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Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the ...

The Lack of Discretion in Abu Ghraib and Other War Crimes


           Inhumanity exists in every faucet of society. The Code of Hammurabi did nothing to hide this by harsh sentencing and executions. As society progresses into a more progressive construct, inhumanity is not treated, but rather hidden or covered-up. Sometimes it is in the name of science that people are mistreated, and sometimes it is out of pure mens rea. The sociology behind the use of discretion changes on a case by case basis, but a constant, however, is that when humans are placed in a position of power over helpless and de-humanized people, cruelty tends to prevail.

            Abu Ghraib opened in the 1950’s and was a seemingly normal prison at first. It was built by British contractors and used by Saddam Hussein throughout the 1990’s and early 2000’s. It closed down in 2014 after being renamed the “Baghdad Central Prison,” and since, three mass-burial sites have been uncovered. These burial sites contain over a thousand people, most of whom were political prisoners.

            The prison was burglarized shortly before United States forces took control in 2003, and everything that could be moved was looted or vandalized. When the 372nd Military Police Company took command of Abu Ghraib, it housed around seven thousand detainees. The conditions for detainees and soldiers alike were abysmal and a vast number of inmates had yet to be convicted of a crime. In the early months of 2006, the reservist soldiers from the 372nd Military Police Company would be at the center of the biggest human rights abuse scandals of Operation Iraqi Freedom.

            From an internal memorandum penned by Major General Antonio M. Taguba, the abuse of the detainees was rampant. Chemical lights and broomsticks were used to sodomize inmates, rape was often threatened and group masturbation forced, Military Working Dogs were utilized to intimidate and attack inmates, and prisoners were beat with chairs and other objects. (Hersh, 2004)

Most of the soldiers involved knew what was happening and were even praised for it. One SSG Ivan L. Frederick II had written to his family in emails and letters that Military Intelligence was in charge of the operation, and that they encouraged the inhumane treatment. Frederick recalled a time in his letters when a detainee under the jurisdiction of the C.I.A was brought in for questioning.

“They stressed him out so bad that the man passed away. They put his body in a body bag and packed him in ice for approximately twenty-four hours in the shower…The next day the medics came and put his body on a stretcher, placed a fake IV in his arm and took him away.” (Hersh, 2004)

Frederick had already been told the month before when bringing up the inhumane treatment by his commanding officer, Lieutenant Colonel Jerry Phillabaum to “[not] worry about it.” This nonchalance coupled with encouragement and praise provides a catalyst for even the most morally astute men to commit the most heinous of crimes.

This was not an isolated incident and in fact, has happened a few times in American history. Guantanamo Bay has had it’s share of scandals throughout the years and what has been ascertained is that terrible detainee treatment seems to be the Standard Operating Procedure for intelligence agencies to extract information. Some supporters of this treatment even argue that because the detainees are not actually prisoners of war, the Geneva Convention does not apply to them. (Amnesty International, 2006) This mindset provides a convenient loophole for interrogators to torture or instruct the torture of inmates with little-to-no repercussions.

In 2003, the Pentagon approved techniques that would allow interrogators to use practices that would be highly scrutinized in the following years. A classified list of these techniques was the “First documented official policy permitting interrogators to use physically and psychologically stressful methods during questioning.” (Priest & Stephens, 2004) While this doesn’t explain why the lower enlisted Military Police at Abu Ghraib were able to act in such an immoral way, it does offer credence to their defense that they were, “Just following orders.”

            In 1936 Japanese-occupied Manchuria, Unit 731 led by General Shiro Ishii conducted inhumane human experimentation on thousands of prisoners for the Japanese Empire. Unit 731 is considered by many as one of the most disgusting, terrorizing, and strangely interesting displays of evil to be enacted by humanity in the last couple of centuries. The atomic bomb that was dropped on two Japanese cities at the close of the war almost makes the atrocities suffered by Unit 731’s victims seem humane and fair.

