February 7, 2008

Article 5(a)

Convention Standards and Concerns

The US practice of sentencing youth offenders to life without the possibility of parole (LWOP) is a violation of US obligations under international law. Specifically, Article 10.3 of the International Covenant on Civil and Political Rights (ICCPR) provides that "juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status," and Article 14.4 says that governments are to, "[i]n the case of juvenile persons … take account of their age and the desirability of promoting their rehabilitation."[47] Article 24.1 states that every child has "the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the State."[48] In 2006, the treaty body responsible for enforcing the ICCPR, the Human Rights Committee, concluded that "[t]he Committee is of the view that sentencing children to life sentences without parole is of itself not in compliance with article 24.1 of the Covenant."[49]

While the sentencing of youth to life without parole in the United States itself constitutes a violation of these and other important human rights norms, in this submission, Human Rights Watch presents data strongly suggesting that US jurisdictions also engage in racially disparate use of LWOP sentences. These data challenge the US government's assertion that "disparities are related primarily to differential involvement in crime by the various groups … rather than to differential handling of persons in the criminal justice system."[50] As detailed below, we found significant disparities in the rate at which African-American youth and white youth arrested for murder face life without parole. In California, for example, an African-American youth arrested for murder is more than five times more likely to receive the sentence than a white youth arrested for murder.

Racial disparities evident in the imposition of LWOP sentences on youth constitute a violation of ICERD. Article 5(a) of ICERD requires states parties to "eliminate racial discrimination … notably in the enjoyment of … the right to equal treatment before the tribunals and all other organs administering justice." The racial disparities in life without parole sentencing for youth also violate the Committee's instruction in its Concluding Observations to "take firm action to guarantee the right of everyone … to equal treatment before the courts,"[51] and its recommendation that "States should ensure that the courts do not apply harsher punishments solely because of an accused person's membership of a specific racial or ethnic group."[52]

Unfortunately, with regard to the use of the LWOP sentence, the US is failing to fulfill its obligations under ICERD and to heed these instructions from the Committee.

Illustration: Racial Disparities in the Sentencing of Youth to Life without Parole

To examine racial disparities in use of LWOP for youth, we first examined the rates of arrest for black and white youth. Like many others, we found that states across the country arrest black youth for murder at per capita rates that far exceed the murder arrest rates for white youth. On average across the country, black youth are arrested for murder at per capita rates that are six times higher than white youth.[53] Examining differences between states, we found (figure 1) that the states of Michigan, Wisconsin, and Missouri have much larger differences between their per capita rates of murder arrests for black and white youth than the average among the 25 states in which data were available. To view the actual arrest rates themselves, as distinguished from the ratios showing the disparities, see Appendix 3.

 

Figure 1

Murder arrest data extracted by Human Rights Watch from data provided by the Federal Bureau of Investigation (FBI), "Uniform Crime Reporting Program: 1990-2005 Arrest by State" (extracted by code for murder crimes, juvenile status, and race), on file with Human Rights Watch. Population data extracted by Human Rights Watch from C. Puzzanchera, T. Finnegan, and W. Kang, National Center for Juvenile Justice, "Easy Access to Juvenile Populations Online: US Census Population Data," State Population Data with Bridged Race Categories 2004, for ages 14-17, http://www.ojjdp.ncjrs.gov/ojstatbb/ezapop/ (accessed January 2, 2008). Certain states are not included in the above figure because of insufficient data (see footnote 57 below). Ratio calculated using rates per 10,000 population of youth age 14-17 disaggregated by race and state.

Next, we examined the number of youth sentenced to LWOP. Based on data gathered from state departments of corrections in 2004, and updates gathered by Human Rights Watch and others during 2007, we now estimate that there are 2,381 youth offenders sentenced to life without parole in the United States.[54] This stands in stark contrast to the seven youth offenders serving life without parole in the only other country in the world known to impose this sentence: Israel.[55]

We have data on the race (white or black) of youth serving life without parole in the United States for 25 of the 39 states that apply the sentence in law and practice. As illustrated by figure 2 below, in all of these states, relative to the state population in the age group 14-17,[56] black youth are serving life without parole at rates that are higher than their white counterparts. On average, black youth are serving the sentence at a rate that is 10 times that of white youth. In the states of California, Connecticut, and Pennsylvania, black youth are serving the sentence at a rate that is 17.5 to 18.3 times higher than the rate for white youth.

