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Executive Summary

  Shama Mir and Morton Sklar, editors, US NGO Report on CERD: AN INFORMAL WORKING GROUP OF NON-GOVERNMENTAL  CIVIL RIGHTS AND SOCIAL JUSTICE GROUPS, THE WORLD ORGANIZATION AGAINST TORTURE USA (September 2000)

 

 

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from Racial and Ethnic Discrimination in the United States, The Status of Compliance by the U.S. Government with the International Convention on the Elimination of Racial Discrimination Compiled By THE WORLD ORGANIZATION AGAINST TORTURE USA

 

On September 11, 2000, nearly five years overdue, the United States Government plans to submit its initial report to the United Nations on U.S. compliance under the Convention on the Elimination of Racial Discrimination (CERD).    In anticipation of the Government’s report, an informal working group of domestic civil rights and social justice organizations has prepared its own analysis of U.S. compliance under CERD, and the status of racism in this country, in such critical areas as the application of the death penalty, police brutality, the impact of the criminal justice system on youth, the treatment of Native Americans, the dismantling of affirmative action, and the problem of hate crimes.  This Executive Summary provides a brief overview of the findings contained in each of the main subject areas covered by the NGO report, so that a useful comparison and more informed analysis can be made of the U.S. Government’s submission.  A more specific response to the content of the Government’s report will be provided upon its planned release to the public and to our member groups on September 11, and a more complete analysis will be provided on October 17, 2000, the official release date of the NGO “shadow” report, at a symposium to be held at the Ford Foundation in New York City.

This report has special significance for three reasons.First, it represents the first comprehensive analysis of the status of racial and ethnic discrimination in the U.S. since the days of the Civil Rights Movement in the 1969, when the Kerner Commission issued its report on a “racially divided” nation.Given the fact that race relations continue to produce some of the most important and compelling social and economic issues of our time, the issuance of a report dealing comprehensively with the substantive issues associated with racism in this country is long overdue.

Since 1969, a number of reports have been issued dealing with specific issue areas, with a particular focus on police brutality and the racial impacts of the death penalty.But the only other attempt to produce a general observations of continuing manifestations of racial and ethnic bias took place in the context of President Clinton’s “Initiative on Race” that produced a set of public hearings and some general recommendations two years ago.While well intentioned, that effort did not produce the type of effective, detailed analysis of racial discrimination that was needed.The President planned to release acomprehensive report based on the results of his Initiative on Race, but it never was issued.Only one aspect of the report saw the light of day -- the idea of issuing an Executive Order dealing with the problem of racial profiling practices by law enforcement agencies.

In view of the importance of the issue of racial and ethnic discrimination to this country, and the urgency of problems associated with the racial divisions that we face, there is an extreme need for comprehensive, well documented analyses of the various subject areas where racism manifests itself.We need to have the facts before us, so that a more rational dialogue can take place, and more effective efforts can be made to remedy existing deficiencies.

Second, this report, and the joint effort by a number of domestic civil rights and social justice groups that produced it, represent an important new initiative in this country to relate international human rights standards to domestic issues.For many years, the U.S. has taken a leadership role in bringing international attention to major human rights abuses taking place all around the world.On September 6th, pursuant to a Congressional mandate, the U.S. Department of State issued its second annual report on religious persecution worldwide.Each year, the State Department issues its Country Reports on Human Rights, assessing human rights compliance by every government.But there have been increasing demands, especially by developing countries, that while the U.S. must continue to focus attention on human rights violations abroad, we need to do more to recognize and address situations of human rights non-compliance in our own country.This report takes one important step in this direction.It also indicates that civil rights and social justice groups in this country are beginning to recognize the importance of using international human rights standards and mechanisms to address, and focus international attention upon, domestic compliance needs.Attention from the United Nations and Organization of American States human rights monitoring agencies, by itself, will not solve our domestic problems.But it can provide one more pressure point, along with other domestic initiatives, to bring attention to the problems that need to be addressed.

Third, this compliance report under CERD is part of a larger international effort that is taking place this year and next to focus attention on the issue of racism, and problems associated with minority rights, as part of the United Nations’ World Conference on Racism, to be held at the end of August, 2001 in South Africa.A number of preparatory meetings will be taking place throughout the rest of this year and early next where plans for the World Conference on Racism will be discussed.This report on U.S. compliance with the Convention on the Elimination of Racial Discrimination, and the issues of racism in the U.S. that it raises, deserve to play a major part in the World Conference and its preparatory meetings.Many nations attending the World Conference will be giving scrutiny to U.S. racial and ethnic discrimination issues, as well as focusing attention on broader problems and needs associated with minority rights on a world-wide basis.Hopefully, this report will help produce the type of national dialogue that will help to generate some useful responses to the concerns regarding racism in the U.S. that undoubtedly will be raised in the World Conference forum.

