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Using International Human Rights Law to Combat Racial Discrimination in the U.S. Criminal Justice System

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Using International Human Rights Law to Combat Racial Discrimination in the U.S. Criminal Justice System



I. Introduction 102

II. Racial Discrimination in General 106

A. Racial Discrimination in the United States 107

B. International Human Rights Law in the Battle Against Racial Discrimination 109

III. Examples of Racial Discrimination in the U.S. Criminal Justice System 112

A. Wrongful Accusations 112

B. Racial Discrimination in the Jury Selection Process 114

C. Wrongful Convictions 117

D. Racial Discrimination in Sentencing 120

E. Racial Discrimination in the Appellate System and the U.S. Supreme Court 122

F. The Victims of Racial Injustice 126

IV. The Foundations of Racial Injustice in the United States 133

A. A Short History of the Search for Equality in America 134

B. A Statistical View of the Problem 140

V. Potential Domestic-Based Solutions to the Problem 142

A. Embrace the Jury and its Imperfections 142

B. Limit or Eliminate the Death Penalty 144

C. Repurpose Existing Law 144

D. Leverage Technology 146

E. A Look to the Future 146

VI. International Human Rights Law 147

A. Jurisdiction and Relevance 147

B. The Treaty Bodies: ICERD, ICCPR, and ICESCR 154

C. Procedure of Inquiry 159

D. Regional Human Rights Law Systems and the Inter-American System 160

E. U.N.-Charter-Based Mechanisms 166

i. Procedueral Remedies 167

ii. Universal Periodic Review 168

VII. Conclusion: What Actions Can Address Racial Discrimination in the U.S. Criminal Justice System? 173


The favorite culprits for high black prison rates include a biased legal system, draconian drug enforcement, and even prison itself. None of these explanations stands up to scrutiny. The black incarceration rate is overwhelmingly a function of black crime. Insisting otherwise only worsens black alienation and further defers a real solution to the black crime problem.

The above quotation illustrates the main argument in opposition to the assertion that racial discrimination exists in the U.S. criminal justice system. Supporting this argument are the statistics from the federal Bureau of Justice Statistics stating that the homicides committed by African-Americans occurred at a rate of more than seven times that of Whites. "From 1976 to 2005, blacks committed over [fifty-two] percent of all murders" that occurred in the United States. Furthermore, studies have shown that across a range of crimes, parity exists between the race of assailants identified by victims and arrest rates, implying that, barring any evidence of latent racism in crime victims' reports, the high arrest rate of certain races is not biased.

Countering the argument cited above is the claim that unequal treatment of various minorities pervades each stage of the U.S. criminal justice system, as reflected in buy-and-bust operations, racial profiling, street sweeps, and other police activities that have targeted people in low-income communities populated mainly by minorities. This argument states that a cyclical, self-perpetuating aspect to the treatment of certain minorities exists in the American criminal justice system, stemming from the perception by enforcement officers and decision-makers in the process that minorities commit most crimes and that most crimes are committed by minorities. While empirically false, these perceptions have directed a disproportionate amount of law enforcement attention on minorities, in turn leading to disproportionate arrests of minorities, ultimately resulting in racial disparities in incarceration rates. These claims are also bolstered by statistical studies stating that of the more than two million adults imprisoned in the United States at one time, about 70% are non-whites, and that though African-Americans make up only about 13% of the U.S. population, they represent nearly 50% of the adult population in federal, state, and local prisons and jails. Another study shows that African-American men have a 32% chance of spending time in prison in their lifetimes, while Hispanic men have a 17% chance, contrasted with white males, who have only a 6% chance.

Such statistical studies are routinely used by those who argue that racial discrimination does indeed exist in, if not permeate, the U.S. criminal justice system; but when the U.S. Supreme Court held in McCleskey v. Kemp that such a claim would have no limit given its basis, proponents of racial discrimination in the U.S. criminal justice system were dealt a severe blow. Debates have consistently rejected arguments claiming that these studies should have an effect on individual cases, making it difficult to prove that racial discrimination exists in the American criminal justice system, rendering possible remedies even more unattainable.

Today, the debate goes on. Some argue that the war on drugs, resulting in a significant surge in arrests and incarcerations over the past four decades, has disproportionately affected blacks. Others counter that even if more blacks are arrested and prosecuted on drug charges than whites, the number associated with the disparity--about five thousand additional arrests per year--is insignificant in relation to the disproportionality of the prison population related to blacks. Furthermore, the statistics stating that blacks have committed fifty-two percent of all murders within American borders from 1976 to 2005 should be reviewed in the context of a few questions: Have all murders in this period been solved? Were blacks disproportionately targeted in investigations of murders? Were all blacks who were convicted



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