Using the UN to Stand Up Against Racism in the U.S.

 

The Advocates for Human Rights has Special Consultative status with the United Nations, allowing us to bring matters of concern to the attention of the UN human rights mechanisms. Volunteer Veronica Clark presented The Advocates for Human Rights’ statement on racism in the United States at the United Nations Human Rights Council in Geneva, Switzerland on March 20, 2017.

Mr. Vice President:

The Advocates for Human Rights is deeply concerned about the rise in hate crimes and incidents of bias targeting racial, ethnic, and religious minorities in the United State. Hate crimes are recognized and prosecuted in the U.S.under federal and state laws. Yet 5,850 criminal incidents and 6,885 related bias offenses were reported in 2015. Fifty-nine percent of victims were targeted because of a race/ethnicity/ancestry bias.

Further, policies and practices at the federal, state, and local levels continue to disproportionately impact racial and ethnic minorities. Racial and national origin bias pervades the U.S. criminal justice system, including widespread use of racial profiling and stark racial disparities in arrests, convictions, and sentencing.

The Advocates for Human Rights encourages Member States, including the U.S., to take concrete action to:

  • Adopt at local, state and national levels comprehensive legislation prohibiting racial profiling;
  • Collect and publish statistics about police stops, searches, and abuse, to monitor trends regarding racial profiling and treatment of minorities by law enforcement;
  • Establish independent oversight bodies within police agencies, with real authority to conduct impartial investigations of all complaints of human rights violations;
  • Provide adequate resources to train law enforcement officials;
  • Assess the disproportionate impact of mandatory minimum sentences on racial and ethnic minorities; and
  • Create a national commission to examine police tactics nationwide, including the use of excessive force, militarization of local police forces and policing of protests.

Thank you.

Related post Hate groups, incidents proliferating in U.S., The Advocates tells UN Human Rights Council

Hate groups, incidents proliferating in U.S., The Advocates tells UN Human Rights Council

The increase in hate groups in the United States and the rise in incidents targeting migrants, refugees, and other groups were the focus of an oral statement made to the United Nations Human Rights Council by The Advocates for Human Rights.  The Advocates for Human Rights’ Deputy Director Jennifer Prestholdt delivered the following oral statement on March 17, 2017 during the Human Rights Council’s debate on racial profiling and incitement to hatred, including in the context of migration.

Mr. President:

The Advocates for Human Rights is deeply concerned about the rise in incidents targeting migrants, refugees, and racial, ethnic, and religious minorities in the United States, as well as the proliferation of hate groups.  Of greatest concern, however, is that some who have actively supported racist and xenophobic positions have assumed powerful leadership and advisory roles in the executive branch, lending an air of legitimacy to those views.

Recent changes to immigration policy raise serious concerns about racial and national origin profiling by the Department of Homeland Security’s Immigration and Customs Enforcement. ICE “deports by attrition” by making undocumented migrants fearful of remaining in the U.S. Indeed, ICE arrests have increased sharply and we have received numerous reports of people being taken into custody outside courtrooms, in vehicles, and at their homes.

Local law enforcement has turned over thousands to ICE following traffic stops or other encounters. To facilitate removal, ICE routinely interrogates these migrants without counsel, intimidating them into agreeing to be deported without a hearing. An estimated 75% of deportees waive all legal rights, including claims to asylum, protection under CAT, and claims based on family unity.

These policies erode trust between immigrants and law enforcement, a trust many communities have worked to build in the interest of public safety.  Yet the administration’s January 25 executive order on domestic immigration enforcement would bar federal funding to jurisdictions that adopt community policing policies.

The Advocates for Human Rights is deeply concerned about the profiling and religious discrimination inherent in the administration’s most recent attempt to ban entry of people from 6 majority-Muslim countries and to halt the U.S. Refugee Admissions Program. People who are or are perceived to be Muslim report facing additional scrutiny upon entry into the U.S. and their family members living abroad face an uncertain future.

The Advocates for Human Rights encourages the Human Rights Council to keep this issue at the forefront of its agenda.  Further, we call on all Member States, including the United States, to honor non-refoulement obligations and ensure that national immigration policies, as well as law enforcement practices, do not discriminate based on race, national origin or other status.

Thank you.

 

Lives on the Line: Will Supreme Court Hold U.S. Accountable for the Death Penalty?

Video excerpting questions about the administration of the death penalty in the United States from the United Nations Human Rights Committee, as well as the responses from the United States delegation.

The United Nations Human Rights Committee took an important step last week in holding the United States accountable for its human rights record, and Friday the ball is in the Supreme Court’s court. In a March 27 press conference, the Committee issued its Concluding Observations, following analysis of the United States’ self-report on its human rights record, shadow reports from The Advocates and other civil society organizations, and an interactive dialogue between the Committee and a 32-member government delegation on March 13 and 14 in Geneva, Switzerland.

On Friday, the Supreme Court has a chance to take up one of the Committee’s key issues.

One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva
One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva (I am seated on the right.)

