Both the ICCPR and the Convention for the Elimination of All Forms of Racial Discrimination serve to protect defendants in criminal cases from discriminatory application of the laws. In relevant part, the Race Convention obligates member states to “prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,” including the “right to equal treatment before the tribunals and all other organs administering justice.”1
Likewise, Article 6 of the Race Convention provides that parties “shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention.” Furthermore, the Convention defines racial discrimination broadly to include “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”2
The Committee on the Elimination of Racial Discrimination, “the Race Convention’s adjudicative counterpart to the Human Rights Committee,” has already made clear that the protections of the treaty reach criminal prosecutions, and that Article 5(a) “applies to all types of judicial proceedings, including trial by jury.”3 In addition, the broad definition of racial discrimination in Article 1 makes clear that member states must protect against conduct that produces a discriminatory effect, and not merely that which reveals a discriminatory intent.4
The United States’ first report to the Race Committee contains a page and a half (out of more than 100) on the death penalty, in which it acknowledges racial patterns in sentencing and mentions that “many remain concerned about racial and geographic disparities in the application of the death sentence.”5
Article 26 of the ICCPR specifically guarantees that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” Moreover, article 14 states that all persons “shall be equal before the courts and tribunals.” Though discrimination is not defined in the ICCPR, the Human Rights Committee has employed the Race Convention’s “purpose or effect” definition of discrimination to explain the meaning of the term.6
The Inter-American Commission on Human Rights has a somewhat inconsistent record regarding claims of racial discrimination in capital sentencing. In the case of Willie L. Celestine, the African American petitioner was sentenced to death in 1982 for the rape and murder of a white woman. He argued the United States had violated his right not to be deprived of life arbitrarily under Art. 1 of the American Declaration on the Rights and Duties of Man.7
Celestine relied on statistical evidence to show racial discrimination in capital sentencing, and argued that “if reliable statistical studies demonstrate the likelihood of racial discrimination within the criminal justice system, the burden must shift to the Government to prove that the capital hearing was free of racial discrimination.” Petitioner also argued that a prohibition on racial discrimination was a peremptory norm, jus cogens, which “places ‘a heavy burden of justification upon the United States for the continuation of existing legal doctrines and policies that have permitted this state of affairs.'” He also claimed that his death-qualified jury meant that a disproportionate number of African Americans and women had been removed from the pool.
Relying heavily on the United States Supreme Court’s decision in McClesky v. Kemp, the Commission concluded that the statistics provided were not sufficient to make a prima facie case that Celestine’s sentence was the result of racial discrimination. The Commission noted that the United States has not abolished capital punishment, and it found the United States’ argument that “‘[a]n entire criminal justice system cannot be proved invalid by mere citations to statistical studies without more'” to be persuasive. The Commission found further that “this is a poor case upon which to recommend a reversal of the U.S. criminal justice practice” because it was a particularly heinous crime, the jury included several black members, and the Louisiana Supreme Court had specifically reviewed the case for racial prejudice and found none.
In Andrews v. United States, however, the Commission was more sympathetic. Andrews, who was African American, was sentenced and executed after being charged with murder and aggravated robbery. A note containing a vicious racial slur was found among the all-white jurors during the trial, which took place in Utah at a time when Mormon church doctrine taught that blacks were inferior and condemned. A defense request to question the jurors on the note was denied. Instead, the judge merely instructed the jury to disregard such “foolish” communications.8 Counsel for Andrews argued that the specific facts of the racist note and judge’s response distinguished his case from Celestine.
The Commission found that, despite the judge’s warning to the jurors to ignore the racist note and the jury’s acquittal of an African-American co-defendant, Andrews had not received an impartial hearing because there was a “reasonable appearance” of racial bias. Factors cited were the white, Mormon composition of the jury, the manner in which the racist note was handed to the bailiff, the judge’s inadequate response to the note, and concerns expressed by defense attorneys that “talk in the hallway” and the note would influence jurors. The United States’ failure to provide Andrews with an impartial trial was found to have violated the American Declaration’s equal protection clause, and both of these violations, the Commission held, violated his right to life.
The Commission recommended that the United States compensate Andrews’ next of kin as a remedy for the violation, since Andrews had already been executed at the time the Commission issued its findings.
In 1998, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions concluded that the application of the death penalty in the United States was both “discriminatory and arbitrary.” He concluded that “race, ethnic origin, and economic status appear to be key determinants of who will, and who will not, receive a death sentence.”9
Andrews v. United States, Case No. 11.139, Report No. 57/96, OEA/Ser.L/V/II.95 Doc.7 rev. at 570, Inter-Amer. Ct. of Human Rights, 1997.
