Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative, noting that this was the first occasion on which a case concerning her country was examined by the Conference Committee, recalled that the United States had ratified the Convention in 1991 following a rigorous four-year review by the Tripartite Advisory Panel on International Labour Standards (TAPILS), a subcommittee of the President's Committee on the ILO, which was a high-level presidential advisory committee of tripartite composition. The TAPILS review of the Convention had involved an in-depth examination of its provisions, its negotiating history, the observations of the Committee of Experts and careful comparisons with United States law and practice. During the course of its review, TAPILS had submitted over 40 detailed written questions to the ILO to address a wide range of issues, and had held numerous meetings with ILO officials to clarify the meaning and scope of the Convention. In the end, it had reached the unanimous tripartite conclusion that United States law and practice fully conformed to all the obligations set forth in the Convention. The finding was in turn endorsed by the President's Committee, the President and the Senate.

During the TAPILS's review, an area of particular concern was Article 1(d), dealing with forced labour as a punishment for having participated in strikes. The question that arose was whether persons imprisoned for participating in strikes considered legal by ILO standards, but illegal under United States law, might be required to perform prison labour prohibited by the Convention. This situation could occur under United States law for certain non-essential public or private sector workers, such as teachers, who disobeyed a court order enjoining strike activity and who were subsequently imprisoned for being in contempt of court. She noted that the prohibition or restriction of strikes per se was not germane to the Convention and that penalties for striking were relevant to the Convention only when they included the imposition of forced or compulsory labour.

After a thorough examination of federal and state prison law and practice, TAPILS had found, first of all, that the imprisonment of strikers for contempt of court was a rare occurrence in the United States. Furthermore, persons jailed under these circumstances were considered "pre-trial detainees" rather than ordinary prisoners. She added that the Federal Bureau of Prisons regulations applicable to all federal prisons, as well as many state and local prisons, prohibited the imposition of forced or compulsory labour on pre-trial detainees. Federal guidelines developed by the Department of Justice urged all other state and local prisons to apply the same prohibition of forced labour. In addition, the American Corrections Association, the private organization most concerned with state and local prison practices, had developed accreditation standards that were nearly identical to the Bureau of Prisons regulations and the Department of Justice guidelines. All of these regulations and guidelines indicated that pre-trial detainees could not be required to work, other than doing housekeeping tasks in their own cells or in the community living area. TAPILS had been unable to find a single instance in which labour was exacted contrary to these guidelines. TAPILS had therefore reached the unanimous tripartite conclusion that persons imprisoned for contempt of court as the result of behaviour relating to an illegal strike were not subject to prison labour in violation of the Convention.

She explained that since 1997, her country had been engaged in a dialogue with the Committee of Experts about the application of Article 1(d). Noting that contempt of court could be classified as either civil or criminal, the Committee of Experts had asked about the status of persons imprisoned for criminal contempt. The Government had reported that TAPILS had examined in great detail the law and practice with regard to contempt of court, including an examination of actual instances in which individuals had been sent to jail as a result of contempt orders in labour strikes. It had explained that TAPILS had determined that, with regard to labour strikes, the treatment of individuals jailed as a result of criminal contempt did not differ from those individuals jailed for civil contempt. In the present observation, the Committee of Experts appeared to have accepted this explanation.

In paragraphs 7-10 of the observation, the Committee of Experts had introduced a new line of questions about the possibility that a person engaging in an illegal strike could be subject to forced labour, focusing on law and practice at the state and local levels. In particular, the Committee of Experts considered that certain provisions of the General Statutes of the State of North Carolina were contrary to Article 1(d). In response, based on a review of the legislation in question, she indicated that participation in an illegal strike by public employees in North Carolina was indeed classified as a Class 1 misdemeanour. A first-time offender was sentenced to "community punishment", which by law could not involve any jail or prison time. Community punishment, in most cases, only required the payment of a fine. A second, third or even fourth misdemeanour conviction was punishable by community punishment, by intermediate punishment (supervised probation) or by "active punishment", which the Committee of Experts noted involved imprisonment. She emphasized that it was important to understand that this type of conviction did not require a sentence of active punishment. But in any event, the sentence in this situation would be limited to 45 days, no matter what kind of punishment ordered. Sentences of less than 90 days, according to North Carolina law and practice, were served in county jails and not state prisons. She noted that the work requirement cited by the Committee of Experts related to the North Carolina state prison system, but that county jails had no similar work requirements.

Taking the example of a person with five or more previous misdemeanour convictions, who had nevertheless obtained employment with the State of North Carolina, and who had been found guilty of participating in an illegal strike, she explained that once again the sentencing options were community punishment, intermediate punishment or active punishment. However, in this instance, the sentence could be up to 120 days. If the sentence was active punishment and was over 90 days, then the person could be housed in a state correctional facility and therefore be required to work. But in the view of her Government and of the North Carolina legal authorities, this was a hypothetical scenario so remote that it was a virtual impossibility. Indeed, if this situation were to occur, the more serious sentence, and the possibility of prison labour, would be the consequence of the individual's recidivism, that is for engaging in activities resulting in multiple convictions, and not for mere participation in an illegal strike. Research had disclosed no history of strikes by public employees in North Carolina. There were consequently no known instances of any convictions of strikers under this law. Her conclusion was therefore that North Carolina law was in accord with the letter and spirit of the Convention, and that no modification of the legislation was warranted. She hoped that the Committee of Experts, after further study, would endorse this conclusion.

She reiterated that, in the course of its extensive review, TAPILS had never found a single instance at the federal, state or local level of forced labour in violation of Convention No. 105. Nor had any such instances come to light in the years since TAPILS had concluded its review. Notwithstanding the fact that in the future, as in the case of North Carolina, the remote, hypothetical possibility might be discovered that forced labour might be imposed on an illegal striker, she continued to believe that the original tripartite conclusion of TAPILS, upon which the ratification was based, remained valid, namely that United States law and practice were in full conformity with the Convention. Nevertheless, she added that the issues raised would be thoroughly examined in the Government's supplemental report to the Committee of Experts, which would, as usual, be prepared in consultation with the tripartite partners. The report would also address, to the extent that they were relevant to the Convention, the issues raised by the ICFTU. In conclusion, she emphasized that her Government took seriously its obligations relating to ILO Conventions and welcomed continued dialogue with the Committee of Experts and, when necessary, the present Committee.

The Worker members thanked the Government representative for her explanations. This case dealt with three different violations of the Convention, which had been ratified by the United States in 1991: forced labour of prisoners; the link between freedom of association and forced labour; and forced labour of migrant workers. The ICFTU communication provided concrete information on forced labour, the victims of which were migrant workers in United States dependent territories and migrant domestic workers in the United States. The Government needed to take the necessary measures so that migrant workers who went to the United States to live and work in all freedom were not abused and ill-treated by their employers.

Article 1(d) of the Convention required each ratifying country to eliminate forced or compulsory labour and not to use it in any form as a punishment for participating in strikes. This provision was important because it provided minimum safeguards to workers and trade unionists who used strikes as a means of last resort in order to defend their rights, interests and claims. It was unacceptable that strikers should be subjected to forced labour on the grounds of their trade union activity. The legislation of North Carolina specified that strikes by public employees were illegal and that participants involved in such strikes were liable to imprisonment involving the obligation to work.

As recalled by the Committee of Experts, there was only one exception to the prohibition specified in Article 1(d) of the Convention, namely essential services in the strict sense of the term. The extremely broad provisions contained in the general legislation of North Carolina did not allow this exception to be invoked and were contrary to Article 1(d) of the Convention. The Government should supply information on whether this kind of legislation existed in other states of the United States. It should take the necessary measures to ensure that the legislation was brought into conformity with the provisions of the Convention. This also applied to the legislation of the states. By ratifying the Convention 11 years ago, the Government undertook the obligation to remedy any contradictions if the need arose.

With regard to forced labour in prisons, the Committee of Experts referred only to the ICFTU communication, without formulating any observations on the allegations contained therein. The Committee of Experts no doubt wished to obtain clarifications from the Government regarding this point. The Government was therefore requested to provide written information to the Committee of Experts on the initiatives it intended to take to put an end to such a situation and to bring its law and practice into conformity with the Convention.

The Employer members indicated that, even though this was the first time that the Committee had examined a case concerning the United States, it would of course be dealt with in the same manner as any other case, namely on the basis of the information contained in the report of the Committee of Experts. While several paragraphs of the report of the Committee of Experts reproduced allegations transmitted by the ICFTU, one paragraph concerned the alleged exploitation of forced labour in the Northern Mariana Islands. The question arose as to why these allegations had been described by the Committee of Experts in detail, since it had correctly concluded that the Convention was not among the ILO standards which had been declared applicable to that territory by the United States. With regard to the allegations that migrant domestic workers had to perform forced labour, the Employer members emphasized that the Conference Committee could not assess the situation at this stage, as the Government had not yet had an opportunity to indicate its position on this point.

Point 5 of the observation of the Committee of Experts raised the issue of the possibility that persons detained for engaging in illegal strikes, and particularly those detained for contempt of court, would have to perform prison labour. In this respect, the Employer members noted the ruling by the Supreme Court concerning the distinction between civil and criminal contempt and its implications for the obligation to perform prison labour. In view of the obvious complexity of the issue, they referred to the indication by the Government representative that sentences of imprisonment for participating in illegal strikes and in purely labour-related disputes never occurred in practice. The Employer members noted that the Committee of Experts evidently entertained certain doubts on this matter, which had not been fully explained in its report. They also believed that the statement by the Worker members on this case amounted to an endeavour to reverse the burden of proof by calling upon the Government itself to identify other instances in which the Convention might be violated. In the view of the Employer members, this attempt to seek proof of the violation of the Convention directly from the Government was not justified.

