Committee on Racial Discrimination, Concluding Observations on the Combined Seventh to Ninth Reports of the United States, CERD/C/USA/CO/7-9 (2014), excerpt | Samuel Moyn | August 10, 2016

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Committee on Racial Discrimination, Concluding Observations on the Combined Seventh to Ninth Reports of the United States, CERD/C/USA/CO/7-9 (2014), excerpt

Committee on the Elimination of Racial Discrimination

Concluding observations on the combined seventh to ninth periodic reports of the United States of America*

1. The Committee considered the seventh to ninth periodic reports of the United States of America, submitted in one document (CERD/C/USA/7-9), at its 2299th and 2300th meetings (CERD/C/SR.2299 and SR.2300), held on 13 and 14 August 2014. At its 2317th meeting, held on 26 August 2014, it adopted the following concluding observations….

C. Concerns and recommendations

Applicability of the Convention at the national level

2. While noting the applicability of the disparate impact doctrine in certain fields of life, the Committee remains concerned at its limited scope and applicability. It thus reiterates its previous concern that the definition of racial discrimination used in federal and state legislation, as well as in court practice, is not in line with article 1, paragraph 1, of the Convention on the Elimination of All Forms of Racial Discrimination, which requires States parties to prohibit and eliminate racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but are discriminatory in effect (para. 10). The Committee expresses further concern at the lack of progress in withdrawing or narrowing the scope of the reservation to article 2 of the Convention and in prohibiting all forms of discriminatory acts perpetrated by private individuals, groups or organizations (para. 11) (arts. 1 (1), 2 and 6).

The Committee underlines the responsibility of the federal Government for the implementation of the Convention, and calls upon the State party to take concrete steps to:

(a) Prohibit racial discrimination in all its forms in federal and state legislation, including indirect discrimination, covering all fields of law and public life, in accordance with article 1, paragraph 1, of the Convention;

(b) Consider withdrawing or narrowing its reservation to article 2 of the Convention and broaden the protection afforded by law against all discriminatory acts perpetrated by private individuals, groups or organizations; 

(c) Improve the system of monitoring and response by federal bodies to prevent and challenge situations of racial discrimination.

National human rights institution

3. While taking note of the creation of the Equality Working Group, the Committee reiterates its concern at the lack of an institutionalized coordinating mechanism with capacities to ensure the effective implementation of the Convention at the federal, state and local levels (para. 13). Noting the role that an independent national human rights institution can play in that regard, the Committee expresses regret at the lack of progress in establishing a national human rights institution, as recommended in its previous concluding observations (para. 12) (art. 2).

The Committee recommends that the State party create a permanent and effective coordinating mechanism, such as a national human rights institution established in accordance with the principles relating to the status of national institutions (the Paris Principles) (General Assembly resolution 48/134, annex) to ensure the full implementation of the Convention throughout the State party and the territories under its effective control, monitor compliance of domestic laws and policies with the provisions of the Convention and systematically carry out anti-discrimination training and awareness-raising activities at the federal, state and local levels.

Special measures

4. Taking note of the Supreme Court decision of April 2014 in Schuette v. Coalition to Defend Affirmative Action and the measures adopted by several states against the use of affirmative action in school admissions, the Committee expresses concern at the increasing restrictions, based on race or ethnic origin, on the use of special measures as a tool to eliminate persistent disparities in the enjoyment of human rights and fundamental freedoms (art. 2 (2)).

The Committee reiterates its previous recommendation (para. 15) to adopt and strengthen the use of special measures, which is an obligation arising from article 2, paragraph 2, of the Convention, when circumstances warrant their use as a tool to eliminate the persistent disparities in the enjoyment of human rights and fundamental freedoms, based on race or ethnic origin. In that regard, it recommends that the State party take into account the Committee’s general recommendation No. 32 (2009) on the meaning and scope of special measures in the International Convention on the Elimination of All Forms Racial Discrimination….

Racial profiling and illegal surveillance

5. While welcoming the acknowledgement by the State party that racial or ethnic profiling is not effective law enforcement practice and is inconsistent with its commitment to fairness in the justice system, the Committee remains concerned at the practice of racial profiling of racial or ethnic minorities by law enforcement officials, including the Federal Bureau of Investigation (FBI), the Transportation Security Administration, border enforcement officials and local police (arts. 2, 4 (c) and 5 (b)).

