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 racismthat is, overt hostility to blacksaffects 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 rightsfor example, the right to libertyregardless 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:
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 persons 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.
109 Cole, No Equal Justice, p.9.
110 Michael Tonry, Minnesota Drug Policy and its Disastrous Effects on Racial and Ethnic Minorities, in the appendices of Council on Crime and Justice, Justice, Where Art Thou, p. 63, citing research by University of California at Berkeley sociologist Loic Wacquant, http://www.crimeandjustice.org/researchReports/FINAL%20REPORT%2010.4.07.pdf (accessed April 16, 2008).
111 Ronald H. Weich and Carlos T. Angulo, Leadership Conference on Civil Rights, Justice on Trial, 2000, http://www.civilrights.org/publications/reports/cj/justice.pdf (accessed April 16, 2008).
112 The requirement of proof of intent has been a formidable barrier for victims of discrimination in the criminal justice system seeking judicial relief. Developments in the Law: Race and the Criminal Process, 101 Harvard Law Review 1520 (1988).
113 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on November 20, 1994.
114 Under ICERD, racial discrimination is defined as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ICERD, Part I, Article 1(1).
115 Committee on the Elimination of Racial Discrimination (CERD), General Recommendation 14(2) on Article 1, para. 1, of the Convention, U.N. GAOR, 48th Sess., Supp. No. 18, at 176, U.N. Doc. A/48/18(1993). See also, Theodor Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination," The American Journal of International Law, vol. 79 (1985), pp. 287-88.
116 CERD, Consideration of Reports Submitted by State Parties under Article 9 of the Convention: Concluding Observations, United States of America, CERD/C/USA/CO/6, February 2008, para. 10, http://www2.ohchr.org/english/bodies/cerd/docs/co/CERD-C-USA-CO-6.pdf (accessed April 16, 2008). The Committee also considered written and oral testimony by numerous nongovernmental organizations. The submission by Human Rights Watch is available online: Human Rights Watch, United States Submission to the Committee on the Elimination of Racial Discrimination, vol. 20, no. 2(G), February 2008, http://hrw.org/reports/2008/us0208/.
117 States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms . Each State Party undertakes to engage in no act or practice of racial discrimination and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation ICERD, Part I, Article 2(1)(a).
118 Ibid., Article 5(a).
119 CERD, 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.
120 CERD, Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America, CERD/C/59/Misc.17/Rev 3, August 14, 2001, para. 16. It also instructed the United States to take firm action to guarantee the right of everyone to equal treatment before the courts.
121 CERD, Concluding Observations: United States of America, February 2008, para. 20.
122 Government of the United States, Periodic Report of the United States of America to the U.N. Committee on the Elimination of Racial Discrimination Concerning the Convention on the Elimination of All Forms of Racial Discrimination, April 2007, http://www.ushrnetwork.org/files/ushrn/images/linkfiles/CERD%20Report%204-07.pdf (accessed April 16, 2008), paras. 165 and 327. Along with many other NGOs, Human Rights Watch submitted information to the Committee for the record for the Committees review of the United States compliance with its obligations under ICERD, during its 72nd session. Human Rights Watch, United States - Submission to the Committee on the Elimination of Racial Discrimination.