Periodic report of the united states of america to the united nations committee on the elimination of racial discrimination

A. Equal treatment before tribunals and other organs administering justice

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A. Equal treatment before tribunals and other organs administering justice.

59. Independent and Effective Scrutiny of Claims. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution guarantees the right to equal treatment before organs administering justice in the United States. At all levels, claims of discrimination based on race, color or national or ethnic origin, including claims made against officials, are investigated by independent authorities and are subject to independent and effective scrutiny by courts and/or administrative tribunals established to hear such claims.

60. The Sixth Amendment to the U.S. Constitution provides for the right to counsel in federal criminal prosecutions. In 2013, we commemorate the 50th anniversary of the landmark U.S. Supreme Court decision, Gideon v. Wainwright, which extended the right to counsel at government expense to individuals who cannot afford it for criminal prosecutions in state court. Over the years in a series of decisions since Gideon, the Supreme Court has recognized that the Sixth Amendment right to counsel applies in misdemeanor cases and in juvenile delinquency proceedings. By law, counsel for indigent defendants is provided without discrimination based on race, color, ethnicity, and other factors. Federal, state, and local courts use a variety of methods to deliver indigent criminal defense services, including public defender programs, assigned counsel programs, and contract attorneys.

61. Although there is no right to counsel at government expense for civil matters, limited free civil legal assistance exists across the country, primarily through nonprofit legal aid programs, such as those funded by the Legal Services Corporation (LSC), and pro bono initiatives led by the private bar. Established by Congress in 1974 as an independent nonprofit corporation, LSC is the single largest funder of civil legal aid for low-income Americans. Its 134 grantees provide free legal assistance through more than 900 offices across the country and in U.S. territories. To leverage scarce resources, LSC encourages partnering with other funders of civil legal aid, including state and local governments, Interest on Lawyer’s Trust Accounts (IOLTAs), state access to justice commissions (established in approximately half of the states), the private bar, philanthropic foundations, and businesses.

62. Regarding paragraph 22 of the Committee’s Concluding Observations, the United States faces challenges in both its provision of legal representation to indigent criminal defendants and its provision of free and affordable civil legal services to the poor and middle class. We recognize that these challenges are felt acutely by members of racial and ethnic minorities.

63. To address these issues, DOJ established the Access to Justice Initiative (ATJ) in March 2010. ATJ’s mission is to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status. ATJ has worked to expand research and funding to improve the delivery of indigent defense services. In 2012, DOJ’s Office of Justice Programs awarded nearly $3 million in grants for this purpose and has committed to approximately $2 million additional in 2013. ATJ has also worked to strengthen defender services in tribal courts and, in partnership with the BIA, has launched the Tribal Court Trial Advocacy Training Program, which provides free trainings to public defenders, prosecutors, and judges who work in tribal courts.

64. To strengthen civil legal services, ATJ is working with other federal agencies to determine whether existing federal safety-net grant programs could perform more successfully by incorporating legal services. Specifically, ATJ staff has established partnerships with agencies working to promote access to health and housing, education and employment, and family stability and community well-being, to remove unintended barriers that prevent legal aid providers from participating as grantees or sub-grantees. ATJ also supports expanded civil legal research through collaboration with legal scholars and the American Bar Foundation. ATJ is providing technical assistance to more than a dozen states considering creation of new access to justice commissions, which generally support civil legal services at the state level. Responding to a challenge from ATJ, the Conference of Chief Justices unanimously adopted a resolution in 2010 urging the approximately two dozen states without active commissions to establish them, ATJ staff has also worked with the American Bar Association (ABA) Resource Center for Access to Justice Initiatives, and the Public Welfare Foundation to develop a national strategy for establishing and strengthening commissions, and ATJ staff now serves on a new national ABA Access to Justice Commission Expansion Project Advisory Committee.