With regard to the case of North Carolina, the Employer members observed that in the event of participation in illegal strikes in the public service, a Class 1 misdemeanour, a distinction was made between first offences, for which sentences of "community punishment" were incurred, and cases of second convictions, for which sentences of "active punishment", namely imprisonment, could be given. In this respect, the Committee of Experts had referred to its 1979 General Survey on the abolition of forced labour in stating that it was not incompatible with the Convention to impose penalties (even if they involved an obligation to perform labour) for participation in strikes in the civil service or essential services, provided that such provisions were applicable only to essential services in the strict sense of the term, that is services whose interruption would pose a clear threat to the life, personal safety or health of the whole or part of the population. However, the Employer members observed that there was a divergence between the wording given in the observation and that of the original General Survey. Even though this point was not essential for the evaluation of the present case, it was curious and inadmissible to pretend to quote from a general survey and then not to use the correct wording. They added that, despite its general support for strike actions, the Committee of Experts had acknowledged limitations to this right in its definition of "essential services". In this respect, it was the view of the Employer members that it was the right and duty of every State to develop its own definition of the term "essential services" as part of its obligation to protect its population as a whole and all individual citizens. The current definition cited by the Committee of Experts was therefore too narrow, and the definition should also cover civic and cultural aspects and property. Further reflection on this issue was not however important in the present case.

Returning to the case of North Carolina, the Employer members noted that the situation described under point 8 of the report of the Committee of Experts clearly did not represent a mass phenomenon. Moreover, such a situation could give rise to different legal interpretations. The Employer members were in disagreement with the Committee of Experts on this point and considered that such imprisonment did not constitute a violation of the Convention if it was a result of another punishable act in addition to participation in a strike. Moreover, it was immaterial whether such acts were concomitant or consisted of several distinct punishable acts. Moreover, the fact that participation in a strike was one of the punishable acts should not result in the exemption of the person concerned from a specific sentence for the other misdemeanour. They therefore invited the Committee of Experts to reflect this aspect of the case in its report and indicated that they did not currently see any violation of the Convention in this respect. They added that there was a difference in the interpretation of the facts of the case. In its report, the Committee of Experts had stated that prison labour could be required from detainees following a second conviction, while the Government representative had stated that this was the case only upon a fifth conviction and provided that the sentence was over 90 days in length. The situation required clarification in this respect.

In conclusion, they called for the Government to submit the relevant information in a written report to the Committee of Experts so that it could evaluate the case. A final evaluation of the situation was not possible at the present time.

The Worker member of the United States expressed his gratitude to the Government representative for her very technical and detailed comments and for signing up early in the week to discuss this case, which would facilitate the work of the Committee. He emphasized that this was an historic moment in the Committee, as the first time that a case concerning the United States had ever been discussed. The labour movement in the United States looked forward to the day when it would ratify many more ILO Conventions and a discussion of an American case from time to time in the Committee, when questions of application arose, would be a routine matter.

He indicated that this case had two or three general aspects. First, there was the question of whether according to law, especially state law in North Carolina, there was the possibility that a worker imprisoned for violating a no-strike injunction could be subject to criminal charges and, if convicted, subjected to prison labour in violation of Article 1(d). Secondly, there was the question raised by the Committee of Experts concerning forced labour by migrant workers in the United States, and especially in the Northern Mariana Islands.

Regarding the first aspect of the case, the position of the Government seemed to be that the concerns of the Committee of Experts regarding the possibility of a worker in North Carolina being imprisoned and subjected to forced labour for participation in an illegal strike were unfounded. His Government argued that there had never been an actual case of a public employee in North Carolina being placed under arrest for participation in strike activity and then forced to work. So, according to the Government, the United States was in compliance with Article 1(d) of the Convention in both law and practice. In this respect, he provided some additional information regarding the situation in North Carolina. A new state law stripping all public employees, without distinction, of their right to strike had been enacted in the early 1980s to head off a possible collective action by public health care workers. The breadth of the ban went well beyond what the Committee of Experts described in paragraph 9 as essential services in the strict sense of the term (that is, services whose interruption would pose a clear threat to the life, personal safety or health of the whole or part of the population). So public employees in North Carolina, in clearly non-essential industries as defined by the ILO, having engaged in illegal collective actions could be subjected to arrest, conviction and possible prison labour.

He conceded that he had not been able to find any case of this actually happening. Nonetheless, he remained concerned that at least one state had applied an overly broad interpretation of essential services by ILO standards and that by doing so had created the possibility that any striking state employee could be subject to criminal conviction and forced labour. It was his view that such overly broad state prohibitions on the right of public employees to take collective action severely undermined their right to organize and bargain collectively. He called on his Government to submit information to the Committee of Experts as to whether such broad strike prohibitions had been enacted in other states in addition to North Carolina. He also wished to obtain information on whether any such state laws provided for the punishment of striking public employees found to be in violation of such broad bans of the right to strike by subjecting them to prison labour.

Regarding the second aspect of the case, he referred to the statement of the Government representative that the Convention did not apply to the Northern Mariana Islands as a territory of the United States. Nonetheless, he believed that there were some very important issues regarding the treatment of migrant workers in the Northern Mariana Islands relating to his country's obligation under Article 1(b) "to suppress or not make use of any form of forced or compulsory labour (...) as a method of mobilising and using labour for the purpose of economic development". Statements made by political leaders in the Northern Mariana Islands and by members of the United States Congress had made it quite clear that a major justification for developing a garment industry dependent on migrant labour was the economic development of the territory. He recalled in this respect that the United States had administered the Northern Mariana Islands on behalf of the United Nations from 1947 to 1986, when they had come under United States sovereignty pursuant to a covenant approved in a United Nations supervised plebiscite. The covenant had not immediately extended federal immigration and minimum wage laws to the Islands but provided that Congress could apply federal immigration and minimum wage laws to the Northern Mariana Islands upon termination of the trusteeship agreement, which had occurred in 1986. Since 1986, the temporary immigration and wage privileges granted under the agreement and other trade privileges, had been used to develop a garment industry based on the ability of these Islands to ship products duty free and without quotas into the United States. Contributing to the rapid growth of the industry was the fact that the minimum wage on the Islands was and remained significantly lower than in the United States. In addition, the Islands' own immigration laws had made it easy to import foreign workers, primarily from China and Viet Nam, to work in the garment factories. Such workers were indentured because they were admitted solely by virtue of their employment contract with a specific and sole employer or "master", who was in control of the duration of their stay. If a worker displeased the employer, the contract was terminated and the worker had to leave. These migrant workers now constituted far more than half the population of the Islands.

The stories of exploitation, abysmal working and living conditions, and exorbitantly high labour broker fees had been well documented in the international press over the past few years. What existed today was a sweatshop industry producing for many of the country's best known retailers, which was able to ignore United States minimum wage laws and which had unlimited access to the United States market. Many imports from the Northern Mariana Islands even had "made in the US" labels.

He believed that his Government could do more to end such exploitative conditions. First it could be much more aggressive in enforcing safety and health standards and the Fair Labour Standards Act. Secondly, it should introduce federal legislation to end the temporary minimum wage and immigration privileges and extend federal immigration and minimum wage laws to the Northern Mariana Islands. He called on his Government to introduce such legislation without delay. Finally, he indicated that his Government should take these measures, not because it had a treaty obligation to do so, but because they were the right things to do to ease the suffering of tens of thousands of foreigners living and working in the territory of the United States.

The Worker member of India referred to the discriminatory treatment by the Government of migrant workers in the Northern Mariana Islands. The discrimination suffered by these workers was such that two sets of minimum wages were applied, one of which was applicable to migrant workers. These workers had to pay high fees to employment agencies which recruited them from such countries as Bangladesh, China, Indonesia and the Philippines. They were required to sign agreements with employers stipulating the period for which they had to serve, the fact that they could not demand any wage increases and that they could not join a union. This meant that the wages and working conditions available to nationals of the United States were not applicable to them. Moreover, if they violated these agreements, they had to pay their own expenses to return to their countries. This amounted to serious exploitation by a country which was foremost in the world. Furthermore, such unfair labour practices were in violation of the Convention which had been ratified in 1991. He called for an inquiry by the ILO to ascertain the truth and recommend the appropriate action. In addition, he also strongly protested against the practice prevalent in the United States of privatizing prisons and allowing private prison managers to exploit prison labour.

The Government representative stated that she had taken note of the statements of the Worker and Employer representatives. She indicated that the was preparing a supplementary article 22 report on the Convention. Her Government intended to continue the dialogue and would respond to the comments made in the discussion in respect of all issues relevant to the application of the Convention. She emphasized that her Government would fully participate in the process of supervising the application of international labour standards.

The Employer members considered that the case was fairly clear and that the report of the Committee of Experts had been descriptive, without reaching concrete conclusions. With regard to the calls that had been made for the application of the Convention to be extended to the Northern Mariana Islands, they recalled that this was a matter of national policy which lay within the discretion of the Government. The Committee clearly did not have the right to consider such matters of national policy. Noting the indication by the Worker member of the United States that there was no known instance of the law in North Carolina being applied in the manner referred to by the Committee of Experts, they once again emphasized that there was no justification for requesting the Government to indicate the situation in other states. This amounted to endeavouring to reverse the burden of proof. The only conclusion that the Conference Committee could reach in this respect was to ask the Government to provide all the information requested in a detailed report for further examination by the Committee of Experts. The Conference Committee should not request the Government to review its current legislation in the light of the Convention until the actual situation was clarified. Only then, could a final assessment of the case be undertaken.

The Worker members once again requested the Government to provide more information on the questions raised and on the measures taken to resolve them. There was no doubt that the North Carolina legislation, which provided for imprisonment involving compulsory labour for participating in strikes, was contrary to the Convention. The Government needed to amend its legislation and inform the Committee of Experts on the existence of any similar legislation in other states. This was not a reversal of the burden of proof, but simply a request for information.

The Committee noted the information provided by the Government representative and the discussion which followed. With regard to the legal possibility to punish persons sentenced for having refused to obey an injunction prohibiting strike action, the Committee expressed the hope that the Government would provide information on the situation in law and practice, and that it would report on any action taken to ensure compliance with the Convention in North Carolina, and more generally to prevent any violation of Article 1(d).

