Racism and the Administration of Justice

Discrimination in the administration of justice whether in policing, criminal prosecutions, trials, sentencing, or imprisonmentcan cause extraordinary harm to individuals and society alike, and have lasting consequences for future generations. Members of racial, ethnic, and other minorities or vulnerable groups often face harassment, arbitrary detention, and abusive treatment by the law enforcement apparatus and disparate treatment by prosecutors and the courts.

Police disproportionately target members of marginalized groups for arrest in many countries. Members of these groups may also face disproportionate prosecutions, unfair trials, and disproportionately severe sentences on criminal charges. Humiliating treatment, beatings, sexual abuse, and shooting deaths of members of marginalized groups often contrast starkly with treatment accorded to others and members of these groups have little recourse to legal remedies to abuse.

Ostensibly race- or descent-neutral laws can have a disparate impact on vulnerable minoritiesor even majoritiesas a consequence of prosecutorial discretion or sentencing policies or the nature of the law itself. The resulting impact on particular descent-based groups may be vastly disproportionate to the actual involvement of members of these groups in the overall pattern of criminal activity.

Criminal penalties that are accompanied by temporary or permanent disenfranchisement further exclude members of groups already facing discriminatory treatment from participation in political life and accentuate their economic, social, and political marginalization

Discriminatory effect can be particularly devastating in the application of the death penalty, which Human Rights Watch opposes because of its inherent cruelty. Some basis for discrimination other than the underlying crime for which the penalty is ostensibly applied routinely enters into the determination of which persons are executed and which persons are allowed to live. The inherent fallibility of all criminal justice systems assures that even when full due process of law is respected innocent persons are sometimes executed. Because an execution is irreversible, such miscarriages of justice can never be corrected.

Discriminatory abuse within the framework of the administration of justice is not limited to measures enforcing criminal law. Police power may be used in the enforcement of administrative normssuch as restrictions on freedom of movement or residency or the right to educationthat discriminate in effect and often also in intent. The law enforcement apparatus may also act outside the law to uphold established social and economic hierarchies, denying particular groups their rights, enforcing their subordination to others, and even excluding them from particular occupations, educational opportunities, communities, or access to public resources. Political rights guaranteed in law may be denied vulnerable groups in practice through the misuse of executive or police power.

Those facing discrimination can also be denied equal protection by police and the courts when they stand up for their rights in disputes with other private citizens. Police may stand by as attacks are made upon members of marginalized groups, or deliberately delay their intervention. Criminal investigations into such crimes, if initiated, may be half-hearted. Police in many countries refuse even to register the complaints of members of marginalized groups distinguished by their race, ethnicity, or descent, while giving special treatment to those attacking them. Members of marginalized groups who are accused of crimes or subjected to generalized suspicion and intimidation are too often also treated with extreme brutality by law enforcement personnel. And police all too often acquiesce in racial attacks by others- participating directly in or condoning violent efforts to punish, repress or banish members of racial minorities who have incurred the wrath of those in power.

Discrimination in criminal justice and other areas of public policy is perhaps most pervasive and deep rooted where the heritage of slavery and legislated segregation remains a potent factorand when founded on caste. This sometimes embraces hidden forms of racism that permeate public and private practice across whole societiesand finds its clearest expression in the state's administration of justice.

Discrimination in law enforcement and the justice system can be a primary factor in preserving or promoting economic, social, and political inequities founded in broader discriminatory state and private practices. In a vicious cycle, racial or descent-based economic, social, and political marginalization generates discrimination in the action of the police and the judicial system, deepening social divisions and increasing that marginalization. When the police and the courts are the face of the state most constantly engaged with members of groups subjected to broader social discrimination, their abusive treatment compounds and confirms their subordinate status.

At the national or local level discrimination can arise from practices with racist intent, like racial profiling, in which an individual's presumed race is the determining factor in placing them under suspicion. The mechanisms of criminal justice can equally result in unjustified discriminatory effect where there is no clear racist intent. Discriminatory impact can be shown in patterns of police abuse, arbitrary arrest, incarceration, prosecution, and sentencing. The de facto denial of remedies to particular groups within a criminal justice system or the disparate effect of de jure disenfranchisement of members of a particular group may be evidence of unjustified racial discrimination regardless of the intent of lawmakers and public officials.