I helped author The Advocates’ shadow reports, and I was in Geneva to participate and observe, representing The Advocates. Our shadow reports, submitted to the Committee in October 2013, held the United States’ feet to the fire on the death penalty, rights of non-citizens, immigration and asylum, and violence against women. The Committee’s Concluding Observations were long and detailed, delving into a wide variety of concerns, including the issues The Advocates and its partners raised.

Two lives were on the line

We were particularly excited when the U.S. State Department announced the delegation, because it included Mississippi Attorney General Jim Hood. This is the first time a U.S. delegation for a treaty-body review has included representatives from state and local governments. They are an important piece of the accountability puzzle because many of our country’s human rights obligations need to be implemented at the state and local level.

Mississippi retains the death penalty, and Attorney General Hood had just asked the Mississippi Supreme Court to schedule two back-to-back executions for March 26 and 27–for Charles Ray Crawford and Michelle Byrom. We knew that two lives were on the line.

Committee highlights key death penalty issues

The Committee’s examination of the United States on March 13-14 and its Concluding Observations mirror some of the issues we raised in our shadow reports. They devote much attention to the death penalty, including the associated issues of exonoree compensation, racial disparities, and sourcing of drugs used for executions.

While welcoming the overall decline in the number of executions and the increasing number of states that have abolished the death penalty, the Committee shares The Advocates’ concerns about its continued use. The Committee is concerned by the high number of people wrongly sentenced to death, despite existing safeguards, and it is concerned about the racial disparities in the death penalty’s imposition—disparities that disproportionately affect African Americans and that are exacerbated by the rule that discrimination has to be proven case-by-case.

As I discuss below, just this week there have been some developments on the issue of wrongful convictions.

Committee urges federal and state governments to ensure fair compensation for people who are wrongfully convicted and sentenced to death

The Committee also notes, as we observed in our shadow report, that 16 states retaining the death penalty do not provide compensation for people who are wrongfully convicted; other states provide insufficient compensation or impose barriers to obtaining it. Consider Glenn Ford. Wrongfully convicted in Louisiana, Ford spent almost 30 years on death row for a crime he didn’t commit. As Committee expert Professor Walter Kaelin noted during the review, he was exonerated and released just days before the Committee’s review. He would have been about 34 years old when he entered death row, and was 64 when he was released. Louisiana’s compensation law allows him to collect only a maximum $330,000 for the three decades he spent on death row for a crime he didn’t commit.

The Committee also notes with concern reports that states administer untested, unregulated drugs to execute prisoners, and that state authorities withhold information about the drugs from those to be executed. There have been some late-breaking developments around the country on these drug-sourcing issues.

Committee hits hard on Mississippi’s sourcing of lethal drugs

Mississippi Attorney General Jim Hood, March 14, 2014, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions.
Mississippi Attorney General Jim Hood, March 14, 2014, Geneva, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions. (Photo by the author.)

 

We were really fortunate that Mississippi Attorney General Hood was part of the U.S. delegation in Geneva. I was there on the ground, so my colleagues at The Advocates and I were able to quickly collect facts about the upcoming executions of Crawford and Byrom that Hood had requested and fed hard-hitting questions about Mississippi’s lethal injection policies directly to the Committee experts.

Mississippi was just one week away from executing Crawford and Byrom with drugs from a compounding pharmacy. As our shadow report explains, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, and Mississippi’s drugs had likely expired. These kinds of drugs carry a high risk of causing excruciating pain; one of the more recent executions to use compounded drugs resulted in the prisoner crying out during his execution, “I feel my whole body burning.”

Drug-sourcing has become a problem for states seeking to execute inmates, because many European drug manufacturers have stopped selling drugs like pentobarbital to the United States, fearing they will be used in executions. States are therefore scrambling to come up with alternative ways to concoct their execution drugs.

It was instructive that an official from a state government was part of the U.S. delegation—a first—because state governments conduct the overwhelming majority of executions. And the Committee experts repeatedly pressed Attorney General Hood on the sources of Mississippi’s lethal drugs.

You can see the questioning in the 17-minute video at the top of this post, which excerpts the relevant questions on the death penalty from the Committee and responses from the U.S. delegation.

Due Process revived: Michelle Byrom granted new trial; Charles Ray Crawford’s appeal to proceed

Soon after the Committee’s examination, Attorney General Hood’s office asserted that he asks for execution dates only “once due process has occurred.” The Mississippi Supreme Court this week twice disagreed with his characterization of due process. The court reversed Michelle Byrom’s conviction and granted her a new trial with a new judge. In its two-page order, the court emphasized that its action was “extraordinary and extremely rare.”

Seemingly oblivious to his own role in nearly executing someone the court determined was entitled to a new trial, and to the extraordinary nature of the court’s decision, Hood responded, “Our citizens can once again take comfort in the fact that we have a legal system that works for all parties involved.” And rather than accepting the court’s decision, a motion from Hood’s office complained that “[e]ach and every claim that Byrom presented to this Court had been addressed on the merits either by this Court or the federal courts on habeas corpus review,” and asked for the court to explain its decision.

