Winter 2000-2001 - HR in US

continued . . . United States, by Human Rights Watch

The United States in 2000 submitted a report on its compliance with the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In September, the US produced-five years late-its initial report to the UN Committee on the Elimination of Racial Discrimination.

With unprecedented candor, the report acknowledged the persistence of racism, racial discrimination and de facto segregation in the US. The tenor and content of the report signaled the Clinton Administration's recognition that despite decades of civil rights legislation and public and private efforts, the inequalities faced by minorities remained one of the country's most crucial and unresolved human rights challenges.

One of the report's most significant weaknesses was in its consideration of the role of race discrimination in the criminal justice system. It acknowledged the dramatically disproportionate incarceration rates for minorities, noted the many studies indicating that members of minority groups, especially blacks and Hispanics, "may be disproportionately subject to adverse treatment throughout the criminal justice process," and acknowledged concerns that "incidents of police brutality seem to target disproportionately individuals belonging to racial or ethnic minorities." But it did not question whether the ostensibly race-neutral criminal laws or law enforcement practices causing the incarceration disparities violated CERD, nor did it acknowledge the federal government's obligation, under CERD, to ensure that state criminal justice systems (which account for 90 percent of the incarcerated population) were free of racial discrimination.

The report did acknowledge the dramatic, racially disparate impact of federal sentencing laws that prescribe different sentences for powder cocaine versus crack cocaine offenses, even though the two drugs are pharmacologically identical. The laws impose a mandatory five year prison sentence on anyone convicted of selling five grams or more of crack cocaine, and a ten year mandatory sentence for selling fifty grams or more. One hundred times as much powder cocaine must be sold to receive the same sentences. By setting a much lower drug-weight threshold for crack than powder cocaine, the laws resulted in substantially higher sentences for crack cocaine offenders. Although the majority of crack users were white, blacks comprised almost 90 percent of federal offenders convicted of crack offenses and hence served longer sentences for similar drug crimes than whites. While recounting the Clinton Administration's unsuccessful effort to secure a limited reform of the cocaine sentencing laws (a reform which, in any event, would still have left black drug defendants disproportionately vulnerable to higher sentences), the report did not venture an assessment of whether the current laws violate CERD. Nor did it consider whether the striking racial differences in the incarceration of drug offenders at the state level was consistent with CERD, reflecting the Administration's general reluctance to subject the US war on drugs to human rights scrutiny.

As reflected in the report, the Administration also mistakenly believed that US constitutional prohibitions on race discrimination meet its obligations under CERD. Under state and federal constitutional law, racial disparities in law enforcement are constitutional as long as they are not undertaken with discriminatory intent or purpose. But CERD prohibits policies or practices that have the effect of discriminating on the basis of race regardless of intent. By requiring proof of discriminatory intent, US constitutional law erects a frequently insurmountable obstacle to obtaining judicial relief from criminal justice policies that have an unjustifiably discriminatory impact. Instead of championing reforms that would reduce striking racial disparities in, for example, the rates at which blacks and whites are arrested and incarcerated on drug charges, the Clinton Administration expressed pride in constitutional protections that do not, in fact, meet international standards.

The US maintained its failure to become party to important human rights treaties, including the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It was one of only two countries in the world-with Somalia, which has no internationally recognized government-that had not ratified the Convention on the Rights of the Child. In addition, little progress was made toward signing and ratifying core International Labour Organization conventions intended to protect basic labor rights, though the Clinton Administration did sign ILO Convention No. 182, the Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour in December of 1999. It also submitted an ILO Convention concerning employment discrimination to the Senate for ratification, but the Senate did not act.

— Copyright © 2001 Human Rights Watch. Reprinted by permission. You can also read about the initial US report to the United Nations Committee against Torture-produced four years after it was due-acknowledging areas of "concern, contention and criticism" with regard to police abuse, excessive use of force in prison, prison overcrowding, physical and mental abuse of inmates, and the lack of adequate training and oversight for police and prison guards at the HRW web site (www.hrw.org).

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