Discrimination in a criminal justice system may be deliberate, reflecting invidious bias. Or it may flow from ostensibly neutral decisions that nonetheless produce an unjustified racially disparate impact. Both types of racial discrimination contradict the principles of justice and equal protection of the laws that should be the bedrock of any criminal justice system - and both contravene the International Convention on the Elimination of All Forms of Racial Discrimination, CERD. States must take steps to identify and address the racist impact of any element of the criminal justice system.

CERD obliges states to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. This notwithstanding, early drafts of the World Conference program of action call for measures to address discrimination in the administration of justice only where discriminatory intent can be discerned. The World Conference should recommend measures to identify and to remedy the racist effect of law or practice even in the absence of racist intent.

Some Examples

Police target minorities as possible criminal suspects solely on the basis of their race or ethnicity.

• A 1998 study of police stop and search patterns in England and Wales by the British Government's Home Office found that Blacks were 7.5 times more likely to be stopped and searched than whites.¹

• In a two year period in the U.S. state of Maryland, blacks constituted 79.2 percent of the drivers stopped and searched by the police on Interstate 95, even though they constituted only 17.5 percent of the drivers who were violating traffic laws.²

• The war on drugs in the U.S. is waged overwhelmingly against black Americans. For example, although there are more white drug offenders than black in the United States, blacks constitute 62.7 percent of all drug offenders sent to state prison and black men are sent to prison on drug charges at 13.4 times the rate of white men.³

• Aboriginal people in Australia are 9.2 times more likely to be arrested, 23.7 times more likely to be imprisoned as an adult, and 48 times more likely to be imprisoned as juveniles than non-Aborigines.⁴

Race influences death penalty decisions.

• A study of the federal death penalty by the U.S. Department of Justice released in September, 2000 found 80 percent of federal defendants who faced capital charges were members of racial minorities, as were 74 percent of convicted defendants for whom prosecutors recommended the death penalty.⁵

• The death penalty is also more likely to be sought and imposed in the U.S. for killing a white person than a person of a different race: 82 percent of capital cases involve a white victim, although nationwide only 50% percent of homicide victims are white.⁶

Use of force by the police may vary by race of suspect. In Brazil, darker skinned people shot by the police are almost twice as likely to be killed than whites shot by the police: the lethality index (ratio of people killed to people wounded in intentional shootings) for black and brown skinned people shot in the favelas was 8.66, compared to a white lethality index of 4.63.⁷

Police ignore, condone, or encourage violence by private individuals directed against racial minorities:

• In June, 2000, police turned their backs and left a Dalit untouchable village in India's Bihar state as an upper caste mob entered it and slaughtered thirty-four lower-caste men, women and children.⁸

• In February, 2000 skinhead thugs shouting racist insults attacked five Roma in Nachod, in the Czech Republic; victims said police were among the attackers and did nothing to stop the assault or arrest the perpetrators.⁹

Enforcement of control of movement and residence often assumes ethnic or racial dimensions:

• The Russian propiska system of permits provides a pretext for the police harassment, arbitrary arrest, and extortion of people distinguished by their racial characteristics: in September 1999 Moscow police were given carte blanche in the wake of two bombing incidents there to carry out mass arrests of ethnic Chechens living in the city, taking more than twenty thousand Chechens to police stations.

