better served by prosecution there.) The U.K. Parliament adopted the forum bar after an outcry over a string of cases in which the United States asserted prosecutorial jurisdiction over conduct that occurred entirely in the U.K. Although several political factors were at play, the extradition reform movement was largely fueled by public concern that defendants’ basic rights will not be respected in U.S. custody.
The findings of the High Court in Love’s case paint an unembellished but unmistakably grim portrait of the reality of the American carceral state, in which harsh sentences, poor access to medical care and excessive use of solitary confinement mean that U.S. authorities cannot reliably ensure the survival of vulnerable prisoners. In finding that extradition to the United States would be “oppressive” to Love, the High Court found that conditions in American jails were “not adequate to prevent suicide.” The court found that Love, who has Asperger’s syndrome and suffers from severe depression and other health problems, was likely to be held in solitary confinement as a suicide prevention measure and that he wouldn’t have adequate access to mental health treatment. The court also found that the heightened risk that Love would commit suicide was due in part to the excessive length of sentence Love anticipated in the United States, substantially longer than what he would be subject to in a prosecution for similar crimes in the U.K. In short, the court found that the U.S. prison system is a mortal threat.
All of the issues flagged by the High Court — poor treatment for the majority of prisoners who suffer from mental illness, sentences far longer than those in other countries, and excessive use of solitary confinement — are sadly well-documented realities for many prisoners in the United States. The High Court’s conclusion that U.S. authorities can’t reliably prevent suicide for prisoners such as Love is borne out by the fact that suicide is the third-leading cause of death in U.S. prisons and jails — and has risen sharply in recent years.
But these problems don’t stop at U.S. borders, not in an age where we depend more closely than ever on trust and cooperation in tackling cross-border crime. When the United States can’t assure its closest allies that their citizens will be fairly treated in criminal proceedings, our domestic human rights crises do more than ruin lives — they undermine international cooperation and public safety. In this case, the United States can rest assured that British authorities will capably prosecute Love if evidence and the public interest indicate they should do so. But this will not always be the case, and if the United States intends to continue its track record of aggressive prosecution of overseas activity, it will need to assure its partners that their cooperation will not result in human rights abuses.
Challenges to U.S. extraditions on human rights grounds are not necessarily new. Since 1989, when the European Court of Human Rights decided that it could not permit an extradition that could end in execution, the U.S. government must explicitly promise any European country considering an extradition request that prosecutors will not request the death penalty for the accused. Love’s case, which is more ordinary than a death penalty case, is of a different order. Defendants such as Love, who are vulnerable to illness and violence, are prosecuted and imprisoned every single day in the United States. The fact that a British court has found that the United States can’t be entrusted to keep such people alive in custody is at once shocking and undeniable.
Unfortunately, there is no indication that respect for the rights of the accused is likely to improve under Sessions’ Justice Department, despite sustained state- and national-level movements for reform. In fact, Sessions has signaled that he is doubling down on punitive prosecutorial practices that will exacerbate the human rights crises in U.S. jails and prisons. Unless it changes course, the United States will likely have to accept further blows to its ability to cooperate with its allies in its efforts to tackle international crime.