Key Findings

A few of the key findings from the individual subject area sections of the report deserve to be highlighted, in anticipation of the treatment they are likely to receive in the U.S. Government’s CERD submission.Although the government has not given the NGO community access to the content of its report prior to its September 11 release date, we have had a number of meetings with government officials to discuss the report, and have been given a general idea of the way that some critical issues will be addressed.While a more complete and responsive analysis of the Government’s report can not take place until it is officially released, some essential points need to be raised:

1.Responsibility of the U.S. Government for State and Local Policies and Practices. In past reports to United Nations human rights monitoring agencies the U.S. government often has invoked the situation of federalism, and the jurisdictional authority of state and local governments over particular subjects, as a reason why they have not acted more forcefully to prevent violations.CERD makes very clear that even in situations where local governments have primary jurisdiction, the federal government has the overall responsibility for assuring that the standard of nondiscrimination is properly observed on a national basis.Federalism can not be invoked as a reason for federal government inaction.

2.The Death Penalty.Strong and uncontested statistical evidence, including a report by Congress’ own General Accounting Office, indicates that race and ethnicity unfortunately continue to play a major role in the imposition of the death penalty.Even more confounding, U.S. policy, affirmed by the Supreme Court, permits the execution of juvenile offenders who are 16 to 18 year of age, in direct violation of the prohibition against execution of juvenile offenders in several international human rights instruments, including the International Covenant on Civil and Political Rights.The disparate racial impacts of the death penalty tie these problems to the requirements of CERD.Conrad Harper, the former Legal Advisor of the State Department, appearing before the Human Rights Committee of the U.N. in 1995, tried to justify U.S. continuation of the juvenile death penalty as an expression of “democratic governance.”The popular desire to “get tough on crime,” and the passage of increasingly harsh and more extensive death penalty laws by state governments and by the U.S. Congress, can not be used as a basis for excusing violations of the prohibition against the juvenile death penalty in human rights treaties.

4.Juvenile Justice.Youth of color are heavily over-represented in terms of arrests, being charged with serious crimes, being referred to the adult courts and kept in adult prisons, and length of sentences, even when compared to other juveniles committing comparable offenses, and in every offense category.These disproportionate impacts are being accentuated by increasing use of“get tough” enforcement policies that force more juveniles of color into the adult courts and prisons.

4.Criminal Justice.Racial profiling targets people of color for harassment and arrest, and is part of a larger pattern and practice in law enforcement that results in minorities being subjected to arrest, prosecution and incarceration on a disproportionate basis as a result of their race and ethnicity, especially as regards treatment of drug offenders.

5.Infant Mortality.African American and Native American communities continue to have the highest infant mortality rates, with the disparities in mortality rates increasing as a result of discrimination in the provision of a wide range of services, including medical care, housing, education and employment opportunities.

6.Affirmative Action.CERD mandates that “positive steps” be taken to overcome the consequences of past discrimination and assure equal enjoyment of fundamental rights.Despite this requirement, particularly at the state level, the U.S. has been taking the reverse course, reducing or ending previous commitments to end the effects of past discrimination through affirmative action efforts, especially in the areas of education and employment. 

7.Environmental Racism.Increasing attention is being given to the discriminatory impacts of policies that result in the disproportionate location of waste treatment and other industrial facilities in communities of color, with adverse effects on the health and well-being of their residents, particularly infants and pregnant women.

8.Hate Crimes.Crimes tied to discriminatory motivations are increasing substantially, but the U.S. government has not taken sufficient action to prevent and prosecute these violations, including the failure to fulfill the Congressional mandate to collect and publish data on hate crime offenses on a regular basis.

9.Native American Rights.Special mention must be made of the role that Native American rights need to play in the consideration of racial and ethnic discrimination issues in this country in the context of CERD.Discussions about racism in the U.S. too often overlook the fact that our treatment of Native American people and nations needs to be considered an essential part of how we deal with racial and ethnic discrimination concerns.As indicated in our report (see Native American section), indigenous rights are covered by CERD’s requirements, and there are a number of manifestations of discrimination in the way that the federal government has been dealing with native peoples that deserve attention and improvement, many of them tied to the long-standing legal principle that the federal government has “plenary jurisdiction” over all aspects of Native American affairs. 

 
 
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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
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