Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Abolition of Forced Labour Convention, 1957 (No. 105) - United States of America (Ratification: 1991)

Article 1, subparagraph e, of the Convention. Racial discrimination in the exaction of compulsory prison labour. In its previous direct requests the Committee has noted data published by the Bureau of Justice Statistics of the US Department of Justice, showing significant racial disparities in the US criminal justice system, including the significant overrepresentation of African–Americans and Latinos/Hispanics within US prison populations. The Committee recalls that, in its General Survey of 2007, it pointed out that, even where the offence giving rise to the punishment is a common offence which does not otherwise come under the protection of Article 1(a), (c) or (d) of the Convention, but the punishment involving compulsory labour is meted out more severely to certain groups defined in racial, social, national or religious terms, this situation falls within the scope of the Convention. Since a prison sentence in the United States normally involves an obligation to perform labour, the Committee has asked the Government to comment and supply information on any measures taken or contemplated, to ensure that there is no racial, social or national discrimination in the imposition of prison sentences involving an obligation to perform labour.

The Committee notes that, apart from information about measures it is taking to examine federal sentencing and corrections policy, formulate a new federal cocaine sentencing policy, and make recommendations on amendments to cocaine sentencing legislation, which is discussed below, the Government has provided little information on this matter. The Committee notes with interest from federal and State Government Internet sites information concerning a number of recent measures in this realm. They include the following:

–           At the federal level, the Justice Integrity Act of 2009 (S.495 and H.R. 1412), a bill “to increase public confidence in the justice system and address any unwarranted racial and ethnic disparities in the criminal process,” was introduced in Congress in February of 2009. The bill requires the US Attorney-General to: (1) establish a pilot programme in ten US districts to promote fairness and the perception of fairness in the federal criminal justice system and to determine whether legislation is required; and (2) designate a US attorney in each of the districts to implement a plan for carrying out such pilot programme. The bill requires each US attorney designated to implement a pilot programme to appoint an advisory group consisting of judges, prosecutors, defence attorneys, and other individuals and entities who play an important role in the criminal justice system; and it requires each advisory group to: (1) collect and analyse data on the race and ethnicity of defendants at each stage of a criminal proceeding; (2) seek to determine causes of racial and ethnic disparities in the criminal justice process, and whether these disparities are … at least partially attributable to discrimination, insensitivity, or unconscious bias; and (3) submit to the US attorney a report and proposed plan for addressing such disparities. Each US attorney is required to annually evaluate the efficacy of a plan submitted by an advisory group, and the Attorney-General is required to: (1) prepare a comprehensive report on all advisory group plans and submit such report and plans to Congress; and (2) exercise continuing oversight of the criminal justice system to reduce unwarranted racial and ethnic disparities and improve such system.

