Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Article 1(e) of the Convention. 1. Racial discrimination in the exaction of compulsory prison labour. In its previous comments, the Committee noted the information from the US Department of Justice showing the significant overrepresentation of African-Americans and Latinos/Hispanics within US prison populations. It also noted that a prison sentence in the United States normally involves an obligation to perform labour. Referring to its General Survey of 2007 on forced labour, the Committee recalled 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. In this regard, the Committee noted the Government’s statement that it was committed to working to root out any unwarranted and unintended disparities that may exist in the criminal justice process, and observed several measures taken by the Government at the federal and state levels. At the federal level, the Committee noted that the Justice Integrity Act of 2009 (S.495 and H.R. 1412) had been introduced in Congress in February 2009, which sought to increase public confidence in the justice system and address any unwarranted racial and ethnic disparities in the criminal process. It also noted measures taken in this regard in the states of Connecticut, Illinois, Iowa, Minnesota and Wisconsin. The Committee requested information on the application of the measures taken and expressed the hope that the Justice Integrity Act would soon be enacted.

The Committee notes the Government’s indication that although no legislative action was taken on the H.R. 1412 of 2009, the Justice Integrity Act was reintroduced in May 2011 (as H.R. 1771), and referred to the appropriate legislative committee. The Government indicates that this bill, similar to H.R. 1412 of 2009, would 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. This bill would also designate a US attorney in each of the selected districts to implement a plan for carrying out the pilot programme. The Government also indicates that several other relevant bills have been introduced to Congress, including H.R. 1913, the Byrne/JAG Programme Accountability Act, which would require states and local governments receiving certain federal law enforcement grants to implement policies and practices to identify and reduce racial and ethnic disparities in the criminal justice system. The Government also provides information on relevant initiatives undertaken in several states:

• – in Wisconsin, the Racial Disparities Oversight Commission, established by state executive order, conducted several trainings in 2010 for law enforcement and community officials on strategies to address racial disparities in incarceration and across the criminal justice system;
• – in Minnesota, the Disproportionate Minority Contact Act was passed in 2009, which provides that it is the policy of the state to identify and eliminate barriers to racial, ethnic and gender fairness within the criminal justice, juvenile justice, corrections and judicial systems;
• – in Oregon, the State Senate Bill 654 is pending in the state legislature, which would require the preparation of a racial impact statement similar to those currently required in Connecticut and Iowa, which take into consideration the potential racial or ethnic impact of any criminal justice legislation before it becomes law; and
• – in Illinois, the Illinois Disproportionate Justice Impact Study Commission began work in September 2009, and as a result, a bill (Senate Bill 2271) is pending in the legislature which would establish a racial and ethnic impact research task force.

The Committee takes due note of the initiatives undertaken in these four states. However, the Committee notes that the Committee on the Elimination of Racial Discrimination, in its concluding observations of 8 May 2008, expressed concern with regard to the persistent racial disparities in the criminal justice system of the country, including the disproportionate number of persons belonging to racial, ethnic and national minorities in the prison population, allegedly due to the harsher treatment that defendants belonging to these minorities, especially African-American persons, receive at various stages of criminal proceedings (CERD/C/USA/CO/6, paragraph 20). The Committee therefore requests the Government to take the necessary measures to ensure that racial discrimination at the sentencing and other stages of the criminal justice process do not result in the imposition of racially disproportionate prison sentences involving compulsory labour. In this regard, the Committee urges the Government to take measures to ensure the adoption of the Justice Integrity Act (H.R. 1771). It also encourages the Government to pursue and strengthen its efforts at the state level to implement policies and practices to identify and reduce racial and ethnic disparities in the criminal justice system to ensure that the punishment involving compulsory labour is not meted out more severely to certain racial and ethnic groups. It requests the Government to continue to provide information on measures taken in this regard, and on the results achieved.

2. Racial discrimination in federal cocaine sentencing policy. The Committee previously noted that the United States Sentencing Commission, 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. The Committee subsequently noted that the Attorney-General of the United States had asked the Deputy Attorney-General to form a working group to examine federal sentencing and corrections policy with regard to formulating a new federal cocaine policy that eliminates the current sentencing disparity between crack and powder cocaine offences, while taking into account case-specific aggravating factors such as violence, weapons and recidivism. The Committee further noted that Congress was actively considering the issue of federal cocaine sentencing disparities. The Committee expressed the hope that new or amended legislation on federal cocaine sentencing policy would be adopted.

The Committee notes with interest that, on 3 August 2010, the President signed into law the Fair Sentencing Act of 2010, which establishes new federal cocaine sentencing standards that significantly reduce the disparity between federal criminal penalties for crack cocaine and powder cocaine offences. These new sentencing standards reduce the disparity between the amount of crack cocaine and powder cocaine needed to trigger certain United States federal criminal penalties from a 100:1 weight ratio to an 18:1 weight ratio and eliminate the five-year mandatory minimum sentence for simple possession of crack cocaine. The Government indicates that to implement the Fair Sentencing Act, the US Sentencing Commission amended the federal Sentencing Guidelines, and voted to give retroactive effect to these changes. Moreover, the Government indicates that the Attorney-General issued a directive to all federal prosecutors stating that the Fair Sentencing Act requires the retroactive application of the Act’s new mandatory minimum sentencing provision to all sentencing that occurs on or after 3 August 2010, regardless of when the offence took place.