DURBAN--If you want a window
on the reality of racism and those who experience
it, look no further than the prison population
of virtually every country in the world. Racial
discrimination often finds its clearest expression
in a state's administration of justice. In many
countries, those who are over-represented among
the prison population are the disfavored racial
minority groups, because which are most vulnerable
to racism or racial discrimination within the
criminal justice system.
Members of racial, ethnic and other
minorities or vulnerable groups often face harassment,
arbitrary detention, and abusive treatment by the agents
of law enforcement and disparate treatment in the administration
of justice. This discrimination -whether in policing,
criminal prosecutions, trials, sentencing, or imprisonment-
causes extraordinary harm with lasting consequences.
This issue requires the urgent attention of the World
Conference against Racism.
Discrimination
in criminal justice may be deliberate, reflecting
entrenched bias, or it may flow from
ostensibly neutral decisions that nonetheless produce
an unjustified racially disparate impact. Both
types of racial discrimination contradict the principles
of justice and equal protection laws that should
be the foundation of any justice system. The presence
of racial discrimination in a system of justice
also violates the International Convention on the
Elimination of All Forms of Racial Discrimination,
("CERD").
Discriminatory impact can be shown in patterns
of police abuse, arbitrary arrest, incarceration,
prosecution and sentencing. Police often target
minorities as possible criminal suspects solely
on the basis of their race or ethnicity. In the
United States, black and Hispanic drivers are stopped
by police more frequently, detained for longer
periods of time per stop than whites and their
cars are searched more frequently after being stopped.
Use of force by police also varies by race of
suspect. In Brazil, darker- skinned people who
are shot by the police are almost twice as likely
to be killed than whites shot by police. Aboriginal
people in Australia are 9.2 times more likely to
be arrested, 23.7 times more likely to be imprisoned
as an adult and 48 times more likely to be imprisoned
as juveniles than non-Aborigines.
Ostensibly race neutral laws can have a disparate
impact on vulnerable minorities, and the resulting
impact may be vastly disproportionate to their
actual involvement in the overall pattern of criminal
activity in a country. The war on drugs in the
United States is waged overwhelmingly against black
Americans. Although there are more white drug offenders
than black, blacks constitute 62.7 percent of all
drug offenders sent to state prison. Black men
are sent to prison on drug charges at 13.4 times
the rate of white men.
Members of vulnerable or disfavored minority groups
are assigned onerous prison sentences, even when
non-custodial options exist. They are physically
or sexually abused, suffer harassment or violence
at the hands of prison inmates and staff. They
experience difficulties in obtaining discretionary
releases like parole. Criminal penalties that are
accompanied by temporary or permanent disenfranchisement
further exclude members of groups already facing
discriminatory treatment in the political life
of their societies, compounding economic, social
and political marginalization.
The effects of racial discrimination are particularly
devastating in the application of the ultimate
and irreversible penalty of death, which Human
Rights Watch opposes because of its inherent cruelty.
Racial discrimination routinely enters into the
determination of which persons are executed and
those who are allowed to live. The inherent fallibility
of all criminal justice systems assures that even
when full due process of law is respected, innocent
persons may be executed: errors that cannot be
corrected.
As a penalty that is inherently cruel, irreversible
and particularly susceptible to discrimination
in its application, the death penalty should be
abolished. Discriminatory abuse is not limited
to criminal law enforcement. Those facing discrimination
are often denied equal protection by police and
the courts when they attempt to assert their rights.
Too often police ignore, condone, or encourage
violence by private individuals directed against
racial minorities.
In June of 2000,
police turned their backs on a Dalit ("untouchable")
village in India's Bihar state as an upper caste
mob entered it and
killed 34 lower-caste, men, women and children.
In February, 2000, a hate group shouting racist
insults attacked five Roma in Nachod, in the Czech
Republic; victims said police were among the attackers
and did nothing to stop the assault or arrest the
perpetrators.
Despite evidence that racial disparities remain
pervasive at every stage in the administration
of justice around the world, the documents being
discussed at the World Conference Against Racism
fail to meaningfully address these problems.
Human Rights Watch, together with an alliance
from over 50 countries is asking the WCAR to urge
governments to: remove or amend (in accordance
with the International Convention on the Elimination
of All Forms of Discrimination) all forms of legislation,
policies or practices that have the purpose or
effect of discrimination against any person on
the basis of race, religion, nationality, language,
caste, ethnicity, minority, migrant or refugee
status; abolish the use of the death penalty; eradicate
the practice of punishing minors with penalties
reserved for adults, which has disproportionately
affected vulnerable populations; take effective
measures to prohibit reliance on race, ethnic or
other group status in the exercise of law enforcement;
prohibit the use of torture and excessive force
by criminal justice system personnel and provide
increased sanctions against actions motivated by
race, religion gender or other differences; give
special consideration to the concern that foreigners,
migrants, asylum seekers, and refugees are increasingly
criminalized through arbitrary and unlawful detention
contrary to the 1951 Convention Relating to the
status of Refugees and its 1967 protocol; require
regular qualitative monitoring and data collection
and compilation by race, color, nationality, ethnicity,
gender and age to determine whether any aspects
of the criminal and penal justice system are being
administered in a discriminatory manner; improve
training and monitoring of criminal justice system
officers; and develop effective remedies, including
remedies against government agencies and officers,
for victims of racial and other forms of discrimination.
Erika George is Consultant Counsel to Human Rights
Watch.
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