            Uncovered at the site in Manchuria was evidence of thousands of biological experiments, on victims of all ages and backgrounds. The Japanese did not discriminate, and much like the war crimes committed in Nazi Germany, a complete disregard for human life was paramount. The experiments ranged from infecting individuals with biological agents, using skin-penetrating bombs to infect them, to testing how long in freezing water an individual can survive. It is noted that unlike the German human experimentation trials, every one of Unit 731’s victims succumbed, if not from the experiment than to be studied in the autopsy. (Howard Brody, 2014)

Germany was no stranger to war crimes during the holocaust, and human experimentation was not much different than in Japan. Because of the Nuremburg Doctors’ Trials, more information was uncovered about why these experiments were allowed to persist and why a seemingly average sentry or military prison guard could be coerced into acting in such an evil manner. It’s obvious that not everyone involved suffered from a lack of empathy causing psychological disorder, so why follow an unlawful order, especially as vile torture?

            According to the findings of John W. Thompson, “The Nazis justified their experiments on three grounds—racist, eugenics/public health, and wartime national interests.” (Howard Brody, 2014) The same grounds for experimentation was later uncovered by Dr. Norbert H. Fell, upon interviewing past members of Unit 731 in post-war Japan. While Germans believed that other races would “taint their Aryan bloodline,” members of Unit 731 felt that the Chinese and Koreans (vast majority of the experimented) were inferior to them. Wartime national interests and patriotism in Imperial Japan played key roles as well.

            While racism was a powerful motivator for the Axis Powers, it does not explain why the Military Police soldiers at Abu Ghraib acted in such a way. The United States’ Army is comprised of a multitude of races and every step of a soldier’s enlistment is careful to promote an environment where all peoples are treated as equal.  This means that, based on past atrocities, they could have been acting in such a way because they were simply protecting wartime interests. This makes sense if they were following the orders of the interrogators placed above them, but it still requires thought processes and conducting specific actions to be cruel, so why would any Abu Ghraib Military Policeman, Unit 731 member, or Nazi German guard stationed at Auschwitz still act unethically even when being told to?

Geneva Conventions and ethical treatment of prisoners is consistently drilled into the head of every trainee before heading to a combat theatre. The rules of engagement are echoed throughout the squad before every mission. All soldiers have the right to exercise freewill and question their leader’s intentions as long as their leader is acting unethically. While there is no clear-cut answer on why seemingly normal and ethical humans of sound mind can act irrationally, helpful information may have actually been found in the United States during the 1960’s.

            The Stanford Prison Experiment is world renowned for what it taught us about the psychology of group dynamics. Even though it was cut short and discredited on multiple grounds, it is one of the most influential studies to have ever been conducted. Participants claimed post-traumatic stress for the rest of their lives after the six days spent in the fake prison in the Stanford underbelly. Even the volunteers who role-played as the guards suffered from some sort of emotional stress following the conclusion of the most controversial experiment in modern American history.

            In 1971, Philip Zimbardo placed an ad for volunteers to engage in a sociological experiment in which half of a group would be divided into guards, and the other half, inmates. The groups were randomly selected, with the guards receiving sunglasses and batons and the inmates not being allowed to use their real names or wear underwear. Among other tactics used to force helplessness was solitary confinement and withholding of food. Zimbardo himself understands that this was a mistake as he was changing too many variables about the experiment to keep it scientifically accurate, but a lot was still learned about human behavior over the next six days.

            According to Christopher Zoukis, a prisoner rights’ activist and contributor at Huffington Post, states that, “When you take people from any walk of life and dehumanize them, you get an inhumane result.” (Zoukis, 2017) The Stanford Prison Experiment was designed to test how humans acted in captivity. “What it did was show the world how broken, and how dangerous, the system truly is, and what people are capable of within its structure of power and powerlessness.” This is important when considering that the soldiers in Abu Ghraib had no formal training and all but two of the lower enlisted had any corrections experience. When people are placed in charge of another, dehumanized and powerless individual, the result will almost always be unethical and inhumane.