Figure 2

-

Youth offenders serving life without parole data originally published in Human Rights Watch and Amnesty International, The Rest of Their Lives: Life without Parole for Child Offenders in the United States (New York: Human Rights Watch, 2005), http://hrw.org/reports/2005/us1005/; and supplemented by data on under-18 offenders serving life without parole in California provided to Human Rights Watch from California Department of Corrections and Rehabilitation in April 2007. Data on under-18 offenders serving life without parole in Mississippi provided to Human Rights Watch from the National Association for the Advancement of Colored People Legal Defense Fund in October 2007 (report forthcoming). Population data extracted by Human Rights Watch from C. Puzzanchera, T. Finnegan, and W. Kang, National Center for Juvenile Justice, "Easy Access to Juvenile Populations Online: US Census Population Data," State Population Data with Bridged Race Categories 2004, for ages 14-17, http://www.ojjdp.ncjrs.gov/ojstatbb/ezapop/ (accessed January 2, 2008). Certain states are not included in the above figure because of insufficient data. Ratio calculated using rates per 10,000 population of youth age 14-17 disaggregated by race and state.[57]

To examine if, once convicted, black youth and white youth face the same likelihood of being sentenced to life without the possibility of parole, Human Rights Watch sought data on youths convicted of murder, since murder is the crime that most commonly results in life without parole sentences for youth offenders.

Unfortunately, after several months of research, we were unable to find any state-based or nationally-based repository of data that tracked convictions of persons for murder, disaggregated by state, race, and youth offender status. To our knowledge, there is no such data source currently available in the country.[58] Similarly, there are no publicly available data on youth murder arrest rates, disaggregated by state and race. However, the Federal Bureau of Investigation agreed to produce a special dataset for us reporting on arrest rates disaggregated by state and race for the years 1990-2005. These data form the basis for Human Rights Watch's analysis in this submission.[59]

With regard to the sentencing of youth to life without parole, the data provided by the FBI showed that, once arrested for murder, black youth and white youth face strikingly different chances of receiving a sentence of life without the possibility of parole.

Figure 3 presents the ratio of black youth arrested for murder to black youth sentenced to life without the possibility of parole (column B) and compares this ratio to the comparable ratio for white youth (column C). The difference between the ratio for black and for white youth is presented as a ratio in column D.

If race was not related to sentencing, we would expect that latter ratio to be equal to one. However, in 10 states, we found that the ratio was significantly higher. California has the worst disparities in the nation: for every 21.14 black youth arrested for murder in the state, one is serving a LWOP sentence; whereas for every 123.31 white youth arrested for murder, one is serving LWOP.[60] In other words, black youth arrested for murder are sentenced to LWOP in California at a rate that is 5.83 times that of white youth arrested for murder. Among all 25 states for which we had data, black youth arrested for murder were sentenced to LWOP at a rate 1.56 times that of white youth arrested for murder.

These disparities support the hypothesis that there is something other than the criminality of these two racial groups-something that happens after their arrests for murder, such as unequal treatment by prosecutors, before courts, and by sentencing judges-that causes the disparities between sentencing of black and white youth to LWOP.