With regard to the working conditions of migrant workers, the Committee noted the views of the Government and the information provided during the discussion, which would be reported to the Committee of Experts for its next examination of the application of the Convention by the United States, in addition to any supplementary information that might be made available to the Committee of Experts in the light of the discussion.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1, subparagraph e, of the Convention. Racial discrimination in the exaction of compulsory prison labour. In its previous direct requests the Committee has noted data published by the Bureau of Justice Statistics of the US Department of Justice, showing significant racial disparities in the US criminal justice system, including the significant overrepresentation of African–Americans and Latinos/Hispanics within US prison populations. The Committee recalls that, in its General Survey of 2007, it pointed out that, even where the offence giving rise to the punishment is a common offence which does not otherwise come under the protection of Article 1(a), (c) or (d) of the Convention, but the punishment involving compulsory labour is meted out more severely to certain groups defined in racial, social, national or religious terms, this situation falls within the scope of the Convention. Since a prison sentence in the United States 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 that, apart from information about measures it is taking to examine federal sentencing and corrections policy, formulate a new federal cocaine sentencing policy, and make recommendations on amendments to cocaine sentencing legislation, which is discussed below, the Government has provided little information on this matter. The Committee notes with interest from federal and State Government Internet sites information concerning a number of recent measures in this realm. They include the following:

–           At the federal level, the Justice Integrity Act of 2009 (S.495 and H.R. 1412), a bill “to increase public confidence in the justice system and address any unwarranted racial and ethnic disparities in the criminal process,” was introduced in Congress in February of 2009. The bill requires the US Attorney-General to: (1) establish a pilot programme in ten US districts to promote fairness and the perception of fairness in the federal criminal justice system and to determine whether legislation is required; and (2) designate a US attorney in each of the districts to implement a plan for carrying out such pilot programme. The bill requires each US attorney designated to implement a pilot programme to appoint an advisory group consisting of judges, prosecutors, defence attorneys, and other individuals and entities who play an important role in the criminal justice system; and it requires each advisory group to: (1) collect and analyse data on the race and ethnicity of defendants at each stage of a criminal proceeding; (2) seek to determine causes of racial and ethnic disparities in the criminal justice process, and whether these disparities are … at least partially attributable to discrimination, insensitivity, or unconscious bias; and (3) submit to the US attorney a report and proposed plan for addressing such disparities. Each US attorney is required to annually evaluate the efficacy of a plan submitted by an advisory group, and the Attorney-General is required to: (1) prepare a comprehensive report on all advisory group plans and submit such report and plans to Congress; and (2) exercise continuing oversight of the criminal justice system to reduce unwarranted racial and ethnic disparities and improve such system.

–           In Wisconsin, a State in which African-Americans comprise 6 per cent of the overall population but represent 45 per cent of the population in adult Department of Corrections (DOC) facilities, an Executive Order, issued by the Governor on 21 March 2007, led to the creation of the Commission on Reducing Racial Disparities in the Wisconsin Justice System (CRRD), with a mandate to “determine whether discrimination is built into the criminal justice system at each stage of the criminal justice system continuum of arrest through parole” and to “recommend strategies and solutions to reduce the racial disparity in the Wisconsin criminal justice system”. The Commission held informational meetings, conducted public hearings, reviewed submissions, studied reports of similar commissions elsewhere, and studied sentencing practices and utilization of alternative dispositions, and it then issued a comprehensive report. The Committee notes that among the Commission’s finding were the following: “The Commission finds that the racial disparities within the criminal justice system are a serious problem that should be addressed regardless of whether they arise by chance or from intentional discrimination. The numbers of citizens who spoke at public hearings or wrote to the Commission offering personal examples of discrimination have raised significant concerns that discrimination exists.” The Committee further notes the Commission’s finding that there was a critical need for more data: “Throughout its deliberations, the Commission has heard testimony and has noted the need for data and information on which to base recommendations for changes that will reduce disparity in the justice system. Whether it is as a result of the exercise of discretion by law enforcement officers, prosecutors, or judges, the need for accurate information on which to base systemic policies and changes has been a source of frequent testimony.” The Commission therefore recommended that: “a state-wide scheme should be developed and utilized to collect data on race and ethnicity at all points in the criminal justice system process”; that: “throughout the State, we must increase and improve the validity and reliability of data, for example, collecting and making data available”; and that “local jurisdictions must develop a tracking system to identify race and age at all stages of contact with the justice system”. The Commission also recommended, inter alia, that: “The [State] Office of Justice Assistance, the State Prosecutor’s Office and the [US] Department of Justice’s SPET [State Prosecutors Education and Training Program] office should collaborate to develop and offer training on conscious or unconscious racism and the danger of institutional bias in the juvenile and criminal justice systems at all SPET conferences”, and that: “Judges should report the appearance of any pattern and practice of disparate treatment by any actor involved in policing, charging decisions, sentencing recommendations, or any court proceeding, to the appropriate chief executive officer and/or agency head.” In May 2008, the Governor issued Executive Order 251, creating the Racial Disparities Oversight Commission to ensure that recommendations of the CRRD were implemented and to “exercise oversight and advocacy concerning programs and policies to reduce disparate treatment of people of color across the criminal justice spectrum”.

–           In Connecticut, the State Government enacted “racial impact” legislation in June 2008, involving the adoption of a new legislative rule allowing the Connecticut General Assembly, beginning with the 2009 session, to consider the potential racial or ethnic impact of criminal justice legislation before it becomes law. The rule provides that whenever a legislative committee approves a bill which, if passed, would increase or decrease the pre-trial or sentenced populations of state corrections facilities, a majority of that committee may vote to require that a “racial and ethnic impact statement” be prepared by the legislature’s non-partisan staff. Within ten days, the report would have to determine, if possible, whether the bill would have a disparate impact on the racial and ethnic composition of the correctional facility population, and an explanation of that impact. Any racial and ethnic impact statement prepared for a bill would be solely for the purpose of information, summarization and explanation for members of the General Assembly. Connecticut became the second State in the nation, after Iowa, to enact such a legislative rule.

–           In Iowa, a State in which African-Americans make up 2 per cent of the population but 24 per cent of the prison population, the State Government in April 2008 enacted a bill, House File 2393, requiring a “minority impact statement” for any new or amended legislation relating to public offences, or changes to sentencing, parole and probation procedures. The law requires that an impact statement be attached to any bill, joint resolution, or amendment which proposes a change in the law which creates a public offence, significantly changes an existing public offence or the penalty for an existing offence, or changes existing sentencing, parole, or probation procedures. The statement must include information concerning, inter alia, “the impact of the legislation on minorities”.

–           In Illinois, a State in which as revealed by a 2007 study African–Americans are nine times more likely to be incarcerated than whites, the State Government in October 2008 enacted Public Act 95-0995, creating the Illinois Disproportionate Justice Impact Study Commission. Its mandate is to: (1) study the nature and extent of the harm caused to minority communities through the practical application of the violation and sentencing provisions of the Criminal Code of 1961 and other criminal laws; (2) develop specific findings on the nature and extent of the harm caused to minority communities; and (3) offer recommendations for legislation and policy changes to address the disproportionate impact that even facially neutral laws can have on minority communities. The Commission members were to begin their work in September of 2009.

–           In Minnesota, the Minnesota Sentencing Guidelines Commission in its “Report to the Legislature 2009” endorsed the preparation of racial-impact “notes” on proposed crime bills for the legislature and explained the potential usefulness to policy-makers of racial impact assessments: “If a significant disparity in racial impact can be predicted before a bill is passed, it may be possible to consider alternatives that enhance public safety without creating that disparity. Just as with the Commission’s fiscal impact notes, the agency does not comment on whether or not a particular bill should be enacted. Rather, it is setting out facts that may be useful to the Legislature, whose members frequently express concerns about the disparity between the number of minorities in our population and the number in our prisons”. The Commission also referred to a major state-wide research project on race as a cause of the racial disparity in the prison system: “Our Commissioners are determined to examine racial disparity in our prison populations in a sophisticated, state-wide research project that will provide facts to allow real understanding of whether and how race affects imprisonment in Minnesota. We are collaborating with experts from the University of Minnesota Law School, and with State Court researchers on this project.”

The Committee asks that in its next report the Government comment on the measures noted above, and that it supply information regarding the application of the laws enacted and rules referred to and of the procedures set up to evaluate the racial impact of proposed sentencing and other criminal justice legislation, as well as proposals for legislative alternatives, including copies of reports prepared under the various reporting and oversight mechanisms noted above. The Committee hopes that the Government will soon enact the Justice Integrity Act and that other state governments take measures similar to those noted above, including measures to review laws, policies and practices that may not be discriminatory in purpose, but in effect, so as to ensure that racial discrimination at the sentencing and other stages of criminal justice process does not result in the imposition of racially disproportionate prison sentences involving compulsory labour, and that its law and practice is thereby brought into conformity with the Convention. The Committee asks that in its next report the Government provide information on the progress of such measures. Noting the Government’s indication that it “is committed to … working to root out any unwarranted and unintended disparities that may exist in the criminal justice process”, the Committee asks the Government to provide detailed information about the steps it is currently taking or contemplating in that vein.

Racial discrimination in federal cocaine sentencing policy. In its previous direct request the Committee noted that the United States Sentencing Commission (USSC), in its May 2007 report to Congress, referred to the serious and continuing problem of racial disparities in sentencing for cocaine offences, stemming from penalty provisions adopted by Congress under the Anti-Drug Abuse Act of 1986. The Committee noted the Commission’s recommendations that Congress take steps, inter alia, to increase the mandatory minimum threshold quantities for crack cocaine offences in order to more narrowly focus the penalties on serious and major traffickers and to repeal the mandatory minimum penalty provision for simple possession of crack cocaine under the Anti-Drug Abuse Act of 1988. The Committee noted with interest that several bills had been introduced in Congress that target the disparity in penalties between crack and powder cocaine offences and the discriminatory impact of these penalties on sentence lengths. The Committee hoped that in its next report the Government would be in a position to report on the adoption of this legislation, and would otherwise take steps to implement the recommendations of the Commission, in order to ensure its law and practice were brought into conformity with the Convention, and to report on such action taken.

