Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1(e) of the Convention. Racially discriminatory distinctions and the exaction of compulsory labour. In its previous comments the Committee has noted government statistical data, including Bureau of Justice Statistics Correctional Surveys, which show significant racial disparities in prison incarceration rates in federal and state prisons and local jails, including disproportionate numbers of African-American males subjected to arrests, convictions and sentencing in drug offences. Since a United States prison sentence normally involves an obligation to perform labour, the Committee has asked the Government to comment and supply information on any measures taken or contemplated to ensure that there is no racial, social or national discrimination in the imposition of prison sentences involving an obligation to perform labour.

The Committee notes from its latest report the Government’s assertion that in the United States prison context, forced labour is not the “means” of racial discrimination for purposes of Article 1(e) of the Convention, and therefore that “additional inquiries into the causes of disproportionate rates of arrest, conviction, and incarceration of African-American males are outside the purview of Article 1(e) of the Convention and therefore are not relevant to US compliance with the Convention”.

The Committee points out, however, that the scope of the Convention is broader than that suggested by the Government. The Committee recalls that in its General Survey of 2007, it explained that Article 1(e) requires the abolition of any discriminatory distinctions made on racial and other grounds “in exacting labour” for the purpose of production or service, and that situations in which “punishment involving compulsory labour” is meted out more severely to certain groups defined in racial and other terms, fall within the scope of the Convention.

The Committee notes that, in a communication dated 17 January 2008, the American Federation of Labor and Congress of Industrial Organizations
(AFL–CIO), submitted comments on the Government’s November 2007 report on the application of the Convention. A copy of this communication was forwarded to the Government on 12 February 2008 for any comments it may have wished to make on the matters raised therein. In its communication, the AFL–CIO raised the issue of racially discriminatory prison labour assignment practices within United States correctional institutions at the Federal, State, and local levels. It cites an independent research study by a research analyst with the Office of Research and Evaluation of the Federal Bureau of Prisons, published in 1997, finding the presence of racial disparities within job assignments at Federal correctional facilities; in particular, that African-American inmates “tend to be assigned to lower skilled and lower paying jobs”, and that Hispanic inmates are also “more likely to be assigned unskilled work” in comparison with white inmates. The study, using nine categories of prison inmate work as classified by the Government, designated work assignments and duties as either skilled or unskilled. The AFL–CIO further cited a number of court cases challenging these alleged practices, some based on statistical evidence that black inmates were disproportionately underrepresented in the most desirable prison work assignments, and evidence of racial disparities in pay levels within job categories. The AFL–CIO pointed out that these alleged practices have implications for goals of rehabilitation and the problems of recidivism, as “studies have shown that prisoners who received skilled work assignments while in prison are less likely to return to prison than those who were given unskilled assignments”.

The Committee hopes that in its next report the Government will comment on these allegations, and will provide any available statistical information concerning the distribution, by race, of skilled and unskilled prison work duties and assignments, in federal, state, county, and local prisons and jails, and that it will also supply updated information on the status and outcome of the court cases cited by the AFL–CIO in its communication, as well as any more recent court cases on this issue.

The Committee notes the United States Sentencing Commission (USSC), in its fourth report to Congress in May 2007 on the subject of federal cocaine sentencing policy, refers to the serious and continuing problem of racial disparities in sentencing for cocaine offenses, associated with what is known as the “100-to-1 drug quantity ratio”. The Congress, in adopting penalties under the Anti-Drug Abuse Act of 1986, differentiated between the two principal forms of cocaine – cocaine hydrochloride (powder cocaine) and cocaine base (crack cocaine) – in order to treat the latter more severely, with the result that 100 times as much powder as crack cocaine (in quantities of grams) is required to trigger the same five-year and ten-year mandatory minimum penalties. The Committee notes the finding of the USSC that: “Because of the 100-to-1 drug quantity ratio, the sentencing guideline penalties based solely on drug quantity … are three to over six time longer for crack cocaine offenders than for powder cocaine offenders with equivalent drug quantities …”, and that: “As a result of both the statutory and guideline differentiation between the two forms of cocaine, … the resulting sentences for offenses involving crack cocaine are significantly longer than those for similar offenses involving powder cocaine for any quantity of drug”. The Committee notes the Commission’s finding that: “Historically the majority of crack cocaine offenders are black,” as well as demographic data reported by the USSC, which show that, while African-Africans comprise approximately only 12.3 per cent of the United States population in general, in 2006 they comprised approximately 81.8 per cent of federal crack cocaine offenders, but only 27 per cent of federal powder cocaine offenses. The USSC stated in its report that: “Current data and information continue to support the core findings contained in the 2002 Commission Report, among them: … (4) The current severity of crack cocaine penalties mostly impacts minorities.”