            Prisons in the United States are suffering from the same epidemic of inhumanity that spurred the premature end of the Stanford Prison Experiment. In response to the experiment itself, an inmate who had been in solitary confinement for thirty-six months stated that:

“If I even whispered to the man in the next cell [this] resulted in being beaten by guards, sprayed with chemical mace, black jacked, stomped, and thrown into a strip cell naked to sleep on a concrete floor without bedding, covering, wash basin, or even a toilet. I know that thieves must be punished, and I don’t justify stealing even though I am a thief myself. But now I don’t think I will be a thief when I am released. I am not rehabilitated either. I now only think of killing those who have beaten me and treated me as if I were a dog,” (Zoukis, 2017)

            This is appalling because when we sentence a criminal to be taken into custody by the state or country, we are trusting that we are being ethical and humane in this decision. A vast trove of news events actually shows the opposite, however.

In Orange Country, California, three women are currently suing the Orange County jail for indirectly causing the deaths of their children. One of the women, Sandra Quinones, claims that after her water broke, it took deputies over two hours to get the woman to a hospital, a trip that involved a stop for coffee at a Starbucks. The baby passed away in the hospital. Another woman, Ciera Stoetling, gave birth in the county jail after informing the jail nurse that she was having contractions. The nurse told her that there was not enough staff to take her to a hospital and she would have to wait two more days. The baby later passed away. Regardless of the circumstances of their arrest, these women did not deserve to lose their children, especially over a coffee break at Starbucks. The inhumanity displayed by the guards and staff at the Orange County Jail is inexcusable, but unfortunately, seems business as usual.

Solitary confinement is another way that our prisons commit acts on par with what the victims in Abu Ghraib experienced as well. In the United States, it’s on a much larger scale and it is estimated that at any given time that there are 80,000 inmates in solitary confinement across America, or 7% of the entire prison population. (ACLU, 2014) In a Supreme Court case from 1890, In re Medley, 134 U.S. 160, 168, it was stated that prisoners in solitary confinement, “…fell,  after  even  a  short  confinement,  into  a semi-fatuous condition, from which it was next to impossible to arouse them, and others became  violently  insane;  others  still,  committed  suicide;  while  those  who  stood  the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” (ACLU, 2014) This means that solitary confinement was deemed ineffective and cruel over a century ago, but we still house 7% of our prison population in it, meaning we are essentially committing an inhumane and unethical act in doing it.

Prison guards, whether at war or domestic, tend to act incongruent with ethics and humanity. Guards in Unit 731 believed that their race being superior precluded any humanity needed to be shown to their prisoners. German guards at concentration camps believed in the war effort so much that they helped carry out inhumane experimentation on inmates. Humanity has not evolved to a point yet where cruelty is not in our social construct and since, evil still persists today. The Military Police personnel that were in charge of Abu Ghraib decided that their discretion included sexual abuse and violence against their political prisoners, most of whom had not been convicted of any crimes yet. Inhumanity is a trait that all humans are capable of, and whether leadership understands this and is taking advantage of it, or it is a collection of circumstances that places people in these positions of abuse, the entire system is engaging in cruel and unusual punishment.


Works Cited

ACLU. (2014). The Dangerous Overuse of Solitary Confinement in the United States. Retrieved from ACLU:

Amnesty International. (2006, February 6). Guantánamo Bay - a human rights scandal. Retrieved from Amnesty International:

Hersh, S. M. (2004, April 30). Torture at Abu Ghraib. Retrieved from The New Yorker:

Howard Brody, S. E.-B. (2014). United States Responses to Japanese Wartime Inhuman Experimentation after World War II: National Security and Wartime Exigency. Camb Q Healthc Ethics, 220–230.

Priest, D., & Stephens, J. (2004, May 9). Pentagon Approved Tougher Interrogations. Retrieved from Washington Post:

Zoukis, C. (2017, July 20). What Humanity Learned From The Stanford Prison Experiment. Retrieved from Huffington Post:

Photo by Jimmy Chan from Pexels

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