Celestine v. United States, Case No. 10.031, Resolution No. 23/89, Sep. 28, 1989.
Narrainen v. Norway, Communication No.3/191, U.N. Doc. CERD/C/44/D/3/1991, Mar. 15, 1994.
American Civil Liberties Union, The Persistent Problem of Racial Disparities in the Federal Death Penalty, http://www.aclu.org/pdfs/capital/racial_disparities_federal_deathpen.pdf, Jun. 25, 2007.
G. Ben Cohen & Robert J. Smith, The Racial Geography of the Federal Death Penalty, Washington Law Review, Vol. 85:424, 2010.
Anthony N. Bishop, The Death Penalty in the United States: An International Human Rights Perspective, 43 South Texas Law Review, 1115, 1179, 2002.
John Blume, Theodore Eisenberg, & Martin T. Wells, Explaining Death Row’s Population and Racial Composition, Journal of Empirical Legal Studies, Vol. 1, No. 1, Mar. 2004.
William J. Bowers, Benjamin D. Steiner, & Marla Sandys, Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition, Journal of Constitutional Law, Vol. 3, No. 1, Feb. 2001.
Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, https://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf, Aug. 2010.
Jefferson Holcomb, Marian Williams, & Stephen Demuth, White Female Victims and Death Penalty Disparity Research, Justice Quarterly, Vol. 21, No. 4, Dec. 2004.
Mona Lynch & Craig Haney, Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury, Mich. State Law Review, Vol. 2011, No. 3, 2011.
Sheri Lynn Johnson, John H. Blume & Patrick M. Wilson, Racial Epithets in the Criminal Process, Mich. State Law Review, Vol. 2011, No. 3, 2011.
Michael Mello, Ivon Stanley and James Adams’ America: Vectors of Racism in Capital Punishment, 43 No. 5 Crim. Law Bulletin Art. 1, 2007.
Barbara O’Brien & Catherine M. Grosso, Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go Where the McCleskey Court Wouldn’t, Mich. State Law Review, Vol. 2011, No. 3, 2011.
Mary R. Rose & Jeffrey B. Abramson, Data, Race and the Courts: Some Lessons on Empircism from Jury Representation Cases, Mich. State Law Review, Vol. 2011, No. 3, 2011.
SpearIt, Enslaved by Words: Legalities & Limitations of “Post-Racial” Language, Mich. State Law Review, Vol. 2011, No. 3, 2011.
Victor L. Streib, Gendering the Death Penalty: Countering Sex Bias in a Masculine Sanctuary, Ohio State Law Journal, Vol. 63: 433, 2002.
Isaac Unah, Empirical Analysis of Race and the Process of Capital Punishment in North Carolina, Mich. State Law Review, Vol. 2011, No. 3, 2011.
Note, Rethinking McClesky v. Kemp: How U.S. Ratification of the International Convention on the Elimination of All Forms of Racial Discrimination Provides a Remedy for Claims of Racial Disparity in Death Penalty Cases, 22 Fordham Int’l L.J. 2270, 1999.
Last updated on October 31, 2011.
1 International Convention on the Elimination of All Forms of Racial Discrimination, Art 5(a).
2 International Convention on the Elimination of All Forms of Racial Discrimination, Art. 1.
3 Narrainen v. Norway, Communication No 3/191: Norway, 15/03/94, U.N. Doc. CERD/C/44/D/3/1991 at para. 9.2 (considering whether racist comment by juror in criminal case violates Article 5(a)).
4 International Convention on the Elimination of All Forms of Racial Discrimination, Art. 1. Note, Rethinking McClesky v. Kemp: How U.S. Ratification of the International Convention on the Elimination of All Forms of Racial Discrimination Provides a Remedy for Claims of Racial Disparity in Death Penalty Cases, 22 Fordham Int’l L.J. 2270, 1999.
5 Third Periodic Reports of States Parties Due in 1999: Addendum: United States of America, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/351/Add.1, Sep. 2000.
6 ICCPR General Comment 18: Non-Discrimination, para. 12, Human Rights Committee, Nov. 10, 1989.
7 Willie L. Celestine, Case No. 10.031 Resolution No. 23/89, Sep.28, 1989, at http://www.cidh.oas.org/annualrep/89.90eng/USA10.031.htm.
8 Andrews v. United States, Case 11.139, Report No. 57/96, Inter-Amer. Ct. of Human Rights, OEA/Ser.L/V/II.95 Doc.7 rev. at 570, 1997.
9 Report of United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Mission to the United States of America, U.N. Doc. E/CN.4/1998/68/Add.3, para. 2, para. 148, 1998.