The Committee notes the Commission’s strong and unanimous recommendations to Congress in its May 2007 report, that it: increase the statutory mandatory minimum threshold quantities for crack cocaine offenses in order to focus the penalties more closely on serious and major traffickers, and repeal the mandatory minimum penalty provision for simple possession of crack cocaine under the Anti-Drug Abuse Act of 1988. The Committee notes with interest that several bills have recently been introduced in Congress that target the disparity in penalties between crack and powder cocaine offenses and its racially discriminatory impact on sentence lengths. These include: The Powder-Crack Penalty Equalization Act of 2007 (H.R. 79), The Crack-Cocaine Equitable Sentencing Act of 2007 (H.R. 460), The Drug Sentencing Reform and Cocaine Kingpin Act of 2007 (H.R. 4545), and The Fairness in Cocaine Sentencing Act of 2008 (H.R. 5035).

The Committee hopes that in its next report the Government will be in a position to report on the adoption of this legislation, and that the Government will otherwise take steps to act on the recommendations of the USSC and to bring its law and practice into conformity with the Convention, and to report on such action taken.

Trafficking in persons. In its previous observation, the Committee asked the Government to supply updated statistics and data regarding the prosecution, conviction, and sentencing of trafficking offenders, including information on the progress of measures taken to increase the number of investigations and prosecutions and to involve state and local authorities in the anti-trafficking fight, as well as information on the outcomes of research and survey projects by the National Institute of Justice (NIJ), the research, development, and evaluation agency of the United States Department of Justice, concerning methods for detecting and investigating traffickers and legal challenges the Government encounters in prosecuting traffickers. The Committee also asked for updated information from the Government about measures it is taking to improve its capacity to identify, locate and rescue trafficking victims and to improve victim access to government services, including steps to improve inter-agency coordination of victim services.

In its latest report the Government refers to the Attorney General’s Annual Report to Congress and Assessment of the US Government Activities to Combat Trafficking in Persons, as well as the Web page of the NIJ on its international human trafficking research projects. The Committee has noted these reports and resources and the updated information they provide on the issues raised by the Committee as well as on other recent measures taken or initiated by the Government to combat trafficking in persons.

The Committee notes the Attorney General’s Annual Report to Congress for Fiscal Year 2007 (FY 2007) dated May 2008, and the series of recommendations it includes for FY 2008, which are prefaced by the statement: “To effectively rescue victims and alleviate the problem of human trafficking both in the United States and abroad, the US Government recognizes that it should take the following additional actions …”. The recommendations include actions to: create a pathway to citizenship for qualified “T visa” holders (i.e., trafficking victims who are eligible for “T non-immigrant status” as a form of immigration relief) through publication of a regulation for the adjustment of status for T visa holders; ensure that United States citizen victims are as vigorously identified, protected, and assisted as foreign nationals, including sufficient case management; increase inter-agency efforts to combat trafficking for labour exploitation, in addition to sex trafficking; ensure that law enforcement agents and service grantees, subcontractors, and partners collaborate expeditiously to identify victims, provide care, and secure immigration relief; develop educational materials on United States trafficking in persons (TIP) for dissemination through education and community based entities; continue to expand inter-agency coordination of TIP efforts including international funding; ensure child victims of severe forms of human trafficking (both foreign and United States citizens) are provided access to services and benefits regardless of their ability to assist law enforcement; and expand media campaigns.

The Committee also notes the July 2007 report of the United States Government Accountability Office (GAO) to Congressional Requesters, entitled Human Trafficking: A Strategic Framework Could Help Enhance the Interagency Collaboration Needed to Effectively Combat Trafficking Crimes. The GAO review, which was undertaken from June 2006 through June 2007, found that, although federal agencies have coordinated across agencies on investigations and prosecutions of trafficking crimes on a case-by-case basis, Department of Justice (DOJ) and Department of Homeland Security (DHS) officials have identified the need to advance and expand United States efforts to combat trafficking through more collaborative and proactive strategies to identify trafficking victims. To help ensure that the United States Government maximizes its ability to enforce laws governing trafficking in persons, the GAO recommended that the Attorney General and the Secretary of Homeland Security, with other agencies that support these enforcement efforts, develop and implement an overall strategic framework for investigating and prosecuting trafficking crimes that, at a minimum, defines and articulates a common outcome; establishes mutually reinforcing or joint strategies; agrees on roles and responsibilities; and establishes compatible policies, procedures, and other means to operate across agency boundaries. In addition, to enable the Bureau of Justice Assistance (BJA) to better support the federally funded state and local human trafficking task forces, the GAO recommended that the Attorney General direct the Director of the BJA to develop and implement a plan to help focus technical assistance to the task forces.

The Committee notes the information provided by the Government, including that discussed above, on measures taken or contemplated to improve its efforts to combat trafficking in persons.