The Committee notes with interest the Government’s indications in its latest report that in April of 2009 the Attorney-General of the United States asked the Deputy Attorney-General to form and chair a working group to examine federal sentencing and corrections policy and was expected to focus on formulating a new federal cocaine policy that eliminates the current sentencing disparity between crack and power cocaine offences while taking into account case-specific aggravating factors such as violence, weapons, and recidivism; and that the group’s search for a workable solution to this issue was to include close cooperation with the Congress and the USCC, as well as making recommendations on federal sentencing legislation to the President. The Committee also notes with interest the reference by the Government that Congress was actively considering the issue of federal cocaine sentencing disparities; that a series of five bills on this issue introduced in the House of Representatives in the current congressional session; and that at two hearings held on the bills a representative of the Justice Department testified and expressed the Government’s view that Congress’ goal should be to eliminate completely the sentencing disparity between crack cocaine and powder cocaine offences. The Committee asks that in its next report the Government provide information on the progress of the activities of the working group as they relate to formulating a new federal cocaine sentencing policy and to making sentencing legislation recommendations, and on its cooperation on this issue with the Congress and the USCC, as well as information on that status of the pending bills it has referred to on this issue. The Committee hopes that the Government will be able to report on the adoption of new or amended legislation on federal cocaine sentencing policy.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1(c) and (d) of the Convention. Sanctions involving compulsory labour for participation in strikes. In observations addressed to the Government since 2002, the Committee has noted that, under article 12, section 95-98.1, of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the State. Under section 95-99, any violation of the provisions of article 12 is declared to be a Class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a Class 1 misdemeanour may be sentenced to “community punishment” and, upon a second conviction, to “active punishment”, that is, imprisonment. The Committee has noted the Compendium of Community Corrections Programs in North Carolina, published by the North Carolina Sentencing and Policy Advisory Commission, which explains that the imposition of community punishment may include assignment to the State’s Community Service Work Program (CSWP): “The CSWP is an alternative to incarceration imposed as part of a community punishment or Driving While Intoxicated (DWI) sentence, or in some cases as the sole condition of unsupervised probation.” The report states elsewhere: “CSWP is a community punishment. It is also used as a sanctioning tool at every stage of the criminal justice system … CSWP requires the offender to work for free for public or non-profit agencies in an area that will benefit the greater community.” The Committee has also noted that article 3 (Labor of Prisoners), section 148-26, of Chapter 148 (State Prison System) declares it to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them.

The Committee notes that in its latest report the Government repeats its indication that court records reveal no cases in which any worker has ever been convicted under these provisions for engaging in an illegal public sector strike. The Committee trusts that, given the Government’s indication that these provisions have lain dormant and never been applied in practice, appropriate measures will be taken to amend or repeal them, and the law will be brought into conformity with the Convention. Considering also the chilling effect that a general prohibition of strikes linked to criminal penalties involving compulsory labour may have on public sector workers who might otherwise decide to engage in strikes, the Committee urges the Government to take such measures without further delay. Noting also a communication dated 25 August 2009, sent by the Government to the North Carolina Department of Justice, in which it has forwarded the observations of the Committee to the State Government, the Committee hopes that in its next report the Government will be in a position to provide information on the progress achieved in this regard.

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.

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

Article 1(c) and (d) of the Convention. Sanctions involving compulsory labour for participation in strikes. In observations addressed to the Government since 2002, the Committee has noted that, under article 12, section 95-98.1, of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the state. Under section 95-99, any violation of the provisions of article 12 is declared to be a class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a class 1 misdemeanour may be sentenced to “community punishment” and, upon a second conviction, to “active punishment”, that is, imprisonment. The Committee has noted the Compendium of Community Corrections Programs in North Carolina, published by the North Carolina Sentencing and Policy Advisory Commission, which explains that the imposition of community punishment may include assignment to the state’s Community Service Work Program (CSWP): “The CSWP is an alternative to incarceration imposed as part of a community punishment or DWI sentence, or in some cases as the sole condition of unsupervised probation.” The report also states: “CSWP is a community punishment. It is also used as a sanctioning tool at every stage of the criminal justice system … CSWP requires the offender to work for free for public or non-profit agencies in an area that will benefit the greater community.” The Committee has also noted that article 3 (Labor of Prisoners), section 148-26, of Chapter 148 (State Prison System) declares it to be the public policy of the state of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them.

The Committee notes from its latest report the Government’s repeated assertion that no North Carolina public employee has ever been, or is likely to be, prosecuted under the law in question, and the Committee’s concern remains “hypothetical”, and that “no measures need to be taken to change that state’s law”. The Committee is bound to repeat its observation that the provisions of North Carolina law and policy discussed above contravene Article 1(d) of the Convention. Taking into account the Government’s assertions about the dormancy of the law in question, the Committee trusts it will be all the more cognizant of the need for measures to bring the state’s law into conformity with the Convention, and it urges the Government to do so without further delay.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 1(d) of the Convention 

1. In its previous direct requests, the Committee has noted the statement of the Government representative to the Conference Committee in June 2002, indicating that, after a thorough examination of federal and state prison law and practice, the Government’s Tripartite Advisory Panel on International Labour Standards (TAPILS) had found that the imprisonment of strikers for contempt of court was a rare occurrence in the United States. The Committee noted the further assertion that persons jailed under these circumstances were considered “pre-trial detainees” rather than ordinary prisoners; that Federal Bureau of Prisons Regulations and other federal guidelines prohibited the imposition of forced or compulsory labour on pre-trial detainees; and that TAPILS had been unable to find a single instance in which labour was exacted contrary to these guidelines. The Committee took note of these indications and the conclusions reached by TAPILS with regard to the treatment in practice of persons sent to jail as a result of contempt orders in labour strikes. Noting, however, that its mandate was to ascertain the compliance of both law and practice with ratified Conventions, the Committee requested the Government to supply further information and explanations regarding relevant state legislation, including legislation in the states of Michigan, Missouri and Nevada, as well as any measures taken or contemplated to ensure their conformity with the Convention.

2. The Committee notes the Government’s indication in its latest report that the laws in question of the states of Michigan, Missouri and Nevada, “do not and should not raise any issues of concern” under the Convention, and its suggestion that this is so because “[no] actual problems have ever arisen or have ever threatened to arise” in these states.

Michigan 

3. In its previous comments the Committee referred to sections 423.202 and 423.202a of the Michigan Compiled Laws [Public Employment Relations Act of 1947, as amended] which, taken together with other legal provisions, prohibit strikes by public employees, enforce the ban on such strikes by means of mandatory court injunctions, and punish defiance of such injunctions with contempt rulings that may involve the imposition of compulsory labour. The Committee notes the Government’s indication that section 423.202a(10) of the Michigan Compiled Laws “has been construed and applied by the courts of that state” as requiring a showing of “violence, irreparable injury, or breach of the peace”, and thus “in such a way that imprisonment for violation of a strike-related injunction is permitted only under circumstances that are strikingly similar to those recognized as ‘special circumstances’ by the Committee”.

4. The Committee considers that the criterion of “breach of the peace”, cited by the Government as one of the prerequisites under Michigan law for the issuance of injunctions in public teacher strikes, is too vague to enable the Committee to ascertain whether it might have a bearing on the application of the Convention. It therefore requests the Government to supply further information on the application by the courts of this criterion including copies of relevant court decisions. The Government is otherwise requested to indicate any measures taken or contemplated in order to ensure that no penalties involving compulsory labour can be imposed for having participated in strikes.

Nevada

5. In its previous comments, the Committee drew the attention of the Government to certain provisions of Nevada state law. It noted, among other things, that under section 211.120 of the Nevada Revised Statutes, the board of county commissioners and the governing body of an incorporated city shall make all necessary arrangements to utilize the labour of prisoners “committed” to any jail within any county, city, or town within the state, for a term of imprisonment by the judges of the several district courts within the state or the justices of the peace in any township throughout the state, whereas under section 211.130, all prisoners “sentenced” by the judge of any district court, or by the justice of the peace of any justice’s court, and sentenced to a term of imprisonment in any county, city or town jail or detention facility shall be deemed to have been also sentenced to labour during such term, unless the judge or justice of the peace sentencing the prisoner, for good cause, orders otherwise.

6. The Committee notes the reference by the Government in its report to section 211.130.1 of the Nevada Revised Statutes Annotated, under which a prisoner’s incarceration is deemed to include labour only if the prisoner is “sentenced to a term of imprisonment”, and its view that, “Because an officer of an employee organization who is jailed for disobeying a no-strike injunction is not ‘sentenced to a term of imprisonment’, but instead retains for all practical purposes the keys to his or her continued confinement, he or she may not be required to perform inmate labour.” The Committee would be grateful if the Government would also supply comments and information that clarify, in relationship to section 211.130 on “sentenced” prisoners, the meaning and practical application of section 211.120 of the Revised Nevada Statutes, in so far as it provides for the utilization of the labour of the prisoners “committed” to any jail within any county, city, or town within the state, for a term of imprisonment.

Article 1(e)

7. In its previous comments the Committee noted government statistical data showing racial disproportionalities in the composition of inmate populations and 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 prison sentence normally involves an obligation to perform labour, the Committee asked the Government to comment on the data and 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.

8. The Committee notes the Government’s indication in its report that, “U.S. law and policy clearly prohibit racial discrimination in the criminal justice system”, and that it cites the equal protection guarantees under the United States Constitution. It suggests that the United States law provides for several procedural mechanisms by which redress for racially discriminatory prison sentencing may be sought on equal protection grounds, including individual claims as well as lawsuits the Attorney‑General may initiate, which challenge patterns and practices of conduct by law enforcement authorities that deprive prisoners of their constitutional rights. The Committee would appreciate being supplied statistical data and other information from the Government about the actual use of such mechanisms to assert claims of racial discrimination in prison sentencing.

9. The Committee notes the report of November 2004 of the United States Sentencing Commission, “Fifteen Years of Guidelines Sentencing”, which, in part, addresses the issue of racial and other forms of discrimination in the federal sentencing process, in relation to the 1984 Sentencing Reform Act and the system of federal mandatory sentencing guidelines the latter provided for. The Committee notes the acknowledgement in that report, that: “Concern over possible racial or ethnic discrimination in federal sentencing remains strong today, 15 years after implementation of guidelines designed to eliminate it”. The Committee notes the further indication that: “It is clear that the Commission must address these concerns and identify whether discrimination based on demographic status persists and, if so, how it is manifested and what can be done to eliminate it”. Regarding research studies carried out on the question of discrimination under the sentencing guidelines, the report indicates that: “Different studies yield different answers as to whether discrimination influences sentences at all and, if so, how much. These studies also disagree on which racial and ethnic groups are discriminated against and exactly where in the criminal justice process this discrimination occurs”. The Committee hopes that the Government will in its next report provide comments about the role and impact of the system of federal sentencing guidelines and other aspects of sentencing reform on racial and other forms of discrimination in federal sentencing, and that it will also supply information concerning measures the United States Sentencing Commission is taking to identify the causes of such discrimination and to determine why it persists, how it is manifested, and what can be done to eliminate it, as well as information regarding the latest research studies on racial and other forms of discrimination in the sentencing process and in the criminal justice system generally.