–           In Wisconsin, a State in which African-Americans comprise 6 per cent of the overall population but represent 45 per cent of the population in adult Department of Corrections (DOC) facilities, an Executive Order, issued by the Governor on 21 March 2007, led to the creation of the Commission on Reducing Racial Disparities in the Wisconsin Justice System (CRRD), with a mandate to “determine whether discrimination is built into the criminal justice system at each stage of the criminal justice system continuum of arrest through parole” and to “recommend strategies and solutions to reduce the racial disparity in the Wisconsin criminal justice system”. The Commission held informational meetings, conducted public hearings, reviewed submissions, studied reports of similar commissions elsewhere, and studied sentencing practices and utilization of alternative dispositions, and it then issued a comprehensive report. The Committee notes that among the Commission’s finding were the following: “The Commission finds that the racial disparities within the criminal justice system are a serious problem that should be addressed regardless of whether they arise by chance or from intentional discrimination. The numbers of citizens who spoke at public hearings or wrote to the Commission offering personal examples of discrimination have raised significant concerns that discrimination exists.” The Committee further notes the Commission’s finding that there was a critical need for more data: “Throughout its deliberations, the Commission has heard testimony and has noted the need for data and information on which to base recommendations for changes that will reduce disparity in the justice system. Whether it is as a result of the exercise of discretion by law enforcement officers, prosecutors, or judges, the need for accurate information on which to base systemic policies and changes has been a source of frequent testimony.” The Commission therefore recommended that: “a state-wide scheme should be developed and utilized to collect data on race and ethnicity at all points in the criminal justice system process”; that: “throughout the State, we must increase and improve the validity and reliability of data, for example, collecting and making data available”; and that “local jurisdictions must develop a tracking system to identify race and age at all stages of contact with the justice system”. The Commission also recommended, inter alia, that: “The [State] Office of Justice Assistance, the State Prosecutor’s Office and the [US] Department of Justice’s SPET [State Prosecutors Education and Training Program] office should collaborate to develop and offer training on conscious or unconscious racism and the danger of institutional bias in the juvenile and criminal justice systems at all SPET conferences”, and that: “Judges should report the appearance of any pattern and practice of disparate treatment by any actor involved in policing, charging decisions, sentencing recommendations, or any court proceeding, to the appropriate chief executive officer and/or agency head.” In May 2008, the Governor issued Executive Order 251, creating the Racial Disparities Oversight Commission to ensure that recommendations of the CRRD were implemented and to “exercise oversight and advocacy concerning programs and policies to reduce disparate treatment of people of color across the criminal justice spectrum”.

–           In Connecticut, the State Government enacted “racial impact” legislation in June 2008, involving the adoption of a new legislative rule allowing the Connecticut General Assembly, beginning with the 2009 session, to consider the potential racial or ethnic impact of criminal justice legislation before it becomes law. The rule provides that whenever a legislative committee approves a bill which, if passed, would increase or decrease the pre-trial or sentenced populations of state corrections facilities, a majority of that committee may vote to require that a “racial and ethnic impact statement” be prepared by the legislature’s non-partisan staff. Within ten days, the report would have to determine, if possible, whether the bill would have a disparate impact on the racial and ethnic composition of the correctional facility population, and an explanation of that impact. Any racial and ethnic impact statement prepared for a bill would be solely for the purpose of information, summarization and explanation for members of the General Assembly. Connecticut became the second State in the nation, after Iowa, to enact such a legislative rule.

–           In Iowa, a State in which African-Americans make up 2 per cent of the population but 24 per cent of the prison population, the State Government in April 2008 enacted a bill, House File 2393, requiring a “minority impact statement” for any new or amended legislation relating to public offences, or changes to sentencing, parole and probation procedures. The law requires that an impact statement be attached to any bill, joint resolution, or amendment which proposes a change in the law which creates a public offence, significantly changes an existing public offence or the penalty for an existing offence, or changes existing sentencing, parole, or probation procedures. The statement must include information concerning, inter alia, “the impact of the legislation on minorities”.

–           In Illinois, a State in which as revealed by a 2007 study African–Americans are nine times more likely to be incarcerated than whites, the State Government in October 2008 enacted Public Act 95-0995, creating the Illinois Disproportionate Justice Impact Study Commission. Its mandate is to: (1) study the nature and extent of the harm caused to minority communities through the practical application of the violation and sentencing provisions of the Criminal Code of 1961 and other criminal laws; (2) develop specific findings on the nature and extent of the harm caused to minority communities; and (3) offer recommendations for legislation and policy changes to address the disproportionate impact that even facially neutral laws can have on minority communities. The Commission members were to begin their work in September of 2009.