Figure 3

State

(Column A)

Black Murder Arrest Rate / Black LWOP Rate

(Column B)

White Murder Arrest Rate / White LWOP Rate

(Column C)

White Rate of LWOP per Arrests / Black rate of LWOP per Arrests

(column D)

California

21.14

123.31

5.83

Delaware

3.00

12.00

4.00

Colorado

4.58

15.29

3.34

Arizona

16.33

52.71

3.23

Georgia

87.50

262.50

3.00

Connecticut

22.83

47.50

2.08

N. Carolina

22.44

37.83

1.69

Illinois

12.74

18.90

1.48

Pennsylvania

2.86

3.60

1.26

Nebraska

4.40

5.40

1.23

Murder arrest data extracted by Human Rights Watch from data provided by the Federal Bureau of Investigation, "Uniform Crime Reporting Program: 1990-2005 Arrest by State" (extracted by code for murder crimes, juvenile status, and race), on file with Human Rights Watch. Population data extracted by Human Rights Watch from from C. Puzzanchera, T. Finnegan, and W. Kang, National Center for Juvenile Justice, "Easy Access to Juvenile Populations Online: US Census Population Data," State Population Data with Bridged Race Categories 2004, for ages 14-17, http://www.ojjdp.ncjrs.gov/ojstatbb/ezapop/ (accessed January 2, 2008). Certain states are not included in the above figure because of insufficient data (see footnote 57, above). Youth offenders serving life without parole data originally published in Human Rights Watch and Amnesty International, The Rest of Their Lives: Life without Parole for Child Offenders in the United States (New York: Human Rights Watch, 2005), http://hrw.org/reports/2005/us1005/; and supplemented by data on under-18 offenders serving life without parole in California provided to Human Rights Watch from California Department of Corrections and Rehabilitation in April 2007 (report forthcoming). Data on under-18 offenders serving life without parole in Mississippi provided to Human Rights Watch by the National Association for the Advancement of Colored People Legal Defense Fund in October 2007 (report forthcoming). Iowa data could not be used for this comparison.

These data reveal unequal treatment in the criminal justice system. Because this unequal treatment cannot be explained by white and black youths' "differential involvement in crime,"[61] it constitutes a violation of US obligations under ICERD.

Recommendations to the Committee

  • Instruct the United States to end the practice of the sentencing youth to life without parole by the federal government and constituent states.
  • Until the sentence is eliminated for youth throughout the United States, eliminate the unequal treatment in the criminal justice system that is causing the application of this harsh punishment to African-American youth at rates that are higher than those applied to similarly situated white youth.
  • Urge the United States to compile and regularly publish accurate data on conviction and sentencing rates for youth offenders, disaggregated by race.

[47] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, Article 14.4.

[48] ICCPR, Article 24.1.

[49] UN Human Rights Committee, "Concluding Observations of the Human Rights Committee on the United States of America," July 27, 2006, CCCPR/C/USA/CO/3/Rev.1, December 8, 2006, http://daccessdds.un.org/doc/UNDOC/GEN/G06/459/61/PDF/G0645961.pdf?OpenElement (accessed February 1, 2008), para. 34.

[50] Government of the United States, Periodic Report Concerning ICERD, 2007, para. 165.

[51] Committee on the Elimination of Racial Discrimination, "Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America," UN Doc. A/56/18, 59th Session, 30 July – 17 August, 2001, para. 395.

[52] Committee on the Elimination of Racial Discrimination, General Recommendation 31: Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, CERD/C/64/Misc.11/rev.3, para. 34.

[53] These racial disparities in per capita arrest rates for murder may reflect racial discrimination in the administration of juvenile justice in the United States, or they may reflect differences between black and white youth criminality. Most likely, the truth is some combination of these factors: in some instances black youth do in fact commit more murders than white youth, and in some instances the policing and criminal justice systems that cause youth to be arrested for murder are permeated with racial discrimination.

[54] See, for example: Center for Law and Global Justice, University of San Francisco School of Law, "Sentencing Our Children to Die in Prison: Global Law and Practice," November 2007, http://www.usfca.edu/law/home/CenterforLawandGlobalJustice/LWOP_Final_Nov_30_Web.pdf (accessed February 1, 2008), fn. 19; Human Rights Watch and Amnesty International, The Rest of Their Lives: Life without Parole for Child Offenders in the United States (New York: Human Rights Watch, 2005), http://hrw.org/reports/2005/us1005/.

[55] Center for Law and Global Justice, "Sentencing our Children to Die in Prison," p. 17.

