The United States made inaccurate and potentially misleading statements made by the United States in its oral submissions to the Committee on February 21-22, 2008, and in its February 20, 2008 written response to questions submitted by the Committee. In partcicular, Human Rights Watch would like to highlight four issue areas: children sentenced to life in prison without possibility of parole; non-citizens deported without adequate judicial review; the school-to-prison pipeline; and racial discrimination in administration of the death penalty.

Children sentenced to life in prison without possibility of parole

The United States is the only country in the world that sentences children (persons under the age of 18) to life in prison without possibility of parole or release (known as life without parole, or LWOP). Among the 2,381 US prisoners currently serving LWOP for crimes they committed as children, there are staggering racial disparities, with black youth serving LWOP at a per capita rate ten times higher than white youth.1

The United States has responded to the overrepresentation of African Americans in US prisons by suggesting that such racial 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.”2 Specifically with regard to children sentenced to LWOP, the United States on February 22, 2008 suggested in response to oral questions from the Committee that racial disparities can be explained by greater criminal involvement of black youth.

New research by Human Rights Watch disproves this assertion. To test the hypothesis that the racial disparities in children sentenced to LWOP can be explained by the allegedly greater criminality of black youth, Human Rights Watch looked only at youth who were arrested for murder, the crime that most often results in a sentence of LWOP. Human Rights Watch found that in ten US states, black youth who are arrested for murder are significantly more likely to be sentenced to LWOP than are white youth arrested for the same crime. In California, black youth who are arrested for murder are almost six times more likely to ultimately receive a sentence of LWOP than are white youth arrested for murder.3

Non-citizens deported without adequate judicial review

On February 22, 2008, Mr. Brian D. Kelliher of the US Department of Homeland Security told the Committee that, in the context of deportation, "US immigration laws provide for adequate due process" and that "all non-citizens may have their claims considered by immigration judges, seek Board of Immigration Appeals review and many may then seek review in the federal courts."

These statements obscure the fact that, since 1996, US law has provided for mandatory deportation of non-citizens, including legal residents, who have been convicted of crime, including minor and non-violent crime. In these cases, courts are categorically barred from weighing the seriousness of the crime against factors that would militate against deportation, such as length of legal residence, family and community ties, and fear of persecution in the receiving country.4 Since 1996, more than 670 000 persons have been deported from the US because of conviction of crime. Based on US government figures for the year 2005, Human Rights Watch estimates that nearly two-thirds, or almost half a million persons, were deported for non-violent offenses.5

School-to-prison pipeline

In Question No. 26, the Committee requested additional information on the federal law known as the “No Child Left Behind Act of 2001” (NCLB), and more specifically on the phenomenon known as the “school-to-prison pipeline.” In response, the United States asserts that “school boards elected by local citizens oversee local schools;” that “[a] school principal working under the policies set by the local school board is responsible for the discipline and order in the school;” and that “schools may refer some, all, or none of their serious behavioral problems to law enforcement.”6 The United States concludes, “[b]ecause school discipline and the environment of each school are individual to each school, a broad brush characterization such as the ‘school-to-prison pipeline’ cannot be made, and no data documents such a phenomenon.”7

These statements are inaccurate and fail to acknowledge federal legislation requiring local school districts to report certain students to law enforcement authorities. Indeed, NCLB itself requires any school district that receives federal funds to refer to a law enforcement agency any student who brings a “firearm or weapon” to school.8 Anecdotal evidence suggests that the term “weapon” has often been interpreted very broadly, to include such common items as books and shoes.

Racial discrimination in administration of the death penalty

In its response to the Committee’s Question No. 15 regarding racial bias in the application of the death penalty, the United States asserts that “no studies show statistically significant effects based on race of the defendant.”9 This is incorrect. To cite just one example, the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System concluded in 2003 that in Philadelphia County (the state’s largest), after controlling for the seriousness of the offense and other non-racial factors, African American defendants were sentenced to death “at a significantly higher rate” than similarly situated non-African American defendants.10 The study also concluded that one-third of African Americans on death row in Philadelphia County would not have received the death penalty if they were not African American.11

The United States also asserts that, with respect to racial bias in the application of the death penalty based upon the race of the victim, “evidence is equivocal; some studies show effects of the race of the victim, but others show none when characteristics of the crime are controlled for.”12 This statement fails to acknowledge recent studies, involving several large death penalty states, finding strong evidence of racial bias based upon the race of the victim. In October 2007 the American Bar Association (ABA) released a study of the death penalty in eight US states, including those with the second-largest (Florida) and fourth-largest (Pennsylvania) death-sentenced populations in the country.13 The ABA concluded that “every state studied appears to have significant racial disparities in its capital system, particularly those associated with the race of the victim,” and that “even in states with acknowledged racial disparities, little, if anything, has been done to rectify the problem.”14 Moreover, a 2005 study of California – the state with the nation’s largest death-sentenced population – found “widespread disparities in the way the death penalty is applied, and many of these inconsistencies are correlated with the homicide victim’s race and ethnicity.”15

I hope that this information is helpful to the Committee. If I can provide further information or otherwise be of assistance, please do not hesitate to contact me.

Very truly yours,

David C. Fathi
Director, US Program

Cc: Ambassador Warren Tichenor

1Human Rights Watch, Submission to the Committee on the Elimination of Racial Discrimination, During its Consideration of the Fourth, Fifth, and Sixth Periodic Reports of the United States of America, CERD 72nd Session, vol. 20, no. 2(G), February 2008, https://www.hrw.org/reports/2008/us0208/, pp. 20-21 (cited herein as “Human Rights Watch, Submission to CERD”).

2Government of the United States, Response to Questions Put by the Rapporteur in Connection with the Consideration of the Combined Fourth, Fifth and Sixth Periodic Reports of the United States of America to the Seventy-Second Session of the Committee on the Elimination of Racial Discrimination, February 20, 2008, p. 51 (cited herein as “US Response”).

3Human Rights Watch, Submission to CERD, pp. 23-25.

4Ibid., pp. 34-36.

5Ibid., pp. 32-34.

6US Response, p. 93.

7Ibid.

8Public Law 107-110, sec. 4141(h)(1).

9US Response, p. 53.

10Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System, “Final Report,” 2003, http://www.aopc.org/Index/Supreme/BiasCmte/FinalReport.pdf (accessed February 26, 2008), p. 201.

11Ibid.

12US Response, p. 53.

13The other states reviewed were Alabama, Arizona, Georgia, Indiana, Ohio, and Tennessee.

14American Bar Association, “State Death Penalty Assessments: Key Findings,” October 29, 2007, http://www.abanet.org/moratorium/assessmentproject/keyfindings.doc (accessed February 26, 2008).

15Glenn L. Pierce and Michael L. Radelet, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999,” 46 Santa Clara Law Review 1, http://www.ccfaj.org/documents/reports/dp/expert/Radelet.pdf (accessed February 26, 2008), p. 26.