65. With regard to prevention of racial discrimination in the criminal justice system, the United States acts to assess and address the indicators of racial discrimination; eliminate laws that discriminate; develop training and other programs to foster dialogue and promote tolerance; and ensure equal access to law and justice at all stages of the complaint and hearing process. While laws and systems are in place to ensure equality of access to and treatment in the criminal justice system, the United States recognizes that racial and ethnic disparities continue to exist. Statistics relating to the crime rates of persons belonging to some minority groups, treatment of minorities in some cases by law enforcement personnel, and the proportion of minority persons in the justice and prison systems indicate the need for further understanding of the issues and for continued vigilance to make further progress in pursuing the goal of equality.

66. With regard to paragraph 20 of the Committee’s Concluding Observations, a number of steps have been taken in recent years to address racial disparities in the administration and functioning of the criminal justice system. The Fair Sentencing Act, enacted in August 2010, reduced the disparity between more lenient sentences for powder cocaine charges and more severe sentences for crack cocaine charges, which are more frequently brought against minorities. Based on a request by the Attorney General, the Sentencing Commission voted to apply retroactively the guideline amendment implementing the Fair Sentencing Act. As of December 2012, 6,626 federal crack offenders’ sentences had been reduced as a result of retroactive application of the Fair Sentencing Act. Of these, 93.5% were Black/African American or Hispanic/Latino. DOJ also intends to conduct further statistical analysis and issue annual reports on sentencing disparities in the criminal justice system, and is working on other ways to implement increased system-wide monitoring steps. DOJ has also pledged to work with the Sentencing Commission on reform of mandatory minimum sentencing statutes and to implement the recommendations set forth in the Commission’s 2011 report to Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System. Finally, at the state and local level, many law enforcement authorities are implementing innovative solutions.  For example, the Vera Institute for Justice has launched a program in several municipalities to help prosecutors’ offices identify potential bias and to respond when bias is found.

67. Language access services are also critical in ensuring equal access to the judicial system for Limited English Proficient (LEP) persons. DOJ/CRT’s Courts Language Access Initiative combines enforcement tools with policy, technical assistance, and collaboration in an effort to ensure that LEP parties receive interpretation and language services in court proceedings and operations. Noting the Supreme Court holding that failure to take reasonable steps to ensure meaningful access for LEP persons is a form of national origin discrimination, Lau v. Nichols, 414 U.S. 563 (1974), and based on the government’s long commitment to that legal principle, in August 2010, the Assistant Attorney General for the Civil Rights Division sent a letter to all state chief justices and state court administrators concerning the need to bring state court language access policies and practices into compliance with Title VI of the Civil Rights Act of 1964 and the Omnibus Crime Control and Safe Streets Act of 1968. Among other things, the letter notes that language services must not be restricted to courtrooms; rather, meaningful access also extends to functions conducted in other court-managed offices, operations, and programs, such as intake or filing offices; cashiers; probation and parole offices; alternative dispute resolution programs; and detention facilities. Grant funds provided to the states by the Office of Justice Programs may be used to support language services for these purposes,

68. A recent study by the Sentencing Project, based on data from the DOJ Bureau of Justice Statistics (BJS), shows a shift in the racial makeup of U.S. prisons, suggesting that, while still stark, disparities in the prison population may be starting to diminish. Decline in incarceration rates was most striking for Black/African American women, dropping from six times the rate of White women in 2000 to 2.8 times in 2009 – a 30.7% drop. For Black/African American men, the rate decreased by 9.8%, from 7.7 times the rate of White men in 2000 to 6.4 in 2009. Incarceration rates for White men and women increased over the same period, rising 47.1% for White women and 8.5% for White men. By the end of the decade, Hispanic men were slightly less likely to be in prison, a drop of 2.2%, but Hispanic women were imprisoned more frequently, an increase of 23.3%,

69. With regard to paragraph 23 of the Committee’s Concluding Observations, the situation regarding capital punishment in the United States, including the applicable limitations, the heightened procedural protections, and the decline in use of the death penalty is described in Part I B, section 3 of the Common Core Document. Since submission of the Common Core Document in 2011, enactment of legislation abolishing the death penalty by the states of Connecticut and Maryland has reduced to 32 the number of states that authorize capital punishment, in addition to the federal government and the U.S. Military. Eighteen states and the District of Columbia do not authorize the death penalty.

