COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONCLUDES PUBLIC CONSIDERATION OF REPORT OF THE UNITED STATES

CERD
59th session
6 August 2001
Afternoon


Delegation Says United States Has No Plans to Impose
Moratorium on Death Penalty



The Committee on the Elimination of Racial Discrimination this afternoon concluded its public consideration of an initial report of the United States with a Government delegation saying that the country's laws imposed strict protection to ensure that race did not affect decisions concerning the death penalty.

The delegation told the Committee that the United States Constitution and federal law imposed strict protection to ensure that race did not affect decisions concerning whether or not to impose the death penalty. In addition, federal law expressly prohibited the imposition of capital penalty on the basis of race, and required that each capital case be considered on an individual basis.

The United States strongly condemned disparate treatment of racial and ethnic minorities, the delegation also told the Committee, adding that this was especially the case with respect to its criminal system; and discrimination on the basis of race or ethnicity within the criminal justice system was prohibited in the country.

Asked if the United States would consider imposing a moratorium on the death penalty while it determined whether its implementation of the death penalty was tainted by racial discrimination, the delegation said the federal Government had no plans to impose a moratorium on the death penalty. There were procedures in place, both in the state and the federal systems, to monitor imposition of the death penalty to ensure that it was not tainted by racial bias, the delegation added.




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Committee Expert Yuri A. Reshetov, who served as country rapporteur to the report of the United States, recommended in preliminary remarks that the United States should consider recognizing the Committee's competence to receive and consider communications.

The Committee will issue its concluding observations and recommendations on the report of the United States towards the end of its three-week session which concludes on 17 August. A representative of the State party will be present during the release of the conclusions.

Also participating in the debate were Committee Experts Mahmoud Aboul-Nasr, Patrick Thornberry, Regis de Gouttes, Mario Jorge Yutzis, Ion Diaconu and Agha Shahi.

The United States is among the 157 States parties to the International Convention on the Elimination of All Forms of Racial Discrimination and as such it is obligated to file periodic summaries of its efforts to give effect to the provisions of the treaty. A 9-member United States delegation was on hand during three meetings to present the report and provide answers to the Experts' queries.

When the Committee reconvenes at 10 a.m. on Tuesday, 7 August, it will examine the situation of Mali under its review procedure, which is designed for States parties whose reports are seriously overdue.

Response of the United States

In response to questions raised by the Committee's Experts, the members of the United States delegation said that the United States Supreme Court had held that "the power to make treaties with the Indian Tribes was coextensive with that to make treaties with foreign nations". That said, while Indian treaties often recognized the sovereignty of Indian tribes, they differed from foreign treaties. Under the United States law, Indian tribes were "domestic dependent nations". There was a special trust relationship between those nations and the United States. There were likewise special canons of construction, recognized by the United States Supreme Court, that required that Indian treaties be construed in favour of the Indians. Those rules were based upon a unique trust relationship between the United States and Indian tribes. They did not apply to international treaties.

Asked why the United States did not incorporate the provisions of the Convention directly into United States domestic law, the delegation said nothing in the Convention required States parties to incorporate the provisions of the Convention directly into their domestic law. It was a basic principle of international law and it was up to State parties to determine how best to implement their obligations under international agreements. The United States had chosen to implement its international treaty obligations by passing legislation when necessary.

The United States strongly condemned disparate treatment of racial and ethnic minorities, the delegation said. That was especially the case with respect to its criminal system. Discrimination on the basis of race or ethnicity within the criminal justice system was prohibited in the United States. The Supreme Court had already held that what one recently came to refer to in America as "racial profiling" was unconstitutional. In the Whren versus United States case, the Court stated with a unanimous voice that "the Constitution prohibits selective enforcement of the law based on considerations such as race" under the Equal Protection Clause of the Fourteenth Amendment. The Amendment applied to all 50 states; the Fifth Amendment applied the same prohibition to the federal government.
The delegation said that the fight to eradicate racism required continued and constant vigilance. The Bush Administration appreciated that and was committed to eliminating racial profiling practices. Both the President and the Attorney-General had declared emphatically the racial profiling was wrong and should be ended.