[56] For all calculations introduced in this section, Human Rights Watch used state population data based on the 2000 Census, estimated for the year 2004 with bridged race categories. We used population data from 2004 because this provided us with the most fairly comparable population data to the LWOP sentencing data from states, which we collected in 2004. We used bridged race categories because most state correctional systems have not adopted the 31 new racial categories established in 1997 by the US Census Bureau. Therefore, we believe that using the bridged race population estimates for 2004 provides the most accurate comparative data. The National Center for Health Statistics explains that the bridged race data "result from bridging the 31 race categories used in Census 2000, as specified in the 1997 Office of Management and Budget (OMB) standards for the collection of data on race and ethnicity, to the four race categories specified under the 1977 standards. Many data systems, such as vital statistics, are continuing to use the 1977 OMB standards during the transition to full implementation of the 1997 OMB standards. The bridged-race population estimates are produced under a collaborative arrangement with the U. S. Census Bureau. The bridging methodology is described in the report, http://www.cdc.gov/nchs/about/major/dvs/popbridge/popbridge.htm."

[57]Statesthat prohibit LWOP for youth offenders: Alaska, Colorado (as of 2005), District of Columbia, Kansas, Kentucky (cases under court challenge), New Mexico, and Oregon. No race data provided to Human Rights Watch from the states of Hawaii, Idaho, Montana, North Dakota and Virginia. No racial disparity rates calculated for Indiana, Minnesota, New Hampshire, Ohio, Rhode Island, South Dakota, and Wyomingbecause each of these states had either zero African-American or zero white youth sentenced to life without parole: IN (two white / zero African-American), MN (one white / zero African-American), NH (10 white / zero African-American), OH (zero white, one African-American), RI (zero white, one African-American), SD (six white / zero African-American) WY (three white / zero African-American). No racial disparity rates calculated for Florida because the FBI provided Human Rights Watch with murder arrest data only for the years 1990-1995, which were insufficient data to provide accurate rates comparable with other state data.

[58] Human Rights Watch made extensive and repeated attempts to obtain national statistics on juvenile homicide convictions by state and race, but was unable to acquire the information. In early November 2007, efforts were made by Human Rights Watch staffers to locate state conviction data for juveniles by canvassing the internet for public or non-profit research, and statistics incorporating age, offense, and race were not located. On November 12, Human Rights Watch spoke with Melissa Sickmund, senior research associate at the National Center for Juvenile Justice (NCJJ), who explained that no national court reporting system exists to compile such data, and that there is no federal mandate to collect conviction information from individual states. On November 13, Human Rights Watch contacted the Department of Justice's Bureau of Justice Statistics (BJS) and spoke with Page Harrison, who explained that the BJS did not have such data either, and that the little conviction data they did have were largely estimates based on small samples. On November 19, Human Rights Watch spoke with Thomas Cohen and Erica Smith, BJS statisticians, who reiterated their colleague's belief that short of a large-scale request to individual state courts on conviction data, the arrest data maintained by the FBI's Uniform Crime Reporting Program was the best data source to conduct the analysis Human Rights Watch sought to do.

[59]  It must be noted that arrest data are notoriously inaccurate as an indicator of actual criminal participation by different racial groups, youth or adult. With regard to youth, as noted by our colleague NGOs in the summary of their submission to the CERD Committee: "[R]acial disparities in school discipline and drop-out rates, in combination with increasing presence of law enforcement in public schools attended predominantly by low income youth of color and heightened 'gang policing' efforts targeting youth of color, have contributed to significant racial disparities in youth arrests … [f]or instance, African-American youth are 16 % of the overall population, but represent 28 % of children arrested in the US." US Human Rights Network, "ICERD Shadow Report 2008," para. 52.

[60] Note that these rates are comparing FBI murder arrest data from the same years as LWOP sentencing data, but these data come from two different sources and thus do not necessarily track the same individual cases. We are using FBI murder arrest data as a proxy for criminality in order to compare criminality and sentencing trends.

[61] In addition, because arrest data may reflect racial discrimination in policing as well as actual criminal participation by different groups, racial disparities may in fact be worse than these data reveal. That hypothesis could be better tested if conviction data were available to conduct this analysis.