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| Race & Ethnic Diversity | 06 August 2001 |
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| Race & Ethnic Diversity | 06 August 2001 |
Reply of the United States to Questions from the U.N. Committee on the Elimination of Racial DiscriminationU.S. Assistant Attorney General Ralph F. Boyd, Jr. Mr. Chairman, Mr. Rapporteur, Distinguished Experts and Honorable Members of the Committee: It is an honor to appear before you again, with my colleagues from the U.S. delegation, to discuss the questions you asked, and concerns you raised regarding the United States report of September 2000 concerning its compliance with the Convention on the Elimination of all Forms of Racial Discrimination. My colleague, the Honorable Lorne Craner, the U.S. Assistant Secretary of State for Democracy, Human Rights, and Labor, and I will answer the many questions that were put us in the order in which they were asked. Generally speaking, I will respond to those questions that referred to matters within the purview of the Department of Justice. Assistant Secretary Craner will respond to those questions with which the Department of State is more familiar or has particular expertise. I should also say at the outset that in certain instances, a committee member may not have asked a specific question, but rather expressed a general "concern" about an issue. Where appropriate, we have attempted to frame the concern in the form of a question, to which we then respond. We have done this in an effort to respond more fully to all of the committee's stated concerns, regardless of how or in what form those concerns actually were expressed. In other words, we want to do as much as we can to facilitate and advance the constructive dialogue between this Committee and our delegation that I believe was begun on Friday. Such a dialogue can only contribute positively to our efforts to rid our country of racial discrimination and its legacies. I will begin with the questions put to us on Friday by the Country Rapporteur, the Honorable Yuri Rechetov. Q: What is the official view of the United States with respect to the legal status of treaties with Indian tribes? Does the United States regard such treaties as international treaties to which the United States is a party? A: The United States Supreme Court has held that "the power to make treaties with the Indian Tribes is, as we have seen, coextensive with that to make treaties with foreign nations." United States v. 43 Gallons of Whiskey, 93 U.S. 188 (1876). That said, while Indian treaties often recognize the sovereignty of Indian tribes, Indian treaties differ from foreign treaties. Under U.S. law, Indian tribes are "domestic dependent nations." There is a special trust relationship between these nations and the United States. There are likewise special canons of construction, recognized and utilized by the United States Supreme Court, that require that Indian treaties be construed in favor of the Indians. These rules are based upon a unique trust relationship between the United States and Indian tribes. They do not apply to international treaties. Q: What is the position of the United States with respect to Congress's power to unilaterally amend or rescind treaties with Indian tribes? A: Indian treaties can be abrogated unilaterally by Congress, if Congress clearly expresses an intent to do so. The United States Supreme Court has adopted several special canons of construction for Indian treaties which, taken together, create a strong presumption that treaty rights have not been abrogated or modified by subsequent congressional enactments. These rules, variously stated, establish that Congress must show a "clear and plain" intention to abrogate Indian treaty rights before any Congressional action will be determined to have abrogated such rights. Q: Why hasn't the United States incorporated the provisions of the Convention directly into U.S. domestic law? (also Mr. Fall) A: Nothing in the Convention requires States Parties to incorporate the provisions of the Convention directly into their domestic law. It is a basic principle of international law and practice that it is up to party States to determine how best to implement their obligations under international agreements. In the United States, we have chosen to implement our international treaty obligations by passing implementing legislation when necessary. As we have indicated in our report, at the time of ratification it was determined that U.S. law was in compliance with our obligations under the Convention. Accordingly, no implementing legislation was necessary. The real question, of course, is not whether the Convention should or should not be directly incorporated into U.S. law, but whether the obligations accepted by the United States in adhering to the Convention are, in fact, guaranteed to people within the United States. The U.S. September 2000 report drafted by the previous Administration makes clear that current U.S. laws and policies comply with the obligations of the United States under the Convention, and this Administration has had no occasion to question that conclusion. Q: In light of the principle that a State cannot rely on the independence of its judiciary as a justification for non-compliance with its treaty obligations, how does the United States respond to the Committee's concern that certain decisions of the U.S. Supreme Court, particularly in the area of racist speech, have "complicated" U.S. compliance with the Convention? (also by Mr. Diaconu, Ms. Britz, Mr. Tang, and Mr. Thornberry) A: The United States has not disputed the proposition that a State cannot rely on the independence of its judiciary to justify a failure to comply with its treaty obligations, and indeed, the U.S. remains in compliance with its obligations under the Convention. With regard to the two examples cited by the Committee, decisions of the U.S. Supreme Court have neither complicated compliance with its obligations nor jeopardized such compliance. First, as the Committee knows, the United States took
a reservation to the Convention whereby it accepted no obligation
under Article 4 of the Convention that conflicts with constitutional
limitations on restrictions of freedom of speech and association.