Concerning mandatory minimum sentencing, the delegation said that the federal system was governed by the United States Sentencing Guidelines, which guided and in some cases limited the discretion federal judges had regarding the length of a convicted person's sentence. Racial and ethnic status might not properly be considered by judges when determining culpability or an appropriate sentence.

With regard to numerical disparities in incarceration levels, the delegation said that it bore repeating that it was the unequivocally clear and emphatic position of the United States that racial discrimination was wrong and should be eliminated where it was found, and especially when it was found to exist in the criminal justice system. The sources and causes of numerical disparities in incarceration rates for people of different races were complex and depended on a number of factors, some of which might be related to racial discrimination in the criminal justice system and other reasons.

Discrimination on the basis of race or ethnicity within the criminal system was prohibited in the United States, the delegation said. All Americans had the constitutional right to be free of excessive force and racially discriminatory police and prosecutorial conduct. The new Administration fully intended to investigate and, where appropriate, prosecute cases in which police brutality or racial profiling had occurred.

The delegation also said that the United States Constitution and federal law imposed strict protection to ensure that race did not affect decisions concerning whether or not to impose the death penalty. In addition, federal law expressly prohibited the imposition of capital penalty on the basis of race, and required that each capital case be considered on an individual basis. Those prohibitions against racial discrimination applied not only to prosecutors and judges and government officials, but also jurors, each of whom was a private citizen. While the Justice Department's review of existing federal death penalty procedures had produced no evidence of bias against racial or ethnic minorities, it did suggest that changes could be made to promote public confidence in the process's fairness and to improve its efficiency.

The United States strongly condemned racial segregation and discrimination in prisons and jails, and its laws strictly forbade such practices, the delegation said. Racial discrimination in prisons and jails was prohibited by the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Department of Justice had filed lawsuits to obtain federal court orders to end discrimination and discriminatory practices. Inmates also could bring litigation on their own behalf to remedy racial discrimination in state and local correctional facilities.

A question was raised about the efforts made by the Bush Administration with regard to addressing the relative lack of racial and ethnic minority participation in positions of public authority, to which the delegation said that President Bush was committed to an inclusive Administration, one that included people of high calibre, excellent credentials, and good character from all walks of life. For example, he has appointed the first African-American Secretary of State Colin Powell. The President had also appointed a number of African- Asian- and Hispanic-American citizens to higher positions.

In addition, the delegation said that the Bush Administration was committed to eliminating disparities in health care among racial and ethnic minorities and had given the Department of Health and Human Services primary responsibility for achieving results that reflected that commitment.

The delegation said that the Department of Health and Human Services had issued a number of grant awards to help eliminate health care disparities by expanding access to health care for medically under-served populations and to help poor and uninsured individuals with HIV/AIDS to obtain primary care and life-sustaining medications.

The legislative proposal of the President for reforming the federal programme for elementary and secondary education might affect many of the other indicators of inequality, such as persistent discrimination in employment and lack of access to technology, the delegation said. As the nation would ensure that all children received a high-level education, America's students would be better prepared for employment and would possess better technology skills, regardless of their race or ethnicity.

Home ownership remained at the heart of the American dream, the United States’ delegation said. The Fair Housing Act, passed in 1968, guaranteed that the right to own a home and to live in a community free of residential segregation would not be denied on the basis of race or colour, as well as other grounds. The Department of Justice brought lawsuits where there was a pattern of discrimination or a denial of rights to a group of persons. For example, those suits had included actions against predominantly white suburban jurisdictions that tried to block the development of housing likely to attract racial minorities.

The United States recognized claims by Alaskan Natives to lands in the State of Alaska, the delegation said. An Act was adopted in 1971 by the United States Congress in response to the United Supreme Courts' decision, which held that Alaska Natives' aboriginal title was not compensable under the Fifth Amendment to the Constitution. The Act compensated Alaska's 80,000 natives by providing for the payment of $1 billion and for the selection and development of 45 million acres of land for the natives.

