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Analysis: Human rights treaty provides a tool to fight racial bias

The CERD treaty, which the US has ratified, would help prohibit policies that have a discriminatory impact based on race.
A group gathers in front of a police line after 5 people were shot at a Black Lives Matters protest Nov. 24, 2015 in Minneapolis, Minn. (Photo by Stephen Maturen/Getty)
A group gathers in front of a police line after 5 people were shot at a Black Lives Matters protest Nov. 24, 2015 in Minneapolis, Minn.

This election year, a number of our presidential hopefuls seem to acknowledge that the criminal legal system is broken. What is not discussed is that current civil rights laws are simply insufficient for addressing the systemic racism ingrained in our legal system. As we join the world in commemorating the 50th anniversary of the International Day for the Elimination of Racial Discrimination on March 21, it is time to consider using international human rights law to address the gaps in our system. Presidential candidates should commit that if elected, they will ensure full implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), a treaty that the United States has ratified.

Our civil rights laws are ill designed to effectively address the prevailing police culture of impunity. Last year, there were around 1,000 killings by police. Only about 17 officers were charged with murder or manslaughter. According to The Guardian, black people were more than twice as likely to be killed than other any group, and young black men were nine times more likely to be killed than any other group in 2015. And though black men comprise 6 percent of the population, they made up about 40 percent of those killed while unarmed.

The racial disparities reflected in extrajudicial killings of black people at the hands of the police also exist at every stage of the criminal legal system — from racial profiling and police stops to arrests, detentions, sentencing, and death penalty. Disproportionate contact with police often occurs because municipalities have embraced aggressive policing of low level offenses called "broken windows" policing that often results in the targeting of black, brown and poor people. It is no surprise then that black people are disproportionately incarcerated. In fact, there are more black men incarcerated in the United States than the total prison populations of several countries combined including India, Argentina, Canada, Lebanon, Japan, Germany, Finland, England and more. For black women, the imprisonment rate is twice that of white women.

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The situation is not better for Latino and immigrant communities. Under the Obama administration, which purports to be dedicated to easing the plight of immigrant communities, many immigrants face greater threats of deportation than at any time in decades. Human Rights Watch has concluded that prosecution for immigration offenses has increased significantly over the past decade. The Department of Homeland Security introduced "Operation Streamline" in 2005 along a five-mile high-traffic stretch of the Southwest border. The program, which has since expanded, targets unauthorized border-crossers for criminal prosecution prior to placing them in deportation proceedings. And it has had a disproportionate impact on Latinos.

Immigrants in detention also face abuses. Immigrants in several detention centers — from the Stewart Detention Center in Georgia to Etowah in Alabama, Aurora in Colorado, Krome in Florida, and others elsewhere — went on hunger strikes in the fall of 2015 to protest their indefinite detention and inhumane conditions of confinement. Instead of addressing their concerns, the response from the administration and the corporate operators of these facilities was nothing short of brutal: sleep deprivation, solitary confinement, transfers to other facilities, and threats of force-feeding.

The CERD treaty would help prohibit policies that have a discriminatory impact based on race, even where there is no intent to discriminate. While this is also true of some key U.S. laws, the 2001 decision in Sandoval v. Alexander, which eliminated the private right to bring a lawsuit for cases of discriminatory impact in court, has made it much harder to bring claims of structural discrimination. Policing practices like "broken windows" and "Operation Streamline" are both in violation of the CERD treaty, and the U.N. has called on the United States to abolish "Operation Streamline," prohibit racial profiling, and promptly investigate and prosecute law enforcement who engage in excessive use of force.

This year, the theme of the International Day for the Elimination of Racial Discrimination is "challenges and achievements of the Durban Declaration and Program of Action (DDPA) – 15 years after." The DDPA calls for full implementation of the CERD treaty. The U.S. government and in particular the Obama administration has steadfastly refused to adopt the DDPA framework.

We are past time for excuses. It is time for the U.S. government to fully implement the CERD treaty.

Ejim Dike is executive director of the US Human Rights Network.

Azadeh Shahshahani is legal & advocacy project director at Project South and a past president of the National Lawyers Guild.