70. With respect to the Committee’s comment concerning a potential moratorium on the death penalty, there is vigorous public debate in the United States on the death penalty.  However, the use of the death penalty is a decision left to democratically elected governments at the federal and state levels. The U.S. Constitution grants states broad powers to regulate their own general welfare, including enactment and enforcement of criminal laws, public safety, and correction, and a number of states currently prohibit imposition of the death penalty either by law or by executive decision of the Governor. Any further decisions concerning a moratorium would have to be made separately at the federal level and by each of the 32 states that retain the death penalty.

71. With regard to paragraph 21 of the Committee’s Concluding Observations, the U.S. Supreme Court has limited applicability of juvenile sentences of life without the possibility of parole (JLWOP) in two recent cases. In Graham v. Florida, 130 S. Ct. 2011 (2010), the Court ruled that application of JLWOP to juveniles who commit non-homicide offenses violates the Constitution’s prohibition against cruel and unusual punishment. In Miller v. Alabama, 132 S.Ct. 2455 (2012), the Court held that sentencing schemes that mandate LWOP for those under 18 at the time of their crimes also violated the prohibition against cruel and unusual punishment, because mandating life without parole for juveniles prevents those meting out punishment from considering a juvenile’s lessened culpability and greater capacity for change, and also runs afoul of the requirement for individualized sentencing for defendants facing the most serious penalties. States have responded to Miller in different ways, with courts in Louisiana and Illinois deciding that the ruling applies retroactively and courts in Michigan and Florida deciding that it does not. Iowa’s governor has commuted life sentences for 38 individuals serving JLWOP sentences, and North Carolina and Pennsylvania have enacted legislative fixes. DOJ has provided to federal Public Defenders a list of all potentially affected persons in the federal system and is also considering possible federal legislation.

72. Like all criminal defendants in the United States, juveniles charged with homicide offenses are afforded extensive due process and other protections throughout the trial and sentencing process and are provided the ability to appeal their convictions and sentences to the fullest extent afforded by law.  While the considerations vary from state to state, JLWOP sentences are generally imposed only after a judge determines, based upon numerous factors such as the juvenile's age, personal circumstances and background, the type and seriousness of the offense, the juvenile's role in the crime, and the juvenile's prior record/past treatment records, that the juvenile can be tried as an adult.  A small group of states and the District of Columbia have prohibited JLWOP sentences for all juvenile offenders, and state courts in some jurisdictions have also reduced sentences.    

73. Through its enforcement of the Civil Rights of Institutionalized Persons Act and the Violent Crime Control and Law Enforcement Act of 1994, DOJ vigorously protects the rights of juveniles who are incarcerated in facilities run by or for states, including those serving life sentences without parole. The 1974 Juvenile Justice and Delinquency Prevention Act is designed to ensure that youth are not treated merely as “little adults,” and that they receive necessary and appropriate rehabilitative services in the least restrictive environment consistent with public safety. The Act created an office within DOJ dedicated to supporting federal, state, and local efforts to prevent juvenile crime, imprisonment in the juvenile justice system, and addressing the needs of juvenile crime victims. This office, the Office of Juvenile Justice and Delinquency Prevention, provides funding to states for system improvement and research to identify optimal prevention and intervention strategies for youth in the juvenile justice system or at risk of entering it. In addition to its traditional work in this area, DOJ/CRT is using authority under a section of the Violent Crime Control and Law Enforcement Act of 1994 to address civil rights violations that occur early in the juvenile justice process. Under this law, DOJ can determine whether youths’ civil rights are being violated not only in detention facilities, but in juvenile arrests, juvenile courts, and juvenile probation systems as well. During the last four years, DOJ has used this authority to investigate the conduct of police in arresting children for school-based offenses, and to examine whether juvenile courts and probation systems comply with due process rights, the constitutional guarantee of equal protection, and federal laws prohibiting racial discrimination.