The United States understood that, in the Committee's opinion, the prohibition of all ideas based on racial superiority or hatred was compatible with the right to freedom of opinion and expression, the delegation said. Nevertheless, the United States respectfully disagreed, and its position was deeply rooted in its history, and legal and political culture. In the country, the right to speak freely, even to espouse views offensive to most, was virtually an article of faith. The Fifth Amendment sharply curtailed the Government's ability to restrict or prohibit the expression or advocacy of certain ideas, no matter how distasteful. For the United States citizens, that was the cornerstone of their democracy that had resonance with regard to all media, from print to the Internet.

A question was asked about the measures to ensure non-discriminatory access to justice in the United States, to which the delegation said that the Constitution strictly forbade racial discrimination in the administration of justice. Existing federal laws provided procedural and substantive protection to assure that criminal and civil trials were not tainted by racial discrimination. Juries and grand juries were selected in a manner to avoid prejudice influencing the verdict.


Asked if the United States would consider imposing a moratorium on the death penalty while it determined if its implementation of the death penalty was tainted by racial discrimination, the delegation said the federal Government had no plans to impose a moratorium on the death penalty. There were procedures in place, both in the state and the federal systems, to monitor imposition of the death penalty to ensure that it was not tainted by racial bias. The Governor of Illinois had imposed a moratorium on the state's use of the death penalty, pending a review of its procedures and the reliability of its capital verdicts.

With regard to a report by the American-Arab Anti-Discrimination Committee report entitled "1998-2000 Report on Hate Crimes and Discrimination Against Arab-Americans", the delegation said that it contained allegations of hate crimes and hate speech directed at Arab-Americans. The report also emphasized that racial profiling adversary affected them. The prosecution of misconduct involving deprivation of rights based on race was one of the highest priorities of the Department of Justice.

According to the 2000 United States census, just over 12 per cent of the population were African-American, just under 12 per cent were Hispanic and about 4 per cent were Asian-American, the delegation said. The American Indian population, on and off tribal lands, enrolled and not, was 2.6 million. There were 4.1 million multi-race United States citizens who identified themselves as native American, among other races.

In follow-up questions, a Committee Expert asked about the 1996 terrorist act, which targeted 30 organizations as being terrorists, half of them being Arab organizations.

Another Expert recalled that many of the questions raised by Committee members were based on legal aspects of discrimination. However, they were concerned mainly about the protection of individuals. In addition, he said that he was not satisfied with the response provided by the delegation on the implementation of rights to tribal and indigenous people. The aspect of environmental pollution of indigenous lands was not mentioned by the delegation.

The view of the delegation that the decision of the Supreme Court did not affect the implementation of the provisions of the Convention could not be acceptable, the Expert said. If the implementation of affirmative action was prevented by court decisions, it would affect the implementation of the provisions in that direction.

With regard to the death penalty, the delegation had understood that the Committee was not only concerned by the racial aspect of it, but also by the whole aspect of the use of capital punishment, the Expert said. The process which led to the use of the death penalty sometimes took about fifteen years, which was quite long. The capital punishment was a concern to the Committee and it had expressed its opinion for its total abolishment.

There were millions of United States citizens who were disenfranchised in their voting because of activities related to crimes, an Expert said. What measures were envisaged by the Government to improve the situation?

Responding to the supplementary questions raised by Committee Experts, the delegation said that the combat against terrorism was simply "a fight against terrorism" wherever it came from. The allegation that it was focused on Arab organizations would be checked.


Concerning the disfranchising of rights to vote, the delegation said that much had to be done in the future concerning the voting system and to protect the right to vote. The case of the Florida voting had provided lessons which prompted the authorities to take decisions which would ensure that the case of the federal voting in Florida would never be repeated again.

YURI A. RESHETOV, the Committee Expert who acted as country rapporteur to the report of the United States, said that he hoped that the constructive dialogue with the delegation would continue in the future on a regular basis. He said the procedure of reservation on article 14 of the Convention should be in accordance with the spirit of that country’s Constitution and the Amendments. Many major Member States had recognized the competence of the Committee to receive and consider communications.

The delegation said that the United States had no intention at the present time of making a declaration under article 14.