10. The Committee notes the 2006 report of the United States Department of Justice, “Juvenile Offenders and Victims: 2006 National Report”, which cites research findings that “minority (especially black) youth are over-represented at most stages of the juvenile justice system”, and it identifies “a challenge for research to determine if there is a unique effect of discrimination on justice system decision-making”. The report indicates that the Juvenile Justice and Delinquency Prevention Act (JJDPA) requires states to assess their level of disproportionate minority confinement (DMC), and that a 2002 amendment to the JJDPA, “recognizing that disparity may exist at many decision points (not just detention and corrections)”, broadened the DMC concept from “confinement” to “contact”. The report explains that, “Under this new conceptualization, as youth pass through the different stages of the juvenile justice system, they make contact with a series of decision-makers, each of whom could render a decision that potentially could result in racial disparity. Measuring the disparity at each decision-making point gives a better understanding of where disparity is introduced and/or magnified in the handling of cases by the juvenile justice system.” The report also refers to a new tool developed by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) called the DMC Relative Rate Index (RRI), which is intended to measure the levels of disparity at each decision point. The Committee hopes that the Government will supply information concerning the application of the revised DMC statistical method under the Juvenile Justice and Delinquency Prevention Act, as well as the use of the DMC Relative Rate index tool by the Office of Juvenile Justice and Delinquency Prevention, including information about how these tools are being used to help determine the extent to which discrimination accounts for racial disparities in the sentencing and confinement of youth offenders and otherwise affects justice system decision-making, and how they may also be used to help identify its sources.

Trafficking in persons

11. In its previous observations the Committee noted the Government drew attention to the Trafficking Victims Protection Act of 2000 (TVPA), as supplemented by the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003 and the Trafficking Victims Protection Reauthorization Act of 2005, which created new federal crimes, including a “forced labour” crime in a new section 1589 inserted in Title 18 of the United States Code, and which also strengthened penalties for trafficking-related offences and afforded new protection and expanded services to trafficking victims. The Committee also noted that an Interagency Task Force to Monitor and Combat Trafficking in Persons was established in February 2002, and a report from the task force indicating that, “Since the enactment of the TVPA in October 2000, the Department of Justice (DOJ) prosecuted 79 traffickers in FY [fiscal year] 2001 and 2002, three times as many as the previous two years, opened 127 investigations of trafficking cases, and conducted the largest ever training for federal prosecutors and agents in October 2002.”

12. Noting also Congressional findings on trafficking incorporated into the TVPA, which, among other things, indicated that approximately 50,000 women and children are trafficked into the United States each year, the Committee asked the Government to supply further details on the measures being taken by the Government to prosecute trafficking offences and to protect rather than punish the victims of such offences, including information on the outcome of the 79 prosecutions and 127 investigations in fiscal years 2001 and 2002 referred to in the Government’s report.

13. The Committee notes the references made by the Government in its report to reports of the Department of Justice (DOJ) from 2004 and 2005. The Committee also notes a September 2006 report of the DOJ entitled, “Assessment of U.S. Government Efforts to Combat Trafficking in Persons in Fiscal Year 2005.” The latter report cites statistics showing that, in 2005, 139 trafficking investigations were pursued, ten more than in 2004; that these led to prosecutions under the TVPA involving 27 cases in which 83 defendants were charged (in comparison to ten cases and 24 defendants charged in 2004), and which, in turn, led to 26 convictions, in comparison to 15 in 2004. The report includes a breakdown of the sentences imposed: “Of the 25 defendants convicted under the TVPRA in FY [fiscal year] 2005, 23 received a prison-only term, one received both prison and supervised release, and one received a probation-only sentence. The average prison term imposed for the 23 defendants was 103 months and prison terms ranged from 14 to 270 months: ten received a prison sentence from one to five years, five received terms from five to ten years, and eight received a prison term of more than ten years. One defendant received a probation-only term of 12 months and one defendant received a split sentence of 37 months’ prison and 36 months’ probation.” The Committee notes the indication that the number of anti-trafficking task forces increased from 22 in 2004 to 32 in 2005, with an additional ten anticipated by the end of the 2006 fiscal year.

14. The Committee notes the further statement in the 2006 DOJ report: “The US Government recognizes, however, that more needs to be done to increase the number of investigations and prosecutions. It has taken several steps to do so, primarily by involving state and local authorities in the anti-trafficking fight. To improve the U.S. Government’s ability to investigate and prosecute traffickers, NIJ [National Institute of Justice] is conducting research on the best methods for detecting and investigating traffickers and the legal challenges the US Government encounters in prosecuting traffickers. These projects include: surveys of local law enforcement responses to TIP [trafficking in persons], surveys of federal and state attorneys, analysis of domestic and international TIP legislation, and surveys of law enforcement agencies to determine local definitions of TIP and the number and type of investigations conducted. This research will assist in identifying best methods for combating TIP at the state and local level.”

15. The Committee hopes that the Government will continue 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 NIJ concerning methods for detecting and investigating traffickers and legal challenges the Government encounters in prosecuting traffickers.

16. The Committee notes, with regard to victim protection services, the indication in the 2006 DOJ report that, “In order to improve victim access to government services, the Government must continue to work on its ability to identify victims. Acting on the recommendations in the September 2005 Assessment, the Government has improved its capacity to find and rescue trafficking victims by focusing on particular work sectors or first responders, such as the work sector, victim service providers, the travel industry, and the faith-based community. Once victims are identified, the Government must improve its efforts to coordinate victim services offered by federal agencies and grant recipients. Although the Government has improved inter-agency coordination on TIP issues, increased coordination could improve victim access to services and assistance.” The Committee would be grateful for updated information from the Government in its next report 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.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the report and attached documents received from the Government.

Punishment for participation in a strike

1. In observations addressed to the Government for several years, the Committee has noted that, under article 12, section 95-98.1, of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the state. Under section 95-99, any violation of the provisions of article 12 is declared to be a class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a class 1 misdemeanour may be sentenced to “community punishment” and, upon a second conviction, to “active punishment”, that is, imprisonment. Article 3 (Labour of Prisoners), section 148-26, of Chapter 148 (State Prison System) declares it to be the public policy of the state of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them.

2. The Committee notes from its latest report the Government’s indication that North Carolina judges have the discretion to impose fines and/or community punishment in class 1 misdemeanour cases, and its repeated assertion that “fines – not community service – are imposed on most class 1 misdemeanour cases”. The Committee notes the Government’s further indication that it would be “hypothetically possible” for a North Carolina state employee to be arrested, tried, convicted and sentenced for engaging in an illegal strike under state law and, as a consequence, to “be subject to the state’s requirement that such prisoners work”. The Government repeats its view, however, that “North Carolina law and practice are consistent with the letter and the spirit” of the Convention, and that “no measures have been – or need to be – taken to change that state’s law”.

3. The Committee notes the “Compendium of Community Corrections Programs in North Carolina, Fiscal Year 2004-2005”, published in January 2006 by the North Carolina Sentencing and Policy Advisory Commission, which explains that the imposition of community punishment may include assignment to the state’s Community Service Work Program (CSWP). The report states: “The CSWP is an alternative to incarceration imposed as part of a community punishment or DWI sentence, or in some cases as the sole condition of unsupervised probation.” The report states elsewhere: “CSWP is a community punishment. It is also used as a sanctioning tool at every stage of the criminal justice system … CSWP requires the offender to work for free for public or non-profit agencies in an area that will benefit the greater community.” The Committee notes that programme data concerning the community corrections programme, for the reporting period FY 2004-05, indicate that 67,076 offenders had been admitted to the CSWP, and that offenders in the programme performed 1,593,736 hours of work with an estimated value of US$8,660,163. The Committee has recalled that under Article 1(d) of the Convention, ratifying States are obliged to abolish all penalties involving any form of compulsory labour that may be imposed as a punishment for having participated in strikes.

4. The Committee is therefore bound to observe that under North Carolina law, a sentence of community punishment that involves an obligation to perform work or services may, as an alternative to incarceration, be imposed on public employees for committing the misdemeanour offence of striking, and that as such the law and policy fall within the definition of compulsory labour under the Convention. The Committee is also compelled once again to point out that, in cases of “active punishment”, the circumstance of a public employee having prior convictions is irrelevant to consideration of a prison sentence, imposed on that person for the crime of participating in a strike, as falling within the scope of the Convention. Noting once again that the relevant provisions of North Carolina law do not appear to have been applied in practice to punish participation in strikes by state or local public employees, the Committee trusts that the Government will make every effort in the very near future to take the necessary measures to bring the state’s law into conformity with the Convention.

5. The Committee notes the further comments by the Government in its report, in response to the Committee’s previous request for further information and explanations regarding relevant state legislation, including legislation in the states of Michigan, Missouri and Nevada. The Committee is raising certain questions in this regard in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

Article 1(d) of the Convention. 1. In his statement to the Conference Committee in 2002, the Government representative addressed the "question whether persons imprisoned for participating in strikes considered legal by ILO standards, but illegal under United States law, might be required to perform prison labour prohibited by the Convention. This situation could occur under United States law for certain non-essential public or private sector workers, such as teachers, who disobeyed a court order enjoining strike activity and who were subsequently imprisoned for being in contempt of court". After a thorough examination of federal and state prison law and practice, the Tripartite Advisory Panel on International Labour Standards (TAPILS) had found that the imprisonment of strikers for contempt of court was a rare occurrence in the United States. Furthermore, persons jailed under these circumstances were considered "pre-trial detainees" rather than ordinary prisoners, and "Federal Bureau of Prisons regulations applicable to all federal prisons, as well as many state and local prisons, prohibited the imposition of forced or compulsory labour on pre-trial detainees". Federal guidelines developed by the Department of Justice urged all other state and local prisons to apply the same prohibition of forced labour. In addition, the American Corrections Association (ACA), the private organization most concerned with state and local prison practices, had developed accreditation standards that were nearly identical to the Bureau of Prisons regulations and the Department of Justice guidelines. All of these regulations and guidelines indicated that pre-trial detainees could not be required to work, other than doing housekeeping tasks in their own cells or in the community living area. TAPILS had been unable to find a single instance in which labour was exacted contrary to these guidelines. As to the possibility of contempt of court being classified as either civil or criminal, TAPILS had examined in great detail the law and practice with regard to contempt of court, including an examination of actual instances in which individuals had been sent to jail as a result of contempt orders in labour strikes. It had determined that, with regard to labour strikes, the treatment of individuals jailed as a result of criminal contempt did not differ from that of individuals jailed for civil contempt.