Developments

The Committee on the Elimination of Racial Discrimination (CERD) has played a leading role in the promotion and protection of international human rights standards. General recommendations issued by CERD concerning articles of the Convention on the Elimination of All Forms of Racial Discrimination have provided essential interpretive guidance for measures to combat discrimination:

• CERD, in its General Recommendation XX (48), on article 5, 1996, observed that the deprivation of civil and political rights, as in felony disenfranchisement, must not discriminate either in purpose or in effect:

2. Whenever a State imposes a restriction upon one of the rights listed in article 5 of the Convention which applies ostensibly to all within its jurisdiction, it must ensure that neither in purpose nor effect is the restriction incompatible with article 1 of the Convention as an integral part of international human rights standards. To ascertain whether this is the case, the Committee is obliged to inquire further to make sure that any such restriction does not entail racial discrimination.¹⁰

• Reports to CERD by states parties to the convention have become increasingly frank and useful tools in the identification of continuing challenges of racial discrimination and related intolerance.

In its first report to the United Nations Committee on the Elimination of Racial Discrimination, submitted in September 2000, the United States acknowledged dramatically disparate incarceration rates for minorities, noted the many studies indicating that members of minority groups may be disproportionately subject to adverse treatment in the criminal justice process, and acknowledged concerns that racial minorities are more likely to be victims of police brutality.¹¹

• Consideration of country reports by CERD has assisted states parties to the convention and the human rights community to recognize and address particular forms of racial discrimination.

In its concluding observations, as it reviewed India's tenth to fourteenth periodic reports as a state party in 1996, and taking into account the prevalence of caste-violence and the lack of equal protection, CERD affirmed that "the situation of Scheduled Castes and Scheduled Tribes falls within the scope of" the convention.¹²

Recommendations

1. Data on the number and nature of racist, xenophobic, or related incidents or offenses or suspected bias crimes should be collected and published. (Drawing from the Plan of Action/Strasbourg, para. 12.)

• Investigations and reporting should cover individual cases, as well as situations which indicated a pattern or practice of racial discrimination. (Drawing from the Expert Seminar on Remedies, para. 52.)

• Data should be broken down to include the race, ethnicity, or descent as well as the gender of the persons reported harmed, with due regard for data protection and privacy guarantees.

• Data should be collected and published concerning the number of cases prosecuted, and the outcome of the prosecutions or the reasons for not prosecuting. (Drawn from Plan of Action/Strasbourg, para. 12.)

2. Governments should require police, courts, and prison authorities to gather, maintain, and publish statistical data that identifies the race, ethnicity, or descent as well as the gender of those involved in the criminal justice process, from persons stopped by the police to persons incarcerated.

• Such information should be collected in accordance with human rights principles and protected against abuse through data protection and privacy guarantees. (Drawn from the first Draft Plan of Action of the Conference Secretariat, para. 73).

• Such information should be used to identify and eliminate stereotyping or racial profiling by law enforcement officials. (Drawn from Plan of Action/Secretariat, para. 83.)

• Data showing the discriminatory effect of criminal justice policies and practices in the form of an unjustified disparate impact upon members of particular groups should trigger remedial action.

3. Governments should carefully review the performance of all institutions within the criminal justice system to identify patterns of discrimination and should undertake necessary restructuring and introduce corrective mechanisms to address discrimination that is found. (Drawn from Recommendations of the Expert Seminar on Remedies, para. 46.)

• Governments should design, implement and enforce effective programs to prevent, detect, and ensure accountability for incidents of police misconduct constituting discrimination based on racism or related intolerance, and to prosecute such police misconduct. (Drawn from Plan of Action/Secretariat, para. 83.)

• Public officials in the criminal justice system should be held accountable for discriminatory policies and practices. (Drawn from Plan of Action/Secretariat, para. 83, and Recommendations of the Expert Seminar on Remedies, para. 46.)

4. Civilian review boards or civilian ombudsman should be created to monitor conduct of police, including evidence of racial or related bias. (Drawing upon the recommendations of the Expert Seminar on Remedies, para. 22.)

5. Governments should provide prompt and effective remedies for victims of discrimination in law and in practice. (Drawing upon Plan of Action/Santiago, para 82).

• Procedures for the initiation of complaints should be simple and flexible and should be available to victims and, as appropriate, authorized public agencies or third parties. Easy accessibility to remedies should be provided especially for those likely to be victims of racial discrimination, for both citizens and non-citizens, for individuals as well as groups. (Expert Seminar on Remedies, para. 52.)