74. For example, under this authority, and based on an extensive investigation, including analysis of over 50,000 youth case files, DOJ/CRT found in 2012 that the juvenile court in Shelby County, Tennessee systemically violated the due process rights of all children who appear for delinquency proceedings, as well as the equal protection rights of African American children. CRT is working with the juvenile court to ensure wholesale reform. Using its authority to protect youths confined in juvenile detention facilities run by state or local governments, CRT also launched an investigation in Meridian, Mississippi that found a “school-to-prison pipeline” in which the rights of children were repeatedly and routinely violated. Children were systematically incarcerated for allegedly committing minor offenses, including school disciplinary infractions, and punished disproportionately without due process of law; the students most affected were Black/African American children and children with disabilities. When the local and state governments administering juvenile justice failed to enter into meaningful settlement negotiations, CRT filed a lawsuit to vindicate the children’s rights. While the juvenile justice lawsuit is still pending, CRT reached a comprehensive settlement in a related federal lawsuit against the Meridian Public Schools to prevent and address racial discrimination in the school district’s discipline practices. Under the settlement, the district will limit the use of discipline measures that remove students from the classroom, such as suspension; provide training to school personnel on non-discrimination and classroom management; request law enforcement assistance only when necessary to protect safety; and collect and analyze data on discipline referrals and consequences to identify and address racial disparities.

75. Non-Discrimination in Terrorism Measures and Racial Profiling. In its fight against terrorism, the United States does not unlawfully discriminate against individuals based on race, color or national or ethnic origin. U.S. anti-terrorism laws, which proscribe knowing or intentional participation in, or provision of material support to, violent unlawful conduct or formally designated Foreign Terrorist Organizations, do not discriminate on grounds of race, color, or national or ethnic origin. In the aftermath of 9/11, the United States has stepped up its training of law enforcement officers with a view to combating prejudice that may lead to violence, making one of the focus areas for such training the increased bias against Arab Americans and others. The United States seeks to ensure that its laws and practices protect innocent people from violence, while at the same time living up to our commitment of fair treatment.

76. With regard to paragraph 24 of the Committee’s Concluding Observations concerning measures to combat terrorism, the United States is committed to ensuring fairness before tribunals and other organs administering justice, including that all persons appearing before such organs are not discriminated against on grounds of race, color, or national or ethnic origin.

77. With respect to enemy alien belligerents, the United States provided updated information relating to the Committee’s concerns in the 2011 U.S. ICCPR Report, in particular in the discussion regarding habeas corpus, the operation of military commissions, and other proceedings contained in paragraphs 569-582. In brief, the United States has worked to ensure proper treatment of detainees at Guantanamo Bay, Cuba. On January 22, 2009, President Obama issued an Executive Order, entitled “Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities.” That order requires that detention at Guantanamo conform to all applicable laws governing conditions of confinement, including Common Article 3 of the Geneva Conventions, see E.O. 13492, sec. 6. The Order also directed the Secretary of Defense to review the conditions of detention at Guantanamo. The resulting review by Admiral Walsh found that those conditions comply with, and often exceed, the requirements of Common Article 3. Moreover, each detainee held by the United States in military detention at Guantanamo Bay is entitled to petition the federal district courts for habeas corpus review of the lawfulness of his detention. Most Guantanamo detainees have availed themselves of this right, and the district and appellate courts have completed review of approximately 50 cases to date. With respect to military commissions, the Military Commissions Act of 2009 made many significant changes, including: prohibiting the admission at trial of statements obtained by use of torture or cruel, inhuman, or degrading treatment, except against a person accused of torture or such treatment as evidence that the statement was made; strengthening the restrictions on admission of hearsay evidence; stipulating that an accused in a capital case be provided with counsel learned in applicable law relating to capital cases; providing the accused with greater latitude in selecting his or her own military defense counsel; enhancing the accused’s right to discovery; and establishing new procedures for handling classified information. Finally, regarding the Committee’s concerns about non-refoulement to torture, as the United States explained in the 2011 U.S. ICCPR Report, beginning at paragraph 553, consistent with firm U.S. policy, the United States will not transfer any person to a country where it determines that it is more likely than not that the person will be tortured.

