Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), received with the Government’s report.

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 in its report 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, in the unlikely event that an individual were to be convicted, North Carolina law would not require the judge to order the illegal striker to perform work in violation of the Convention. Rather, the judge would have the discretion whether to order the convicted individual to perform work and can choose to impose only a fine.

The Committee further notes the comments of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) according to which states are obliged under the Convention to abolish all penalties involving any form of compulsory labour which may be imposed as a punishment for having participated in strikes, and this obligation extends to both legislation and practice. As sections 95–98.1 and 95–99 might have a chilling effect on public sector workers who might otherwise decide to engage in strikes, these provisions should be repealed or amended.

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, 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) of the Convention. 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 over representation 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 the Government’s statement that no legislative action was taken on either the Justice Integrity Act of 2011 which sought to address any unwarranted racial and ethnic disparities in the criminal process, or 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, but that other bills, which relate to the issues raised by the Committee, were pending before Congress. It further noted initiatives undertaken by several states.

The Committee notes the Government’s statement in its report that it remains committed to ensuring that the criminal laws, and criminal law enforcement, do not discriminate on the basis of race. The Committee also notes the Government’s statement that both the Justice Integrity Act of 2011 and the Byrne/JAG Programme Accountability Act were reintroduced in the House of Representatives in January 2014, but neither bill was referred out of subcommittee. The Government indicates 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. As of 2014, 34 states participated in the Program.

With regard to practical measures and policy initiatives, the Committee notes the Government’s indication that in August 2013, the US Department of Justice (DOJ) issued a report entitled “Smart on Crime: Reforming the Criminal Justice System for the 21st Century”, which included measures to reform sentencing to eliminate unfair disparities and reduce overburdened prisons. DOJ also announced a change in its charging policies so that certain persons who have committed low-level, nonviolent drug offenses and who have no significant ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose high mandatory minimum sentences. The Committee also notes the information in the Government’s report that in April 2014, DOJ’s Deputy Attorney General announced a Clemency Initiative to encourage low-level, nonviolent federal inmates who would not pose a threat to public safety if released, to apply to the President for commutation of sentence. The Initiative is intended to identify appropriate candidates for clemency by reference to certain specified criteria and enable DOJ to review the requests efficiently and make timely and effective recommendations for action to the President. Also in 2014, DOJ encouraged the formation of Clemency Project 2014, a consortium of criminal justice organizations that recruits, trains, and advises attorneys willing to provide pro bono assistance to inmates petitioning for commutation under the Clemency Initiative. Additionally, when systemic problems of discriminatory policing emerge in a police department or sheriff’s office, or officers abuse their power, DOJ uses its statutory authority to investigate and bring civil actions to change discriminatory policing policies. In recent years, DOJ has undertaken several investigations of discriminatory policing and pursued effective remedies in several jurisdictions. Lastly, the Committee notes the Government’s information on various initiatives being taken by several States to reduce racial bias within the criminal justice system. For instance, in April 2016, the MacArthur Foundation announced that it is awarding to 11 jurisdictions grants of between $1.5 million and $3.5 million over two years to fund state and local government projects, programs and reforms aimed at reducing their jail populations and addressing racial and ethnic disparities in their justice systems. The 11 jurisdictions include Charleston County, South Carolina; Harris County, Texas; Lucas County, Ohio; Milwaukee County, Wisconsin; New Orleans, Louisiana; New York City, New York; Philadelphia, Pennsylvania; Pima County, Arizona; Spokane County, Washington; the State of Connecticut; and St. Louis County, Missouri. Each of the 11 jurisdictions will implement plans tailored to their local context comprised of a variety of local solutions, such as alternatives to arrest and incarceration, implicit bias training for law enforcement and other system actors, and community-based treatment programs.

The Committee takes due note of the initiatives taken at the federal and state levels. However, the Committee notes that the Committee on the Elimination of Racial Discrimination (CERD), in its concluding observations of 25 September 2014, expressed concern that members of racial and ethnic minorities, particularly African Americans, continue to be disproportionately arrested, incarcerated and subjected to harsher sentences and that the over-representation 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 (CERD/C/USA/CO/7-9, paragraph 20).

While welcoming the various initiatives taken by the Government to address racial disparities in the criminal justice system, such as the launch of the “Smart on Crime” initiative in August 2013 and the Clemency Initiative and Project in 2014, the Committee strongly encourages the Government to strengthen 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 ensure the adoption of 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.