–           In Minnesota, the Minnesota Sentencing Guidelines Commission in its “Report to the Legislature 2009” endorsed the preparation of racial-impact “notes” on proposed crime bills for the legislature and explained the potential usefulness to policy-makers of racial impact assessments: “If a significant disparity in racial impact can be predicted before a bill is passed, it may be possible to consider alternatives that enhance public safety without creating that disparity. Just as with the Commission’s fiscal impact notes, the agency does not comment on whether or not a particular bill should be enacted. Rather, it is setting out facts that may be useful to the Legislature, whose members frequently express concerns about the disparity between the number of minorities in our population and the number in our prisons”. The Commission also referred to a major state-wide research project on race as a cause of the racial disparity in the prison system: “Our Commissioners are determined to examine racial disparity in our prison populations in a sophisticated, state-wide research project that will provide facts to allow real understanding of whether and how race affects imprisonment in Minnesota. We are collaborating with experts from the University of Minnesota Law School, and with State Court researchers on this project.”

The Committee asks that in its next report the Government comment on the measures noted above, and that it supply information regarding the application of the laws enacted and rules referred to and of the procedures set up to evaluate the racial impact of proposed sentencing and other criminal justice legislation, as well as proposals for legislative alternatives, including copies of reports prepared under the various reporting and oversight mechanisms noted above. The Committee hopes that the Government will soon enact the Justice Integrity Act and that other state governments take measures similar to those noted above, including measures to review laws, policies and practices that may not be discriminatory in purpose, but in effect, so as to ensure that racial discrimination at the sentencing and other stages of criminal justice process does not result in the imposition of racially disproportionate prison sentences involving compulsory labour, and that its law and practice is thereby brought into conformity with the Convention. The Committee asks that in its next report the Government provide information on the progress of such measures. Noting the Government’s indication that it “is committed to … working to root out any unwarranted and unintended disparities that may exist in the criminal justice process”, the Committee asks the Government to provide detailed information about the steps it is currently taking or contemplating in that vein.

Racial discrimination in federal cocaine sentencing policy. In its previous direct request the Committee noted that the United States Sentencing Commission (USSC), in its May 2007 report to Congress, referred to the serious and continuing problem of racial disparities in sentencing for cocaine offences, stemming from penalty provisions adopted by Congress under the Anti-Drug Abuse Act of 1986. The Committee noted the Commission’s recommendations that Congress take steps, inter alia, to increase the mandatory minimum threshold quantities for crack cocaine offences in order to more narrowly focus the penalties on serious and major traffickers and to repeal the mandatory minimum penalty provision for simple possession of crack cocaine under the Anti-Drug Abuse Act of 1988. The Committee noted with interest that several bills had been introduced in Congress that target the disparity in penalties between crack and powder cocaine offences and the discriminatory impact of these penalties on sentence lengths. The Committee hoped that in its next report the Government would be in a position to report on the adoption of this legislation, and would otherwise take steps to implement the recommendations of the Commission, in order to ensure its law and practice were brought into conformity with the Convention, and to report on such action taken.

The Committee notes with interest the Government’s indications in its latest report that in April of 2009 the Attorney-General of the United States asked the Deputy Attorney-General to form and chair a working group to examine federal sentencing and corrections policy and was expected to focus on formulating a new federal cocaine policy that eliminates the current sentencing disparity between crack and power cocaine offences while taking into account case-specific aggravating factors such as violence, weapons, and recidivism; and that the group’s search for a workable solution to this issue was to include close cooperation with the Congress and the USCC, as well as making recommendations on federal sentencing legislation to the President. The Committee also notes with interest the reference by the Government that Congress was actively considering the issue of federal cocaine sentencing disparities; that a series of five bills on this issue introduced in the House of Representatives in the current congressional session; and that at two hearings held on the bills a representative of the Justice Department testified and expressed the Government’s view that Congress’ goal should be to eliminate completely the sentencing disparity between crack cocaine and powder cocaine offences. The Committee asks that in its next report the Government provide information on the progress of the activities of the working group as they relate to formulating a new federal cocaine sentencing policy and to making sentencing legislation recommendations, and on its cooperation on this issue with the Congress and the USCC, as well as information on that status of the pending bills it has referred to on this issue. The Committee hopes that the Government will be able to report on the adoption of new or amended legislation on federal cocaine sentencing policy.