After months of preparation and anticipation, on Wednesday we had our first opportunity to hear from the members of the Committee on their specific interests and questions about the US compliance, or lack thereof, with the requirements of the Convention to Eliminate all Forms of Racial Discrimination. It was a wonderful feeling for the 129 of us from the US delegation to finally have the direct attention of about 8 members of the Commission, and to able to answer some of their questions and address them on our particular areas of concern.
Perhaps because my home state, Texas, is known both nationally and internationally for our unapologetic endorsement and frequent application of the death penalty, I was given the opportunity to briefly address the members on the intersection of race and capital punishment in the United States in general and in Texas specifically. In its 2001 report, the CERD Committee identified Texas and several other states in the Deep South as demonstrating a “disturbing correlation between race, both of the victim and the defendant, and the imposition of the death penalty.” The Committee recommended that the US “ensure, possibly via a moratorium, that no death penalty is imposed as a result of racial bias on the part of prosecutors, judges, juries and lawyers, or as a result of economically, socially, educationally disadvantaged position of the convicted person.” (Recommendations)
Anti-death penalty advocates have achieved some significant gains in the US since 2001 — most notably, the Supreme Court’s decisions prohibiting the death penalty for the mentally ill (Atkins v. Virginia, 536 US 304 (2002)) and juveniles (Roper v. Simmons, 543 US 551 (2005)). However, as I noted to the Committee, statistical evidence from Texas and other states confirms that the race of the defendant and the victim continue to be significant predictors of the likelihood the death penalty will be imposed. Moreover,these disparities do not just appear at capital sentencing – rather, the impact of racial discrimination permeates the entire US criminal justice system, beginning with overpolicing in schools and neighborhoods of color, to the lack of access to counsel, to sentencing for non-violent crimes as well as capital offenses.
The US government is intractable in its insistence that, absent evidence of intentional discrimination in an individual case, the government’s hands are tied with respect to remedying these disparities. The most gratifying aspect of the international law in this area, to me, is the fact that under CERD, showing that a government practice has a discriminatory impact on people of color is considered adequate evidence to prove the truth we all know: that the imposition of the death penalty in the US is inextricably related to the legacy of racism in our country which began with slavery and continues to shape the entire US criminal justice system. The process in which we are currently engaged with the CERD Committee will be a success if it we are able, through our testimony to the Committee and its
recommendations to the the US government, to continue to push the US, bit by bit, closer to acknowledging and accepting affirmative responsibility for remedying this systemic discrimination.
The process is incremental, and every single step counts.
Read the ACLU’s shadow report at www.aclu.org/cerd