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VII. Racial Injustice and Human Rights

In the post-civil rights era in the US, deep racial inequities remain in the criminal justice system. We do not know whether or to what extent conscious racism—that is, overt hostility to blacks—affects the actions of individual police, prosecutors, judges, politicians, or other participants in drug law enforcement. What we can identify are institutional structures and practices that appear to be color-blind but have the effect of perpetuating advantages for whites and disadvantages for blacks. The “war on drugs” is a paradigmatic example. Laws that appear racially neutral are actually embedded in particular racial dynamics adverse to African Americans, and their enforcement perpetuates those dynamics. As Prof. David Cole has observed, inequalities in the criminal justice system “do not stem from explicit and intentional race or class discrimination, but they are problems of inequality nonetheless.” The problem is not explicit and intentional considerations of race, but racial “disparities built into the very structure and doctrine of our criminal justice system….”¹⁰⁹

Drug law enforcement has deepened the racial disadvantages confronted by low-income African Americans even as it perpetuates the erroneous belief that most drug offenders are black. Research shows that “at a time when civil rights and welfare policies aimed at improving opportunities and living standards for black Americans, drug and crime policies worsened them … [They] have operated in the same ways as slavery and ‘Jim Crow’ legalized discrimination did in earlier periods to de-stabilize black communities and disadvantage black Americans, especially black American men.”¹¹⁰ The Leadership Conference on Civil Rights concluded in a study of civil rights and the criminal justice system, “Our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased. The injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress.”¹¹¹

Although racist intent is not a prerequisite to the existence of racial inequities, US state and federal constitutional law requires a finding of such intent before courts will rule unconstitutionally discriminatory practices that disproportionately burden a racial group.¹¹² International human rights law, specifically the International Convention on the Elimination of All forms of Racial Discrimination (ICERD), a treaty to which the United States is a party, is better suited to redressing racial inequities rooted in structural racism.¹¹³

ICERD prohibits policies and practices that have the purpose or effect (emphasis added) of restricting rights on the basis of race.¹¹⁴ It proscribes apparently race-neutral practices affecting fundamental rights—for example, the right to liberty—regardless of racist intent, if those practices create unwarranted racial disparities. The Convention requires remedial action whenever there is an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin.¹¹⁵ As the Committee on the Elimination of Racial Discrimination recently concluded after reviewing the most recent periodic reports of the United States regarding its compliance with ICERD:

The Committee reiterates the concern expressed in paragraph 393 of its previous concluding observations of 2001 (A/56/18, paras. 380-407) that the definition of racial discrimination used in the federal and state legislation and in court practice is not always in line with that contained in article 1, paragraph 1, of the Convention, which requires States parties to prohibit and eliminate racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect. In this regard, the Committee notes that indirect—or de facto—discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular racial, ethnic or national origin at a disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (Article 1(1)).¹¹⁶ 

Under ICERD governments may not ignore the need to secure equal treatment of all racial and ethnic groups, but rather must act affirmatively to prevent or end policies with unjustified discriminatory impacts.¹¹⁷ ICERD notes in particular the importance of eliminating racial discrimination in legal systems. Article 5(a) requires states party to “prohibit and eliminate racial discrimination … notably in the enjoyment of … the right to equal treatment before the tribunals and all other organs administering justice.”¹¹⁸ The Committee on the Elimination of Racial Discrimination has recommended that “[s]tates 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.”¹¹⁹

Although the Committee has not specifically addressed racial disparities in the enforcement of US drug laws, it has previously observed the particularly high rate of incarceration of African Americans and Hispanics, and recommended that the United States ensure that this disproportionately high incarceration rate was not a result of the “economically, socially and educationally disadvantaged position of these groups.”¹²⁰ In 2008 the Committee reiterated “its concern with regard to the persistent racial disparities in the criminal justice system [of the United States] including the disproportionate number of persons belonging to racial, ethnic and national minorities in the prison population.…”¹²¹ The Committee pointed out that stark racial disparities in the administration and functioning of the criminal justice system, particularly in the prison population, “may be regarded as factual indicators of racial discrimination….” It recommended that the United States “take all necessary steps to guarantee the right of everyone to equal treatment before tribunals and all other organs administering justice, including further studies to determine the nature and scope of the problem, and the implementation of national strategies or plans of action aimed at the elimination of structural racial discrimination.”

The United States suggested in its most recent submission to the Committee that racial disparities in the criminal justice system generally reflect racial disparities in offending, but it noted that there are “some unexplained disparities particularly related to drug use and enforcement.”¹²² We disagree. We think the United States could have explained racial disparities in drug law enforcement if it had sought to do so. But explained or not, those disparities cannot be justified. There can be little doubt that under ICERD, the United States must move forcefully to eliminate them.