Constitutional Prohibitions on Torture Aren't Effective, UVA Law Professor's Research Shows

Mila Versteeg

Professor Mila Versteeg has done extensive comparative research into the world's constitutions, including in her latest co-authored paper, "The Inefficacy of Constitutional Torture Prohibitions."

February 6, 2015

On the heels of a recently released government report detailing U.S. torture practices, a new paper co-authored by University of Virginia School of Law professor Mila Versteeg shows that just because a nation has constitutional prohibitions against torture, doesn't mean it obeys them.

In "The Inefficacy of Constitutional Torture Prohibitions," written with Adam S. Chilton of the University of Chicago School of Law, Versteeg finds that, though torture prohibitions have increasingly made their way into the constitutions of nations, the prohibitions often go unheeded, failing to reduce torture in statistically significant and meaningful ways.

Why did you choose to focus on the effectiveness of torture prohibitions in constitutions?

Constitutional torture prohibitions have proliferated in past decades. According to our data, 84 percent of the world's constitutions currently prohibit torture. England's Bill of Rights Act of 1689 was the first human rights document to state that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted." The American founders likewise prohibited cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution. In recent decades, many other countries have followed suit.

But while constitutional torture prohibitions have proliferated, reports of torture remain. In December, the partial release of the U.S. Senate Select Committee on Intelligence's "Committee Study of the Central Intelligence Agency's Detention and Interrogation Program" shocked the world. The report, which closely examined the CIA's detention program, revealed that the CIA's use of torture had been more brutal and extensive than previously believed, and that lawmakers had been misled about the nature of the program. The U.S. is not the only democracy that has been reported to use torture, however. Of the 107 democracies in existence in 2011, 40 frequently tortured their citizens, and another 41 engaged in occasional torture. Only 26 democracies refrained from torture altogether.

Such reports of torture cast doubt on the effectiveness of constitutional torture prohibitions.

What has your research shown about the impact of constitutional torture prohibitions?
We use a range of statistical techniques and data sources, but do not find any evidence that countries that constitutionally prohibit torture are less likely to torture in practice. Constitutional torture prohibitions, we find, have failed to even marginally reduce torture, let alone halt it entirely.

How can you prove that constitutional prohibitions don't reduce the practice of torture?

Although the question whether of constitutional torture prohibitions have reduced incidents of torture is an important one, two obstacles have made it all but impossible to test empirically. First, all the existing data sources on incidents of torture have been shown to be systematically biased because reporting standards have varied over time and between countries. Second, there is inherently selection bias because the decision to enshrine a torture prohibition might be related to a government's intention to torture.

Although both problems are substantial, we attempt to overcome both by using brand new data on state repression that corrects for reporting biases and by relying on a recently developed identification strategy that mitigates selection bias by incorporating previously unobserved information on countries' general preferences for constitutional rights into the research design. In terms of data, we rely on a new dataset released last year by Christopher Farris that corrects for biases in other sources of data measuring human rights practices. In addition to this new data, we also rely on five other previously used indicators that measure torture. These data sources tend to rely on torture reporting in the annual human rights country reports of the U.S. State Department and Amnesty International.

We deal with selection bias by employing a new identification strategy that builds information on pre-existing constitutional rights preferences into the research design. Specifically, we use data on rights included in every constitution between 1946 and 2012 to calculate countries' yearly constitutional "ideal points," and then match both on the probability of a country's constitutionally prohibiting torture and on a set of standard observables.

Using this data and method, we find no evidence that constitutional torture prohibitions reduce the prevalence of torture.

Why do you think constitutional torture prohibitions have failed?

Our research design does not allow us to answer this question, but we speculate why constitutional torture prohibitions might be less effective than other constitutional rights. First, it is often possible for governments to torture covertly, which allows them to circumvent the constitutional mechanisms that are supposed to hold governments accountable. Moreover, there is a recent trend towards using clean or "stealth" torture techniques. Unlike "dirty" or "scarring" torture (such as beatings, branding, dog attacks, hanging by limbs and sexual assaults), these stealth techniques do not leave any scars on the body, which makes it harder for torture victims to present evidence to courts and also harder to gather popular support and sympathy for their suffering.

A second reason why constitutional prohibitions of torture might fail in practice is that the use of torture actually enjoys fairly widespread popular support. Opinion poll research suggests that popular majorities often support torture, especially in the face of terror threats. Where constitutional rights lack popular support, there is reason to believe that the mechanisms that are supposed to make it harder to renege on the constitution's promises are less effective in practice. Although constitutions are designed to be counter-majoritarian, and supposed to raise the costs of reneging on the constitution's promises, all the constitutional mechanisms that are supposed to do so are ultimately fallible. Indeed, this was precisely James Madison's concern when he described the bill of rights as nothing but "parchment barriers." According to Madison, constitutions can prevent the problem of "faction," that is, minorities taking advantage of the majority. But Madison was worried that constitutional rights would not be able to systematically protect minorities from majorities. Our findings confirm Madison's intuition that when majorities want to violate rights, constitutional rights might be less effective.

What are you working on next?

Adam Chilton and I have a number of papers where we try to get at the causal effect of constitutional rights adoption. In another paper, we explore the impact of six political rights: the right to form political parties, the right to unionize and/or strike, the freedom of association, the freedom of religion, the freedom of expression and the freedom of movement. We find that "organizational rights," that is, rights that establish organizations that can act strategically to protect the right (most notably, the right to form political parties and the right to form trade unions) are more effective than those rights that are typically practiced on an individual basis only (such as the freedom of expression and the freedom of movement). We suggest that the distinctive feature of organizational rights is that they do not merely represent a substantive policy preference for a particular right, but also aid the establishment of organizations — political parties and trade unions — that have the incentives to safeguard the right as well as the means to act strategically to protect it from government repression. In other words, they have a built-in mechanism that addresses the collective-action problem that prevents individuals from organizing against their government when their rights are violated.

We may explore the impact of other constitutional rights in the future, and also intend to conduct an experiment to explore under what circumstances people want their government to uphold their constitution, and under which circumstances they don't.

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