78. With respect to the Committee’s concerns about the rights of noncitizens and equal treatment in the judicial system, as a matter of U.S. law, aliens within the United States, regardless of their immigration status, enjoy substantial protections under the U.S. Constitution and other domestic laws. Both DHS and DOJ have offices responsible for civil rights and civil liberties that help shape and implement policy, reach out to communities, and investigate and resolve complaints. For Fiscal Year 2012, the DHS Office for Civil Rights and Civil Liberties (CRCL) opened 256 new complaints (compared to 298 in FY 2011) and closed 281 complaints (compared to 219 in FY 2011) involving various DHS components such as ICE, U.S. Customs and Border Protection (CBP), the Transportation Security Administration (TSA), U.S. Citizenship and Immigration Services (USCIS), and others. A number of the closed complaints resulted in policy recommendations related to the protection of individuals’ civil rights. Of the 256 new complaints, 26 involved abuse of authority, discrimination, or profiling.

79. DHS/CRCL also runs the CRCL Institute, which provides classroom and on-line training for DHS and other agencies in civil rights protections. In addition, DHS/CRCL, through its Community Engagement Section, engages in extensive outreach to the public and non-governmental organizations, including convening and participating in regular roundtables with leaders from American Arab, Muslim, Sikh, Somali, Latino, South and Pacific Asian communities, among others, to discuss issues such as disaster preparedness, naturalization wait times, TSA airport screening, outreach to new immigrant communities, searches of electronic devices, and allegations of improper conduct toward Arab, Muslim, Sikh, South Asian and Somali American travelers at U.S. ports of entry. CRCL has established an Incident Community Coordination Team for communication with Arab, Muslim, Sikh, South Asian, and Somali American community leaders in the immediate aftermath of an incident.

80. With regard to paragraph 14 of the Committee’s Concluding Observations concerning racial profiling, the United States recognizes that racial or ethnic profiling is not effective law enforcement practice and is not consistent with our commitment to fairness in our justice system.11 For many years, concerns about racial profiling arose mainly in the context of motor vehicle or street stops related to the enforcement of drug or immigration laws. More recently, and especially since 9/11, the debate has also included examination of law enforcement conduct in the effort to combat terrorism.

81. In addition to the U.S. Constitution, several federal statutes and regulations impose limits on the use of race or ethnicity by law enforcement, and the Obama Administration has vigorously relied on these tools to respond to such unlawful practices. These include Title VI of the Civil Rights Act of 1964 (prohibiting discrimination in all federally assisted programs or activities), and 42 U.S.C. 14141 (allowing suits against police departments for injunctive relief if they are engaging in a pattern or practice of unlawful conduct). Between 2009 and 2012, DOJ/CRT opened 15 investigations of police departments and currently is pursuing more than two dozen open investigations – the largest number at any one time in history, and involving larger police departments than ever before. In 2012 alone, CRT entered into far reaching, enforceable agreements with six jurisdictions to address serious policing challenges, the most agreements reached in a single year. If a violation is determined to exist, DOJ works with the law enforcement agency to revise policies and procedures and to provide training to ensure the constitutionality of police practices. Recent cases have included: the investigation of the New Orleans Police Department described above under Article 5; an investigation of the Seattle Police Department that found an unlawful pattern or practice of excessive force and also raised concerns about discriminatory policing, leading to a court-approved settlement in September of 2012; and an investigation of the East Haven, Connecticut Police Department that found a pattern or practice of discriminatory policing against Hispanics/Latinos, targeting them for discriminatory traffic enforcement, leading to a settlement agreement providing for comprehensive reforms. The East Haven Police Department announced that the Department had hired its first Latino officer – a highly qualified bilingual woman, who will assist with building ties to the immigrant community.

