Racism, Criminal Justice, and Public Administration

Racial, ethnic, and related identities can be a powerful source of cohesion, values, and identity that strengthen and enrich individual and community lives. These identities can also be manipulated for political gain, employed to oppress and destroy, and used as criteria for determining whose rights are respected and whose are obliterated. Although the international community cannot remove all race and descent-based doctrines from political discourse, it can and must work to ensure that the power of the state does not promote race or descent-based hatred and is not employed to perpetuate and deepen race or descent-based distinctions in the exercise of basic rights.

Not all government actions that have racially disparate impacts constitute internationally prohibited discrimination. In some cases, the discrimination is overt, intentional and explicit; in others, ostensibly race neutral policies have an unjustified disparate impact. In some cases policies are motivated by express ethnic hostility; in others they reflect a "malign neglect," a refusal to take seriously the need to secure equal treatment of all racial and ethnic groups.

The Committee on the Elimination of Racial Discrimination, in its General Recommendation on article 1, paragraph 1 of the Convention, concludes that "Non-discrimination, together with equality before the law and equal protection of the law without any discrimination constitutes a basic principle in the protection of human rights." It observes that this is confirmed in article 2, paragraph 1 (c), which obliges States "to nullify any law or practice which has the effect of creating or perpetuating racial discrimination." (Emphasis added.) As a consequence, it declared that in considering whether a differentiation of treatment constitutes discrimination, "it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin." (Emphasis added.)

In many societies, racism is most evident in the area of criminal justice; in the administration of social services, education, and public housing; and even in the restrictions of the freedom of movement and the right to live in a particular area of one's own country.

In the states of the former USSR, control of movement and residence continues to be exercised at the national, provincial, or municipal level. In Russia, the administration of these restrictions often assumes racial dimensions, while implementation of residency controls through the propiska system serves as a pretext for the police harassment, arbitrary arrest, and extortion of people distinguished by their racial characteristics.

In the United States, race and the criminal justice system are a matter of continuing national concern. The examples of discriminatory impact are numerous: African-Americans and other minorities report police abuse more frequently than whites. Juvenile offenders from minority communities are more likely to be arrested and confined in detention facilities than white juveniles who have committed the same offense. Although there are far more white drug law offenders than black, ostensibly race neutral laws designed to curtail drug abuse have been enforced in ways that have targeted black communities and sent disproportionate numbers of black men and women to prison on drug charges. Blacks who murder white victims have the highest chance of ending up on death row; whites who murder blacks have the lowest chance. In some states, police engage in explicit racial profiling--police stop a person on the assumption of possible criminal activity simply because a person is black or Hispanic.

In Western Europe, where migration and increased movement within the European Union has gradually made populations less homogenous, this has been accompanied by xenophobia, racist violence against migrants and national minorities, and the emergence of political movements founded on the manipulation of racism fears and the promotion of racist, exclusionist policies.

In states formed by secession, often on grounds of a distinct and predominant nationality and a claim to an ancestral territory, the overt racism of forced expulsions, denial of citizenship, and racial violence have been accompanied or succeeded by administrative measures to implement other often scarcely concealed racist policies. In the successor states of the former Yugoslavia, administrative law and regulations concerning public housing were altered and applied as an instrument of public policy designed to benefit members of particular ethnic groups, largely to the exclusion of other ethnic groups.