2. The Committee has taken due note of these indications. It also notes from "Prisoners in 2003", the US Department of Justice Bureau of Justice Statistics Bulletin of November 2004, that out of a total of 2,085,620 persons held in state or federal prisons or in local jails on 31 December 2003, only 161,673 were in the custody of federal prisons, while 1,225,175 were in state prisons and 691,301 in local jails. According to the Federal Bureau of Prisons Weekly Population Report of 18 November 2004, the Federal Bureau of Prisons was responsible for the custody and care of a total of 181,405 federal offenders, 153,793 of which were confined in Bureau-operated correctional institutions and detention centres, while the remaining 27,612 persons were confined in privately operated prisons, detention centres, community correction centres, and juvenile facilities, as well as some facilities operated by state or local governments. It would appear that these 181,405 persons came under the scope of the Federal Bureau of Prisons regulations, while a ten times higher number of persons was held elsewhere in state prisons and local jails, where these regulations do not apply and neither the Department of Justice guidelines, nor the ACA standards are binding as a matter of law, so that state and local laws and regulations prevail.

3. The Committee is fully appreciative of the conclusions reached by TAPILS with regard to actual practice in the treatment of persons sent to jail as a result of contempt orders in labour strikes. Nevertheless, under its terms of reference, the Committee is bound to ascertain the compliance of both law and practice with ratified Conventions. It accordingly requests the Government to supply further information and explanations regarding relevant state legislation, such as the following, including any measures taken or contemplated to ensure their conformity with the Convention.

Michigan

Chapter 423, section 202 of the Michigan Compiled Laws [Public Employment Relations, Act 336 of 1947] provides: "Sec. 2. A public employee shall not strike and a public school employer shall not institute a lockout." Under section 202a of Chapter 423, a public school employer may bring an action to enjoin a strike by public school employees in violation of section 2 in the circuit court for the county in which the affected public school is located. A court having jurisdiction of an action brought under this subsection shall grant injunctive relief if the court finds that a strike has occurred. Failure to comply with an order of the court may be punished as contempt (subsection 10). It appears from Chapter 600, sections 1715 and 1845, read together with Chapter 801, sections 1 and 10(1) of the Michigan Compiled Laws, that punishment for contempt may be imprisonment in a county jail, where an obligation to work may be established by resolution of the county board of commissioners for prisoners over the age of 18 years under a sentence of imprisonment, capable of performing manual labour.

Missouri

The Missouri Revised Statutes, at section 295.010 of Chapter 295, includes transportation among the utilities declared to be life essentials of the people; under section 295.180, such utilities may be taken over and operated by the state where there occurs a strike. Thereupon, such strike becomes unlawful under section 295.200, and wilful disobedience of a court injunction to enforce any provision of this chapter or any rule or regulation prescribed by the governor thereunder may be punished as for criminal contempt under subsection 6, read together with section 526.220 of Chapter 526 (Injunctions) and section 476.110 of Chapter 476 (Courts-General Provisions). Under section 476.120, punishment for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting. Under subsection 4 of section 217.543 of Chapter 217, the jailer of any city not within a county having custody of pre-trial detainees or persons serving sentences for violation of state or local laws shall require the inmate or detainee to participate in work or educational or vocational programmes and other activities that may be necessary to the supervision and treatment of the inmate or detainee.

Nevada

Under Title 23, Chapter 288 of the Nevada Revised Statutes, strikes against the state or any local government employer are declared illegal (section 288.230). Under section 288.240, commencement or continuance of such strike shall be enjoined by court order upon application by the state or local employer, and if a strike is commenced or continued in violation of such order, any officer of an employee organization who is wholly or partly responsible for such violation may be punished under section 288.250 by a fine of not more than $1,000 for each day of continued violation, or by imprisonment as provided in NRS 22.110. Section 22.110 provides that when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, such person may be imprisoned until he or she performs it. Title 16, Chapter 208 of the NRS defines a "prison" to mean any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest (section 208.075), and a "prisoner" includes any person held in custody under process of law, or under lawful arrest (section 208.085). Under Chapter 211 of Title 16, the board of county commissioners and the governing body of an incorporated city shall make all necessary arrangements to utilize the labour of the prisoners committed to any jail within any county, city, or town within the state, for a term of imprisonment by the judges of the several district courts within the state or the justices of the peace in any township throughout the state (section 211.120). All prisoners sentenced by the judge of any district court, or by the justice of the peace of any justice’s court, and sentenced to a term of imprisonment in any county, city or town jail or detention facility shall be deemed to have been also sentenced to labour during such term, unless the judge or justice of the peace sentencing the prisoner, for good cause, orders otherwise (section 211.130).

Article 1(e). 4. The Committee notes from the US Department of Justice Bureau of Justice Statistics Bulletins of April 2003 and November 2004 that on 30 June 2002 as well as on 1 July 2003, the number of inmates in state or federal prisons and local jails per 100,000 residents of each population group was more than twice as high for those of Hispanic origin than for "White" residents (excluding Hispanics); for "Black" residents (again excluding Hispanics) the corresponding rate was over seven times the "White" incarceration rate in the case of men, and about five times in the case of women. The Committee also has noted that, based on the National Corrections Reporting Program, 1996, and Bureau of Census, 2000 data, the Human Rights Watch organization states in its April 2003 backgrounder on "Incarcerated America" that "This racial disparity bears little relationship to racial differences in drug offending. For example, although the proportion of all drug users who are black is generally in the range of 13 to 15 per cent, blacks constitute 36 per cent of arrests for drug possession. Blacks constitute 63 per cent of all drug offenders admitted to state prisons. In at least fifteen states, black men were sent to prison on drug charges at rates ranging from twenty to fifty-seven times those of white men". Since a prison sentence normally involves an obligation to perform labour, the Committee hopes that the Government will be in a position to comment in its next report on the abovementioned figures and 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.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

Trafficking in persons

1. In its latest report, the Government draws attention to the Trafficking Victims Protection Act of 2000 (TVPA), which has created new federal crimes, including a "forced labor" crime in a new section 1589 inserted in Title 18 of the United States Code; the Act also has strengthened penalties for trafficking-related offences, afforded new protection and expanded services to trafficking victims. An Interagency Task Force to Monitor and Combat Trafficking in Persons was established in February 2002. According to the Task Force report, "Since the enactment of the TVPA in October 2000, the Department of Justice (DOJ) prosecuted 79 traffickers in FY 2001 and 2002, three times as many as the previous two years, opened 127 investigations of trafficking cases, and conducted the largest ever training for federal prosecutors and agents in October 2002. In a number of these cases, defendants were charged with violating the newly enacted forced labor provisions of Title 18 of the U.S. Code. In addition to domestic efforts at combating trafficking and forced labor, prosecutors stepped up their international efforts, working to build anti-trafficking capabilities and to share best practices with police and prosecutors in Eastern Europe and Latin America." DOJ also took various measures, including the funding of a number of non-governmental organizations (NGOs), to help trafficking victims to receive benefits and services.

2. The Committee has noted these indications with interest. It also notes, from the documents appended to the Government’s report, the findings of the United States Congress: that "Approximately 50,000 women and children are trafficked into the United States each year"; that "Trafficking for such purposes as involuntary servitude, peonage, and other forms of forced labor has an impact on the nationwide employment network and labor market"; and that "To deter international trafficking and bring its perpetrators to justice", priority is given "to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses". The Committee hopes that the Government will supply further details of the measures taken to this end, including the outcome of the 79 prosecutions and 127 investigations of fiscal years 2001 and 2002 referred to in its report.

Punishment for participation in a strike

3. In its previous observation, the Committee noted that under article 12, section 95-98.1 of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the State. Under section 95-99, any violation of the provisions of article 12 is declared to be a Class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a Class 1 misdemeanour may be sentenced to "community punishment" and, upon a second conviction, to "active punishment", that is imprisonment. Article 3 (Labor of Prisoners), section 148-26 of Chapter 148 (State Prison System) declares it to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them. The failure of any inmate to perform such a work assignment may result in disciplinary action. The Committee observed that under Article 1(d) of the Convention, ratifying States are obliged to abolish all penalties involving any form of compulsory labour which may be imposed as a punishment for having participated in strikes.

4. In its reply, the Government points out that under North Carolina law, a person without any prior convictions who is convicted for participating in an illegal strike could only be sentenced to community punishment which, in most cases, only requires the payment of a fine or "may simply involve some minor form of probation or community service". A convicted person with one to four prior convictions can be sentenced to "active punishment", but not receive a sentence of more than 45 days; in North Carolina, sentences of less than 90 days are served in county jails, without work requirements. It is theoretically possible for a person with five or more previous convictions who is found guilty of participating in an illegal strike to receive a sentence of more than 90 days and be subject to a work requirement. However, in the Government’s view, any such individual would be receiving this more serious sentence "for their recidivism" and "not for mere participation in an illegal strike". In addition, "research disclosed no history of strikes by public employees in North Carolina and, consequently, no known instances of any convictions under this law". The Government concludes that North Carolina law and practice is not in violation of Article 1(d) of the Convention.

5. The Committee takes due note of these indications. It must however point out that a sentence of community service, in so far as it may involve an obligation to perform work or service, comes under the definition of compulsory labour. Also, the fact that a person has a number of earlier convictions would not remove a prison sentence involving an obligation to work that may be imposed on him or her upon participating in a strike from the scope of the Convention. Noting with interest the Government’s indication that the relevant provisions of North Carolina law appear never to have been applied in practice, the Committee again expresses the hope that the necessary measures will be taken to bring the law into conformity with the Convention.