Recalling its general recommendation No. 31 (2001) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee urges the State party to intensify efforts to effectively combat and end the practice of racial profiling by federal, state and local law enforcement officials, including by:

(a) Adopting and implementing legislation which specifically prohibits law enforcement officials from engaging in racial profiling, such as the End Racial Profiling Act;

(b) Swiftly revising policies insofar as they permit racial profiling, illegal surveillance, monitoring and intelligence gathering, including the 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies;

(c) Ending immigration enforcement programmes and policies which indirectly promote racial profiling, such as the Secure Communities programme and the Immigration and Nationality Act section 287(g) programme; 

(d) Undertaking prompt, thorough and impartial investigations into all allegations of racial profiling, surveillance, monitoring and illegal intelligence-gathering; holding those responsible accountable; and providing effective remedies, including guarantees of non-repetition. …

Racist hate speech and hate crimes

6. The Committee reiterates its concern at the lack of prohibition of racist hate speech, except for instances amounting to incitement to imminent violence or “true threats” of violence, as well as the wide scope of the reservations to article 4 of the Convention (para. 18). The Committee is also concerned at the underreporting of instances of hate crimes by the victims to the police, as well as by law enforcement officials to the FBI, given the voluntary nature to comply with the request of the FBI for hate crime statistics (arts. 2 and 4).

The Committee recommends that the State party:

(a) Consider withdrawing or narrowing its reservation to article 4 of the Convention, taking into account the Committee’s general recommendation No. 35 (2013) on combating racist hate speech, which outlines diverse measures to effectively combat racist hate speech while protecting the legitimate right to freedom of expression;

(b) Improve its data collection system for statistics on complaints of hate crimes, including by officially requiring all law enforcement agencies to record and transmit all such instances to the FBI, disaggregated by factors such as race, ethnicity, age and religion, and regularly publicize such information;

(c) Ensure that all law enforcement officials and all new recruits are provided with initial and ongoing in-service training on the investigation and reporting of complaints of hate crimes; 

(d) Provide statistical information concerning trends in instances of racist hate speech in its next periodic report so as to assess the impact of measures adopted by the State party in combating racist hate speech.  ….

Criminalization of homelessness

7. While appreciating the measures taken by the federal and some state and local authorities to address homelessness, the Committee is concerned at the high number of homeless persons, who are disproportionately from racial and ethnic minorities, particularly African Americans, Hispanic/Latino Americans and Native Americans, and at the criminalization of homelessness through laws that prohibit activities such as loitering, camping, begging and lying down in public spaces (arts. 2 and 5 (e)).

The Committee calls upon the State party to:

(a) Abolish laws and policies making homelessness a crime;

(b) Ensure close cooperation among all relevant stakeholders, including social, health, law enforcement and justice professionals at all levels, to intensify efforts to find solutions for the homeless, in accordance with human rights standards;

(c) Offer incentives to decriminalize homelessness, including by providing financial support to local authorities that implement alternatives to criminalization, and withdrawing funding from local authorities that criminalize homelessness.

Discrimination and segregation in housing

8. While acknowledging the positive steps taken by the State party to address discrimination in access to housing and to reverse historical patterns of segregation, the Committee remains concerned at: (a) the persistence of discrimination in access to housing on the basis of race, colour, ethnicity or national origin; (b) the high degree of racial segregation and concentrated poverty in neighbourhoods characterized by sub-standard conditions and services, including poor housing conditions, limited employment opportunities, inadequate access to health-care facilities, underresourced schools and high exposure to crime and violence; and (c) discriminatory mortgage-lending practices and the foreclosure crisis which disproportionately affected, and continues to affect, racial and ethnic minorities (arts. 3 and 5 (e)).

The Committee urges the State party to intensify its efforts to eliminate discrimination in access to housing and residential segregation based on race, colour ethnicity or national origin, by, inter alia:

(a) Ensuring the availability of affordable and adequate housing for all, including by effectively implementing the Affirmatively Furthering Fair Housing requirement by the Department of Housing and Urban Development, across all agencies administering housing programmes;

(b) Strengthening the implementation of legislation to combat discrimination in housing, such as the Fair Housing Act and Title VIII of the Civil Rights Act of 1968, including through the provision of adequate resources and increasing the capacity of the Department of Housing and Urban Development;

(c) Undertaking prompt, independent and thorough investigation into all cases of discriminatory practices by private actors, including in relation to discriminatory mortgage lending practices, steering and red-lining; holding those responsible to account; and providing effective remedies, including appropriate compensation, guarantees of non-repetition and changes in relevant laws and practices.

Education

9. While welcoming measures taken by the State party to address de facto racial segregation in education, such as the formation of the Equity and Excellence Commission in 2011, the Committee remains concerned that students from racial and ethnic minorities disproportionately continue to attend segregated schools with segregated or unequal facilities and that even those who are enrolled in racially diverse schools are frequently assigned to “single-race” classes, denied equal access to advanced courses and disciplined unfairly and disproportionately due to their race, including referral to the criminal justice system. It also expresses concern at racial disparities in academic achievement, which contribute to unequal access to employment opportunities (arts. 3 and 5 (e)).