82. DOJ/CRT strongly prefers to work in a cooperative fashion with local governments and police departments to address unconstitutional policing, and in almost every case, it is able to work in that manner to spur reform. DOJ also works with organizations that develop national standards for law enforcement, such as the International Association of Chiefs of Police. However, CRT does not hesitate to use litigation to combat racial profiling or other unlawful policing when cooperation proves elusive. For example, after lack of cooperation by the Maricopa County Sheriff’s Office in an investigation of potential anti-Latino bias in policing and jail practices, DOJ filed a wide-ranging lawsuit. In December 2012, a federal court denied the County’s motion to dismiss the case, and the litigation is continuing in 2013. In addition, in a case brought by DOJ, the Supreme Court struck down on preemption grounds three provisions of Arizona’s immigration law, S.B. 1070 – section 3, which made it a crime to fail to carry valid immigration papers; section 5(c), which criminalized applying for or holding a job without proper immigration papers; and section 6, which was found to create an obstacle to federal law by authorizing state and local officers to make warrantless arrests of certain aliens, United States v. Arizona, 132 S. Ct. 2492 (2012). The Court also emphasized that there are serious constitutional questions regarding Section 2 of the Arizona law, which requires law enforcement officials to verify the immigration status of any person lawfully stopped or detained when they have reason to suspect that the person is here unlawfully. The Attorney General issued a statement assuring communities that DOJ will continue vigorously to enforce federal prohibitions against racial and ethnic discrimination, and DOJ is closely monitoring the impact of S.B. 1070 to ensure compliance with federal immigration law and applicable civil rights laws, including ensuring that law enforcement agencies and others do not implement the law in a manner that has the purpose or effect of discriminating against the Latino or any other community. See

83. DHS acts to ensure that its programs and activities are free of invidious racial or ethnic profiling.  Certain immigration enforcement programs, including some of those in which DHS cooperates with state and local police to enforce federal immigration law, also contain clear prohibitions against racial and ethnic profiling.  Under the 287(g) program, for example, certain specially trained state and local law enforcement officers are authorized to enforce federal immigration law in jails and prisons. These officers receive specific training to ensure that they do not engage in racial profiling.  Individuals alleging racial or ethnic profiling may file complaints with DHS/CRCL and ICE’s Office of Professional Responsibility.  DHS/CRCL is currently reviewing complaints alleging racial or ethnic profiling with regard to agency language access requirements and other issues in the ICE 287(g) program.

84. DHS continues to enhance its screening methodology; DHS security measures are tailored to specific intelligence about potential threats. These measures, which are part of a dynamic, threat-based process covering all passengers traveling to the United States, do not rely solely on a traveler’s country of citizenship to determine the level of screening. Specific screening rules are reviewed quarterly by DHS/CRCL, the DHS Privacy Office, and the DHS Office of the General Counsel.

85. In addition, DHS/CRCL has created a special training program designed to increase the cultural competency of federal, state, local, and tribal law enforcement authorities. The training aims to increase communication, build trust, and encourage interactive dialogue among law enforcement officers and the diverse American communities in which they work, including Arab, Muslim, South Asian, and Somali American communities, and is particularly designed to equip law enforcement personnel with enhanced competency in communicating with such communities. DOJ, the FBI, and the Coast Guard have also engaged in training for this purpose.

86. Recognizing public concerns related to the National Security Entry-Exit Registration System (NSEERS), DHS conducted several reviews of the program involving substantial consultations with the public and civil society. The reviews resulted initially in narrowing of the program’s application and elimination of the domestic call-in portion of the program. As a result of further review and the development of new, enhanced security measures, in April 2011, DHS announced the official ending of the NSEERS registration process, In April 2012, DHS issued internal guidance on the treatment of individuals who were previously subject to, but failed to comply with, NSEERS requirements. It clarified that noncompliance with those requirements, in and of itself, is not a sufficient basis for negative immigration consequences. Rather, negative immigration consequences may apply only where DHS personnel have determined, based on the totality of the evidence, that the individual’s NSEERS violation was willful.

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