6. The Committee notes the Government’s indication that a review of state law was undertaken and "disclosed no state that had a law comparable to North Carolina’s, where participation by a public employee in a strike is illegal, and punishable as a crime that could result in forced labor while in prison". The Committee is raising certain questions in this regard in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 1(d) of the Convention. 1. In his statement to the Conference Committee in 2002, the Government representative addressed the "question whether persons imprisoned for participating in strikes considered legal by ILO standards, but illegal under United States law, might be required to perform prison labour prohibited by the Convention. This situation could occur under United States law for certain non-essential public or private sector workers, such as teachers, who disobeyed a court order enjoining strike activity and who were subsequently imprisoned for being in contempt of court". After a thorough examination of federal and state prison law and practice, the Tripartite Advisory Panel on International Labour Standards (TAPILS) had found that the imprisonment of strikers for contempt of court was a rare occurrence in the United States. Furthermore, persons jailed under these circumstances were considered "pre-trial detainees" rather than ordinary prisoners, and "Federal Bureau of Prisons regulations applicable to all federal prisons, as well as many state and local prisons, prohibited the imposition of forced or compulsory labour on pre-trial detainees". Federal guidelines developed by the Department of Justice urged all other state and local prisons to apply the same prohibition of forced labour. In addition, the American Corrections Association (ACA), the private organization most concerned with state and local prison practices, had developed accreditation standards that were nearly identical to the Bureau of Prisons regulations and the Department of Justice guidelines. All of these regulations and guidelines indicated that pre-trial detainees could not be required to work, other than doing housekeeping tasks in their own cells or in the community living area. TAPILS had been unable to find a single instance in which labour was exacted contrary to these guidelines. As to the possibility of contempt of court being classified as either civil or criminal, TAPILS had examined in great detail the law and practice with regard to contempt of court, including an examination of actual instances in which individuals had been sent to jail as a result of contempt orders in labour strikes. It had determined that, with regard to labour strikes, the treatment of individuals jailed as a result of criminal contempt did not differ from that of individuals jailed for civil contempt.

2. The Committee has taken due note of these indications. It also notes from "Prisoners in 2003", the US Department of Justice Bureau of Justice Statistics Bulletin of November 2004, that out of a total of 2,085,620 persons held in state or federal prisons or in local jails on 31 December 2003, only 161,673 were in the custody of federal prisons, while 1,225,175 were in state prisons and 691,301 in local jails. According to the Federal Bureau of Prisons Weekly Population Report of 18 November 2004, the Federal Bureau of Prisons was responsible for the custody and care of a total of 181,405 federal offenders, 153,793 of which were confined in Bureau-operated correctional institutions and detention centres, while the remaining 27,612 persons were confined in privately operated prisons, detention centres, community correction centres, and juvenile facilities, as well as some facilities operated by state or local governments. It would appear that these 181,405 persons came under the scope of the Federal Bureau of Prisons regulations, while a ten times higher number of persons was held elsewhere in state prisons and local jails, where these regulations do not apply and neither the Department of Justice guidelines, nor the ACA standards are binding as a matter of law, so that state and local laws and regulations prevail.

3. The Committee is fully appreciative of the conclusions reached by TAPILS with regard to actual practice in the treatment of persons sent to jail as a result of contempt orders in labour strikes. Nevertheless, under its terms of reference, the Committee is bound to ascertain the compliance of both law and practice with ratified Conventions. It accordingly requests the Government to supply further information and explanations regarding relevant state legislation, such as the following, including any measures taken or contemplated to ensure their conformity with the Convention.

Michigan

Chapter 423, section 202 of the Michigan Compiled Laws [Public Employment Relations, Act 336 of 1947] provides: "Sec. 2. A public employee shall not strike and a public school employer shall not institute a lockout." Under section 202a of Chapter 423, a public school employer may bring an action to enjoin a strike by public school employees in violation of section 2 in the circuit court for the county in which the affected public school is located. A court having jurisdiction of an action brought under this subsection shall grant injunctive relief if the court finds that a strike has occurred. Failure to comply with an order of the court may be punished as contempt (subsection 10). It appears from Chapter 600, sections 1715 and 1845, read together with Chapter 801, sections 1 and 10(1) of the Michigan Compiled Laws, that punishment for contempt may be imprisonment in a county jail, where an obligation to work may be established by resolution of the county board of commissioners for prisoners over the age of 18 years under a sentence of imprisonment, capable of performing manual labour.

Missouri

The Missouri Revised Statutes, at section 295.010 of Chapter 295, includes transportation among the utilities declared to be life essentials of the people; under section 295.180, such utilities may be taken over and operated by the state where there occurs a strike. Thereupon, such strike becomes unlawful under section 295.200, and wilful disobedience of a court injunction to enforce any provision of this chapter or any rule or regulation prescribed by the governor thereunder may be punished as for criminal contempt under subsection 6, read together with section 526.220 of Chapter 526 (Injunctions) and section 476.110 of Chapter 476 (Courts-General Provisions). Under section 476.120, punishment for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting. Under subsection 4 of section 217.543 of Chapter 217, the jailer of any city not within a county having custody of pre-trial detainees or persons serving sentences for violation of state or local laws shall require the inmate or detainee to participate in work or educational or vocational programmes and other activities that may be necessary to the supervision and treatment of the inmate or detainee.

Nevada

Under Title 23, Chapter 288 of the Nevada Revised Statutes, strikes against the state or any local government employer are declared illegal (section 288.230). Under section 288.240, commencement or continuance of such strike shall be enjoined by court order upon application by the state or local employer, and if a strike is commenced or continued in violation of such order, any officer of an employee organization who is wholly or partly responsible for such violation may be punished under section 288.250 by a fine of not more than $1,000 for each day of continued violation, or by imprisonment as provided in NRS 22.110. Section 22.110 provides that when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, such person may be imprisoned until he or she performs it. Title 16, Chapter 208 of the NRS defines a "prison" to mean any place designated by law for the keeping of persons held in custody under process of law, or under lawful arrest (section 208.075), and a "prisoner" includes any person held in custody under process of law, or under lawful arrest (section 208.085). Under Chapter 211 of Title 16, the board of county commissioners and the governing body of an incorporated city shall make all necessary arrangements to utilize the labour of the prisoners committed to any jail within any county, city, or town within the state, for a term of imprisonment by the judges of the several district courts within the state or the justices of the peace in any township throughout the state (section 211.120). All prisoners sentenced by the judge of any district court, or by the justice of the peace of any justice’s court, and sentenced to a term of imprisonment in any county, city or town jail or detention facility shall be deemed to have been also sentenced to labour during such term, unless the judge or justice of the peace sentencing the prisoner, for good cause, orders otherwise (section 211.130).

Article 1(e). 4. The Committee notes from the US Department of Justice Bureau of Justice Statistics Bulletins of April 2003 and November 2004 that on 30 June 2002 as well as on 1 July 2003, the number of inmates in state or federal prisons and local jails per 100,000 residents of each population group was more than twice as high for those of Hispanic origin than for "White" residents (excluding Hispanics); for "Black" residents (again excluding Hispanics) the corresponding rate was over seven times the "White" incarceration rate in the case of men, and about five times in the case of women. The Committee also has noted that, based on the National Corrections Reporting Program, 1996, and Bureau of Census, 2000 data, the Human Rights Watch organization states in its April 2003 backgrounder on "Incarcerated America" that "This racial disparity bears little relationship to racial differences in drug offending. For example, although the proportion of all drug users who are black is generally in the range of 13 to 15 per cent, blacks constitute 36 per cent of arrests for drug possession. Blacks constitute 63 per cent of all drug offenders admitted to state prisons. In at least fifteen states, black men were sent to prison on drug charges at rates ranging from twenty to fifty-seven times those of white men". Since a prison sentence normally involves an obligation to perform labour, the Committee hopes that the Government will be in a position to comment in its next report on the abovementioned figures and 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.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Further to its previous observation, the Committee has noted the information supplied by the Government in its latest reports, as well as the discussion that took place at the Conference Committee in 2002.

Trafficking in persons

1. In its latest report, the Government draws attention to the Trafficking Victims Protection Act of 2000 (TVPA), which has created new federal crimes, including a "forced labor" crime in a new section 1589 inserted in Title 18 of the United States Code; the Act also has strengthened penalties for trafficking-related offences, afforded new protection and expanded services to trafficking victims. An Interagency Task Force to Monitor and Combat Trafficking in Persons was established in February 2002. According to the Task Force report, "Since the enactment of the TVPA in October 2000, the Department of Justice (DOJ) prosecuted 79 traffickers in FY 2001 and 2002, three times as many as the previous two years, opened 127 investigations of trafficking cases, and conducted the largest ever training for federal prosecutors and agents in October 2002. In a number of these cases, defendants were charged with violating the newly enacted forced labor provisions of Title 18 of the U.S. Code. In addition to domestic efforts at combating trafficking and forced labor, prosecutors stepped up their international efforts, working to build anti-trafficking capabilities and to share best practices with police and prosecutors in Eastern Europe and Latin America." DOJ also took various measures, including the funding of a number of non-governmental organizations (NGOs), to help trafficking victims to receive benefits and services.

2. The Committee has noted these indications with interest. It also notes, from the documents appended to the Government’s report, the findings of the United States Congress: that "Approximately 50,000 women and children are trafficked into the United States each year"; that "Trafficking for such purposes as involuntary servitude, peonage, and other forms of forced labor has an impact on the nationwide employment network and labor market"; and that "To deter international trafficking and bring its perpetrators to justice", priority is given "to the prosecution of trafficking offenses, and protecting rather than punishing the victims of such offenses". The Committee hopes that the Government will supply further details of the measures taken to this end, including the outcome of the 79 prosecutions and 127 investigations of fiscal years 2001 and 2002 referred to in its report.

Punishment for participation in a strike

3. In its previous observation, the Committee noted that under article 12, section 95-98.1 of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the State. Under section 95-99, any violation of the provisions of article 12 is declared to be a Class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a Class 1 misdemeanour may be sentenced to "community punishment" and, upon a second conviction, to "active punishment", that is imprisonment. Article 3 (Labor of Prisoners), section 148-26 of Chapter 148 (State Prison System) declares it to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them. The failure of any inmate to perform such a work assignment may result in disciplinary action. The Committee observed that under Article 1(d) of the Convention, ratifying States are obliged to abolish all penalties involving any form of compulsory labour which may be imposed as a punishment for having participated in strikes.

4. In its reply, the Government points out that under North Carolina law, a person without any prior convictions who is convicted for participating in an illegal strike could only be sentenced to community punishment which, in most cases, only requires the payment of a fine or "may simply involve some minor form of probation or community service". A convicted person with one to four prior convictions can be sentenced to "active punishment", but not receive a sentence of more than 45 days; in North Carolina, sentences of less than 90 days are served in county jails, without work requirements. It is theoretically possible for a person with five or more previous convictions who is found guilty of participating in an illegal strike to receive a sentence of more than 90 days and be subject to a work requirement. However, in the Government’s view, any such individual would be receiving this more serious sentence "for their recidivism" and "not for mere participation in an illegal strike". In addition, "research disclosed no history of strikes by public employees in North Carolina and, consequently, no known instances of any convictions under this law". The Government concludes that North Carolina law and practice is not in violation of Article 1(d) of the Convention.

