Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Article 1(d) of the Convention. Sanctions involving compulsory labour for participation in strikes. In its previous comments, the Committee noted that, pursuant to article 12, section 95-98.1, of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the State. Under section 95-99, any violation of the provisions of article 12 is declared to be a class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a class 1 misdemeanour may be sentenced to “community punishment” and, upon a second conviction, to “active punishment”, that is, imprisonment. In this regard, the Committee noted the information in the Compendium of Community Corrections Programs in North Carolina (published by the North Carolina Sentencing and Policy Advisory Commission) indicating that the imposition of community punishment may include assignment to the State’s Community Service Work Program, which requires the offender to work for free for public or non-profit agencies in an area that will benefit the greater community. The Committee also noted that article 3 (Labor of Prisoners), section 148-26, of Chapter 148 (State Prison System) states that it is the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them. In response, the Government indicated that the Committee’s observations had been forwarded to the authorities in North Carolina and that it had requested these authorities to provide information on any steps taken by the state government relating to these comments.

The Committee once again notes the Government’s indication that state court records do not reveal a single instance in which an individual has been convicted for engaging in an illegal public sector strike. The Government reiterates that, even if an individual were to be convicted, under North Carolina law a judge would have the discretion whether or not to order the convicted individual to perform work. Observing that it has been raising this issue for more than a decade, the Committee must once again recall that Article 1(d) of the Convention prohibits the use of any form of forced or compulsory labour as a punishment for having participated in strikes. Referring to the explanations contained in paragraph 315 of its 2012 General Survey on the fundamental Conventions concerning rights at work, the Committee recalls that, regardless of the legality of the strike action, any sanctions imposed should not be disproportionate to the seriousness of the violations committed, and that in both legislation and practice, no sanctions involving compulsory labour should be imposed for the mere fact of organizing or peacefully participating in strikes. The Committee therefore once again requests the Government to take the necessary measures to bring the North Carolina General Statutes into conformity with both the Convention and the indicated practice, in ensuring the repeal or amendment of sections 95-98.1 and 95-99, so as to ensure that penalties of compulsory labour (through the Community Service Work Program or during imprisonment) cannot be imposed for participation in a strike. The Committee hopes that in its next report the Government will be in a position to provide information on the progress achieved in this regard.

Article 1(e). 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. 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 is in violation 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. It noted measures taken by the Government at the federal level, including the introduction to Congress of the Justice Integrity Act, which sought to address any unwarranted racial and ethnic disparities in the criminal process, and 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. It further noted initiatives undertaken by several states. However, the Committee also noted that the Committee on the Elimination of Racial Discrimination, in its concluding observations of 8 May 2008, had expressed concern with regard to the persistent racial disparities in the criminal justice system, 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 notes the Government’s indication of its continuing commitment to ensuring that its criminal laws, and criminal law enforcement, do not discriminate on the basis of race, and that it has taken a number of measures as part of an ongoing and consistent action to comply with its obligations under the Convention. The Committee notes the Government’s statement that no legislative action was taken on either the Justice Integrity Act of 2011, or the Byrne/JAG Programme Accountability Act, but that other bills, which relate to the issues raised by the Committee are pending before Congress. The Government also indicates that it continues to implement the Juvenile Justice and Delinquency Preventions Act of 2002, which requires states participating in the US Department of Justice’s Formula Grants Program to undertake efforts designed to reduce the disproportionate number of juvenile members of minority groups who come into contact with the juvenile justice system. This programme involves determining whether there is disproportionality in a specific jurisdiction, assessing the mechanisms that contribute to this disparity, implementing delinquency prevention and systemic improvement measures, and monitoring this disparity. In 2011, 34 states participated in the Program. Moreover, the Committee notes the Government’s information on legislative and practical measures being taken to reduce racial disparities in incarceration in the States of Illinois, Minnesota, North Dakota, Oregon and Vermont.

The Committee notes the statement in the report of December 2012 available from the Bureau of Justice Statistics of the Department of Justice that “in 2011, blacks and Hispanics were imprisoned at higher rates than whites in all age groups for both male and female inmates”. Moreover, the report states that imprisonment rates indicate that about 0.5 per cent of all white males, more than 3 per cent of all black males, and 1.2 per cent of all Hispanic males were imprisoned in 2011, and that black males were imprisoned at rates (that ranged across age groups) of between five and seven times the rates of white males. The Committee therefore requests the Government to pursue its efforts 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 pursue its efforts to adopt federal legislation to address this issue. 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.