The Committee recommends that the State party intensify its efforts to ensure equal access to education by, inter alia:

(a) Developing and adopting a comprehensive plan to address racial segregation in schools and neighbourhoods, with concrete goals, timelines and impact assessment mechanisms;

(b) Increasing federal funding for programmes and policies that promote racially integrated learning environments for students;

(c) Effectively implementing the recommendations contained in the report of the Equity and Excellence Commission published in February 2013;

(d) Re-authorizing the Elementary and Secondary Education Act with provisions that support and encourage solutions to address school segregation; 

(e) Continuing to work closely with state and local education authorities as well as civil society groups to strengthen measures to address the factors that contribute to the educational achievement gap. 

Gun violence

10. The Committee is concerned at the high number of gun-related deaths and injuries which disproportionately affect members of racial and ethnic minorities, particularly African Americans. It is also concerned at the proliferation of “Stand Your Ground” laws, which are used to circumvent the limits of legitimate self-defence, in violation of the State party’s duty to protect life, and have a disproportionate and discriminatory impact on members of racial and ethnic minorities (arts. 2, 5 (b) and 6).

The Committee urges the State party to take effective legislative and policy measures to fulfil its obligation to protect the right to life and to reduce gun violence, including by adopting legislation expanding background checks for all private firearm transfers and prohibiting the practice of carrying concealed handguns in public venues; increasing transparency concerning gun use in crime and illegal gun sales, including by repealing the Tiahrt Amendments; and reviewing the Stand Your Ground laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when deadly force is used for self-defence.

Excessive use of force by law enforcement officials

11. While recognizing the efforts made by the State party to intensify the enforcement of relevant laws, the Committee reiterates its previous concern at the brutality and excessive use of force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals, which has a disparate impact on African Americans and undocumented migrants crossing the United States–Mexico border (para. 25). It also remains concerned that, despite the measures taken by the State party to prosecute law enforcement officials for criminal misconduct, impunity for abuses, in particular those committed by the Customs and Border Protection (CBP) against Hispanic/Latino Americans and undocumented migrants, remains a widespread problem (arts. 5 (b) and 6).

The Committee urges the State party to:

(a) Ensure that each allegation of excessive use of force by law enforcement officials is promptly and effectively investigated; that the alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions; that investigations are re-opened when new evidence becomes available; and that victims or their families are provided with adequate compensation;

(b) Intensify its efforts to prevent the excessive use of force by law enforcement officials by ensuring compliance with the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and ensure that the new CBP directive on the use of force is applied and enforced in practice;

(c) Improve the reporting of cases involving the excessive use of force and strengthen oversight of, and accountability for, inappropriate use of force; 

(d) Provide, in its next periodic report, detailed information concerning investigations undertaken into allegations of excessive use of force by law enforcement officials, including the CBP, as well as their outcomes, including disciplinary or prosecutorial action taken against the perpetrator and remedies provided to victims or their families. …

Criminal justice system

12. While welcoming the measures taken by the State party to address racial disparities in the criminal justice system, such as the launch of the “Smart on Crime” initiative in August 2013, the Committee remains concerned that members of racial and ethnic minorities, particularly African Americans, continue to be disproportionately arrested, incarcerated and subjected to harsher sentences, including life imprisonment without parole and the death penalty. It expresses concern that the overrepresentation of racial and ethnic minorities in the criminal justice system is exacerbated by the use of prosecutorial discretion, the application of mandatory minimum drug-offence sentencing policies, and the implementation of repeat offender laws. The Committee is also concerned at the negative impact of parental incarceration on children from racial and ethnic minorities (arts. 2, 5 and 6).

The Committee calls upon the State party to take concrete and effective steps to eliminate racial disparities at all stages of the criminal justice system, taking into account the Committee’s general recommendation No. 31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, by, inter alia:

(a) Amending laws and policies leading to racially disparate impacts in the criminal justice system at the federal, state and local levels and implementing effective national strategies or plans of action aimed at eliminating structural discrimination;

(b) Imposing a moratorium on the death penalty, at the federal level, with a view to abolishing the death penalty;

(c) Ensuring that the impact of incarceration on children and/or other dependents is taken into account when sentencing an individual convicted of a non-violent offence and promoting the use of alternatives to imprisonment. …

National action plan to combat racial discrimination

13. While noting various measures taken by the State party to combat prejudice and promote understanding and tolerance, the Committee expresses concern at the absence of a national action plan to combat racial discrimination and to implement its recommendations. It is also concerned about the lack of inclusion of human rights in the school curricula (art. 7).

The Committee recommends that the State party adopt a national action plan to combat structural racial discrimination, and to ensure that school curricula, textbooks and teaching materials are informed by and address human rights themes and seek to promote understanding among racial and ethnic minority groups. …

Paragraphs of particular importance

14. The Committee also wishes to draw the attention of the State party to the particular importance of the recommendations in paragraphs 8 [and 12] above, and requests the State party to provide detailed information in its next periodic report on concrete measures taken to implement those recommendations….

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August 10, 2016

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Samuel Moyn

Harvard Law School

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