5. The Committee takes due note of these indications. It must however point out that a sentence of community service, in so far as it may involve an obligation to perform work or service, comes under the definition of compulsory labour. Also, the fact that a person has a number of earlier convictions would not remove a prison sentence involving an obligation to work that may be imposed on him or her upon participating in a strike from the scope of the Convention. Noting with interest the Government’s indication that the relevant provisions of North Carolina law appear never to have been applied in practice, the Committee again expresses the hope that the necessary measures will be taken to bring the law into conformity with the Convention.

6. The Committee notes with interest the Government’s indication that a review of state law was undertaken and "disclosed no state that had a law comparable to North Carolina’s, where participation by a public employee in a strike is illegal, and punishable as a crime that could result in forced labor while in prison". The Committee is raising certain questions in this regard in a request addressed directly to the Government.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee has noted the Government’s report with its reply to the Committee’s earlier request for information. The Committee also has noted a communication dated 11 September 2001 of the International Confederation of Free Trade Unions (ICFTU), submitting comments on the observance of the Convention in the United States, a copy of which has been forwarded to the Government for any comments it may wish to make on the matters raised therein.

2. In its communication dated 11 September 2001, the ICFTU referred to the Committee’s concern as to whether violation of a no-strike injunction could be classified as criminal contempt, with the consequence that due process would attach and the person could then be convicted and sentenced to prison labour, in violation of Convention No. 105. This matter will be considered in paragraph 5 et seq. below.

3. In its communication, the ICFTU further commented in some detail on widely varying conditions of employment in prison industries in different US states and their role in the private sector and international trade. It also made the following allegations of forced labour by migrant workers.

Some of the employment in territories under the control of the United States Government amounts to forced labour. Since the 1980s the United States Commonwealth of the Northern Mariana Islands has developed a garment industry based on the ability of these islands to ship products duty free and without quotas to the United States. This status, together with local control of wage and immigration laws, has had the practical effect of introducing a system of indentured servitude into the territory. Local authorities permit foreign-owned companies to recruit thousands of foreign workers, mainly young women from Thailand, China, the Philippines and Bangladesh. The workers are recruited by private agencies that demand exorbitant fees from these workers. Fees are either paid in advance or are deducted from pay in an arrangement that requires the workers to remain in the employ of the same manufacturer who in turn has a relationship with the recruiting agency.

In addition to the abuse of fee-charging, these foreign workers are routinely required to sign employment contracts where they agree to refrain from asking for wage increases, seeking other work and from joining a union. The workers are informed that contract violations will result in dismissal as well as deportation and that the workers concerned must pay the travel expenses to return to their home country.

Many similar conditions are faced by migrant domestic workers coming to the United States under the various applicable employer-related visa schemes. These workers are often victims of physical abuse, face severe restriction on their freedom of movement, and work under conditions tantamount to slavery. Many migrant domestic workers are paid far less than the minimum wage, and, under the terms of their visa, face deportation for leaving their employer to escape from these oppressive conditions.

The ICFTU concluded that:

There are grounds for serious concern about commercial production by prisoners in the United States and about practices amounting to forced labour by exploited migrant workers (mainly women) in United States dependent territories, and migrant domestic workers in the United States.

4. The Committee takes due note of these allegations. As regards the Northern Mariana Islands, the Committee observes that the Abolition of Forced Labour Convention, 1957 (No. 105) is not among the ILO Conventions which have been declared applicable to that territory by the United States. As regards the conditions faced by migrant workers coming to the United States, the Committee hopes that the Government will present its comments on the allegations made by the ICFTU.

5. The Committee previously noted the Government’s indication that persons imprisoned for engaging in illegal strikes, who are jailed for contempt of court, are considered pre-trial detainees under United States law and practice and as such are not subject to prison labour. In respect of the distinction between criminal and civil contempt and its implications regarding an obligation to perform prison labour, the Government supplied, inter alia, information on the Supreme Court finding in United Mineworkers v. Bagwell, 512 U.S. 821 (1994), that the union’s failure to obey an injunction regarding unlawful strike-related activities constituted criminal contempt. The Government pointed out that the court did not appear to have sentenced any union members or officials in Bagwell to jail for contempt. The Committee requested the Government to supply further information on the development of law and practice in this field, indicating, in particular, whether in law, union members or officials might be sentenced to jail for criminal contempt in circumstances comparable to Bagwell and, if so, whether these would be considered pre-trial detainees under United States law and practice or be granted on a different basis a comparable status exempting them from an obligation to perform prison labour.

6. In response to the Committee’s request, the Government supplied several examples of court decisions and indicated that it remains the understanding of the United States that persons who are jailed for contempt are considered pre-trial detainees and, as such, are not subject to prison labour. In addition, it emphasized that jailing anyone for contempt of court in the context of a labour dispute is not a common practice in the United States. For example, it noted that in Bagwell, which involved very serious contempt allegations within a labour dispute, it appears that no one was jailed for any purely labour-related, as opposed to criminal, offences.

7. The Committee notes these indications, which do not, however, appear to cover the full range of national law and practice regarding the punishment, with penalties involving compulsory labour, of persons engaging in prohibited strikes, particularly at the state and local levels.

8. The Committee notes that under Chapter 95 (Department of Labor and Labor Regulations), article 12, section 95-98.1 of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the State. No person holding a position either full- or part-time by appointment or employment with the State of North Carolina or in any county, city, town or other political subdivision of the State of North Carolina, or in any agency of any of them, shall wilfully participate in a strike by public employees. Under section 95-99, any violation of the provisions of article 12 is declared to be a Class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A 1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a Class 1 misdemeanour may be sentenced to "community punishment" and, upon a second conviction, to "active punishment", that is imprisonment. Article 3 (Labor of Prisoners), section 148-26 of Chapter 148 (State Prison System) declares it to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them. The failure of any inmate to perform such a work assignment may result in disciplinary action.

9. Under Article 1(d) of the Convention, states are obliged to abolish all penalties involving any form of compulsory labour which may be imposed as a punishment for having participated in strikes. There is no exception to this rule in the Convention.

As the Committee indicated in paragraph 123 of its 1979 General Survey on the abolition of forced labour, it has nonetheless considered that it is not incompatible with the Convention to impose penalties (even if involving an obligation to perform labour) for participation in strikes in the civil service or other essential services, provided that such provisions are applicable only to essential services in the strict sense of the term (that is, services whose interruption would pose a clear threat to the life, personal safety or health of the whole or part of the population) and that compensatory guarantees in the form of appropriate alternative procedures are provided.

10. The sweeping provisions of the North Carolina General Statutes quoted in paragraph 8 above do not meet these criteria and are contrary to Article 1(d) of the Convention. The Committee hopes that the necessary measures will be taken to bring the abovementioned provisions of the North Carolina General Statutes into conformity with the Convention, and that the Government will report on action taken to this end. The Committee also hopes that more generally, legislation and practice at the level of the states will be reviewed in the light of Article 1(d) of the Convention, and that the Government will report on the findings.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information supplied by the Government in its report.

Article 1(d) of the Convention. The Committee previously noted the Government's indication that persons imprisoned for engaging in illegal strikes, who are jailed for contempt of court, are considered pre-trial detainees under United States law and practice and as such are not subject to prison labour. In its latest report, the Government indicates that it is not aware of any developments in law and practice in the past two years that would change that conclusion. In respect of the law regarding the distinction between criminal and civil contempt and its implications regarding an obligation to perform prison labour, the Government has supplied, inter alia, information on the Supreme Court finding in United Mineworkers v. Bagwell, 512 U.S. 821 (1994), that the union's failure to obey an injunction regarding unlawful strike-related activities constituted criminal contempt. The Government points out that the court does not appear to have sentenced any union members or officials in Bagwell to jail for contempt.

The Committee takes due note of these indications. It requests the Government to continue to supply information on the development of law and practice in this field, indicating, in particular, whether in law, union members or officials might be sentenced to jail for criminal contempt in circumstances comparable to Bagwell and, if so, whether these would be considered pre-trial detainees under United States law and practice or be granted on a different basis a comparable status exempting them from an obligation to perform prison labour.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 1(a) of the Convention. The Committee notes that the "Smith Act" (18 USC 2385) prohibits various means of advocacy of overthrowing the Government by force or violence, and makes these activities punishable by imprisonment which may involve compulsory labour. While this text appears to fall within the parameters laid down by the Committee in paragraph 133 of its 1979 General Survey on the abolition of forced labour, the Committee would be grateful for an indication of the way this legislation has been applied in practice (in particular through court decisions).

Article 1(d) of the Convention. The Committee previously requested the Government to indicate whether violation of a no-strike injunction could be classified as criminal contempt, with the consequence that due process would attach and the contemner could then be convicted and sentenced. The Government indicates in its latest report that persons imprisoned for engaging in illegal strikes, who are jailed for contempt of court, are considered pre-trial detainees under United States law and practice and as such are not subject to prison labour. The Committee would be grateful if the Government would continue to supply information on the development of the United States law and practice in this field, indicating, in particular, the more recent court decisions concerning violation of a no-strike injunction and a distinction between civil contempt and criminal contempt. Please provide copies of such court decisions.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee has taken note with interest of the Government's first three reports on the application of the Convention.

Article 1(d) of the Convention. In its first report, the Government indicated that the Federal Bureau of Prisons Regulations concerning the treatment of pre-trial detainees ensure that persons jailed for contempt of court in connection with an unlawful strike may not be made to work. In its last report, the Government indicates that effective 22 November 1994, those rules were slightly modified, but that the revised rules still guarantee that no pre-trial inmate may be required to work, other than housekeeping tasks in his/her cell or community living area, unless the inmate waives - in writing - his or her right not to work. Furthermore, such a waiver may be rescinded at the inmate's request. Therefore, these modified rules in no way limit US application of Convention No. 105.

The Committee takes due note of these indications. It understands that contempt of court can be classified as either civil or criminal, and that persons imprisoned for civil contempt are assimilated to pre-trial detainees who are not required to perform prison labour. The Committee requests the Government to indicate in its next report whether violation of a no-strike injunction could be classified as criminal contempt, with the consequence that due process would attach and the contemner could then be convicted and sentenced.