On the same day, the Mississippi Supreme Court denied Attorney General Hood’s request to execute Charles Ray Crawford. The court noted that during the sentencing phase of Crawford’s trial, the prosecution introduced as an aggravating factor evidence that he had previously been convicted of rape. The court noted that Crawford’s appeal of that rape conviction was currently pending, so Hood’s request to execute Crawford was premature.

Challenges to sketchy lethal drug sourcing multiply

Last week, before the Mississippi Supreme Court rejected Hood’s requests, attorneys for Byrom and Crawford filed a lawsuit challenging the drugs that the State of Mississippi had purchased for their executions. The state had initially refused to tell Byrom and Crawford where it had obtained pentobarbital, the first drug in Mississippi’s execution procedure.

But some clever detective work by Byrom and Crawford’s legal team uncovered the source–a compounding pharmacy called Brister Brothers in Grenada, Mississippi. Judging from Brister Brother’s facebook page, the outfit specializes in “herbal dietary supplements,” including a “specially formulated men’s tonic” called “Man Up.”

Brister Brothers co-owner Ward Brister says the company is a “third-party supplier” and did not compound the pentobarbital. According to an NBC report, “Byrom’s legal team presumes Brister purchased the raw ingredients for the drug and that the state intends to have it compounded for the executions.”

The lawsuit alleges that the State of Mississippi will secretly compound the drugs at an unknown time and place, by people with unknown training and credentials. The danger, a lawyer for Byrom and Crawford explains, is that “[i]f the state’s pentobarbital is contaminated or sub-potent, prisoners will be conscious when the second and third drugs are administered, and they will experience a torturous death by suffocation and cardiac arrest.”

U.S. Supreme Court could act soon

Front doors of the U.S. Supreme Court
Front doors of the U.S. Supreme Court (Photo by the author.)

Also last week, Missouri executed a man using secretly sourced pentobarbital. His attorneys sought a stay from the U.S. Supreme Court, arguing that Missouri’s “secretive process prohibited the public from knowing exactly how the drug was made and whether it could cause pain and suffering for the inmate.”

The Supreme Court denied the motion for a stay on a 4-5 vote. A similar challenge garnered three votes in February. And a federal judge in Texas just yesterday issued two stays of execution over challenges to that state’s drug secrecy laws. But just hours later, an appeals court vacated her order, allowing the executions to proceed.

Tomorrow, the U.S. Supreme Court will consider for the second week in a row whether to review a case raising similar drug-sourcing issues in Louisiana. And it will also consider another Missouri execution case raising a similar challenge. Five Justices must vote to issue a stay of execution, but four votes is all it takes to grant certiorari, so last week’s close vote on the Missouri execution might be a signal of hope for the Louisiana case and others like it.

(Here’s a tidbit for readers interested in the obscure, perplexing Supreme Court “arithmetic of death.” In pending execution cases in which four Justices vote to grant review, there apparently had been an informal practice of a fifth Justice granting a “courtesy” vote for stay, so that the execution wouldn’t render the case “moot.” Supreme Court watchers say this practice ended by 1990. As a result, an inmate may be executed despite the Court’s decision to hear the case, which seems to be what happened last week.)

Committee issues strong recommendations on lethal drug sourcing

In its Concluding Observations released last week, the UN Human Rights Committee urges the United States to

“ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution.”

If the Supreme Court grants cert. in the Louisiana case, it will be the first body of the U.S. government to take action consistent with the UN Human Rights Committee’s recommendations issued last week, upholding our country’s human rights treaty obligations. It would be a great start to the long process of working on implementation of the Committee’s recommendations.

Committee issues further recommendations on the death penalty

The Committee also recommends that the United States consider establishing a moratorium on the death penalty at the federal level, and, on the 25th anniversary of the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty, consider acceding to the Protocol.

In summary, the Committee recommends that in addition to establishing a moratorium, acceding to the Protocol, and ensuring that legal drugs come from transparent, regulated sources, the United States:

1. take measures to effectively ensure that the death penalty is not imposed as a result of racial bias;

2. strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage;

3. ensure that retentionist states provide adequate compensation for the wrongfully convicted; and

4. engage with retentionist states with a view to achieving a nationwide moratorium.

As litigation challenging the death penalty around the country continues, The Advocates for Human Rights will work with civil society organizations and state and federal governments to press the Committee’s recommendations and work on implementation. We will continue to raise these and other issues during upcoming United Nations reviews, such as those scheduled by the UN Committee on the Elimination of Racial Discrimination in August, the UN Committee Against Torture in November, and the UN Human Rights Council’s Universal Periodic Review of the United States next January.

This post is one in a series of posts on the UN Human Rights Committee’s review of the United States.

More posts in this series:

Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record (The Advocates Post)

Access to Justice and the Bringing Human Rights Back Home Challenge (Human Rights At Home Blog)

Decades Later, No Justice for Kent State Killings (ACLU)

U.S. Human Rights Record Undergoes International Scrutiny (ACLU)

By: Amy Bergquist, staff attorney with the International Justice Program at The Advocates for Human Rights.