• All stages of the procedures should be expeditiously handled. (Expert Seminar on Remedies, para. 52.)

• Dissemination of information concerning the availability of remedies, including recourse procedures, should be widespread. (Expert Seminar on Remedies, para. 52.)

• Governments should assist victims to pursue remedies, where necessary through legal assistance and support, including where appropriate the help of an interpreter in civil and criminal cases. (Drawing upon Plan of Action/Santiago, para 82 and Expert Seminar on Remedies, para. 52.).

6. National, independent, specialized bodies should be created with competence to investigate allegations of racial discrimination and related intolerance, without prejudice to judicial remedies. (Drawing upon Plan of Action/Santiago, para 82 and the Plan of Action/Strasbourg, para. 8.)

7. Governments should introduce training for all those involved in the administration of justiceincluding police and other law enforcement officers, the judiciary, prosecutors, and personnel of the prison systemto combat racial discrimination, xenophobia and related intolerance. (Drawn from the first Draft Plan of Action of the Conference Secretariat, paras. 8 and 9 and the Declaration of the Strasbourg Meeting, para. 35; the Plan of Action/Santiago, para. 157; and recommendations of the Expert Seminar on Remedies, para. 46.)

• Training should cover international human rights standards set out in the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. (Drawn from the first Draft Plan of Action of the Conference Secretariat, paras. 8 and 9 and the Declaration of the Strasbourg Meeting, para. 35; the Plan of Action/Santiago, para. 157; and recommendations of the Expert Seminar on Remedies, para. 46.)

• The successful completion of such training programs should be made one of the criteria for promotion. (Drawn from the first Draft Plan of Action of the Conference Secretariat, paras. 8 and 9 and the Declaration of the Strasbourg Meeting, para. 35; the Plan of Action/Santiago, para. 157; and recommendations of the Expert Seminar on Remedies, para. 46.)

• Training should be reinforced by the incorporation of international human rights standards into the working rules, regulations, and procedures of the criminal justice system.

8. The death penalty, as a penalty that is inherently cruel, irreversible, and particularly susceptible to discrimination in its application, should be abolished.

^1. United Kingdom, Home Office, Statistics on Race and the Criminal Justice System: A Home Office Publication Under Section 95 of the Criminal Justice Act of 1991 (London, England: Home Office, 1998), chapters 3 and 4, cited in U.S. Department of Justice, A Resource Guide on Racial Profiling Data Collection Systems (Washington D.C., November 2000), p.18 , available on the web at www.usdoj.gov.

^2. John Lamberth, Driving while Black: A Statistician Proves that Prejudice Still Rules the Road, Washington Post, August 16, 1999, at C1; David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (The New Press: New York, 1999) at 36 and fn.66.

^3. Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, May, 2000, available at www.hrw.org.

^4. Roderic Broadhurst, Aborigines and Crime in Australia, in Michael Tonry, ed., Ethnicity, Crime, and Immigration, (University of Chicago Press: Chicago, Illinois, 1997).

^5. U.S. Department of Justice, The Federal Death Penalty System: A Statistical Survey (1988-2000), (Washington, D.C.: Department of Justice, September 12, 2000), available on the web at www.usdoj.gov.

^6. Death Penalty Information Center, at www.deathpenaltyinfo.org/dpicrace.html.

^7. Data from unpublished research by Human Rights Watch.

^8. Human Rights Watch, World Report 2001, p. 197; See also, Human Rights Watch, Broken People: Caste Violence Against India's Untouchables (New York: Human Rights Watch, 2000).

^9. Ibid., p. 291.

^10. CERD, General Comment XX (48th Session) on article 5, available on http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/8b3ad72f8e98a34c8025651e00 (accessed May 23, 2001).

^11. Committee on the Elimination of Racial Discrimination, Reports Submitted by States Parties Under Article 9 of the Convention, Third periodic reports of States parties due in 1999, Addendum, United States of America, CERD/C/351/Add.1 , October 10, 2000.

^12. Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: India, CERD/C/304/Add.13, September 17, 1996.