Hence, to the extent the Supreme Court of the United States interprets
and applies constitutionally permissible restrictions on speech, it
also determines the contours of Article 4. Q: What is the United States' position with respect to concerns about the disparate treatment of racial and ethnic minorities in the American criminal justice system, with specific respect to racial profiling, mandatory minimum sentencing, disproportionate incarceration levels, and penalties for crack and powder cocaine? What is this Administration doing to address these disparities? (also Mr. Hevia, Mr. Rodriguez, Mr. de Gouttes, Mr. Fall, Ms. Bardill, Mr. Shahi) A: The United States strongly condemns disparate treatment of racial and ethnic minorities. This is especially the case with respect to our criminal justice systems. Discrimination on the basis of race or ethnicity within our criminal justice systems is prohibited in the United States. The Supreme Court has already held that what we recently have come to refer to in America as "racial profiling" is unconstitutional. In Whren v. United States (1996), the Court stated with a unanimous voice that "the Constitution prohibits selective enforcement of the law based on considerations such as race" under the Equal Protection Clause of the Fourteenth Amendment. The Fourteenth Amendment applies to all of our 50 states; the Fifth Amendment applies the same prohibitions to the federal government. Our federal law has long empowered aggrieved people to file civil lawsuits seeking redress for violations of the Constitution, under what is known in U.S. law as Section 1983 - that is, Section 1983 of Title 42 of the United States Code. Federal courts have permitted Section 1983 suits to proceed against police officers who engage in racial profiling practices on numerous occasions, and many plaintiffs have already settled their claims for substantial money damages. In addition, the federal government seeks to ensure compliance with the constitutional requirement of nondiscrimination by conditioning federal funds for state and local law enforcement agencies on commitments not to engage in discrimination. Finally, the United States Department of Justice can bring legal actions to enforce those protections, pursuant to Title 42, Sections 3789d(c)(3) and 14141 of the United States Code, and it has done so - and I can assure this Committee that it will continue to so do if and when necessary. As I said on Friday, the fight to eradicate racism requires continued and constant vigilance. The Bush Administration appreciates this and is committed to eliminating racial profiling practices. Both the President and the Attorney General have declared emphatically that racial profiling is wrong and must be ended. In connection with this, the President has forwarded a Memorandum to the Attorney General directing him to review federal law enforcement authorities use of race as a factor in conducting stops, searches, and other investigative procedures. In response to the President's directive, and the President's stated desire that racial profiling be eradicated, the Attorney General has undertaken a comprehensive racial profiling initiative designed to do precisely that. First, the Attorney General is taking personal responsibility for coordinating efforts across the federal government to collect data on racial profiling and develop specific recommendations aimed at ending these unlawful practices. He has written Congress, asking both the House of Representatives and the Senate to enact legislation directing the Department of Justice to study this problem and collect relevant data from federal law enforcement agencies, and work cooperatively with state and local law enforcement agencies to assess the extent and nature of any such practices. Attorney General Ashcroft has made it abundantly clear that if Congress fails to act promptly, as Attorney General, he simply will launch a study by the Department of Justice on its own. In fact, he has enlisted the help of Deputy Attorney General Larry Thompson and directed that the Deputy Attorney General and his staff begin reviewing the nature and extent of racial profiling by federal law enforcement agencies to determine what data currently exist and what rules are already in place to combat racial profiling. In addition, my division of the Department of Justice, the Civil Rights Division, is also actively involved in the Administration's efforts to eradicate racial profiling. The Division can provide technical and expert assistance to state and local police departments, which may include training, policy development, and community outreach plans and programs. The Division likewise stands ready to work cooperatively with local police departments that may experience a pattern or practice of racial profiling and that wish to implement reasonable measures and meaningful steps to eliminate these. And, as I mentioned earlier, the Civil Rights Division has the authority to bring what are commonly referred to as "pattern or practice" cases pursuant to Title 42, Section 14141 of our United States Code. Our recent experience, however, is that the leadership that President Bush and Attorney General Ashcroft have shown on this issue, along with the leadership of national police organizations, is already driving substantial reform. Most police departments are willing to work with us in instances where problems are identified. These departments have every incentive to correct such problems, and therefore better serve - and indeed be seen as better serving - the constituent communities they police. With respect to mandatory minimum sentencing, sentencing in the federal system is governed by the United States Sentencing Guidelines, which guide, and in some cases limit, the discretion federal judges have regarding the length of a convicted person's sentence. Racial and ethnic status may not properly be considered by judges when determining culpability or an appropriate sentence. The nature and severity of the crime, coupled with a defendant's criminal history, and an array of other established mitigating and aggravating factors are considered by federal judges in imposing sentences within specified ranges established under the federal Sentencing Guidelines. With respect to numerical disparities in incarceration levels, it bears repeating that it is the unequivocally clear and emphatic position of the United States that racial discrimination is wrong and must be eliminated where it is found, and especially when it is found to exist in the criminal justice system. And I do not question and indeed would not question that it can, at times, be found - improperly so - in our justice system; to reiterate what we stated in paragraph 20 of the U.S. report, "no country or society is completely free of racism, discrimination or ethnocentrism." However, it also bears repeating what we explained in the United States report, in paragraph 347 and elsewhere, that the sources and causes of numerical disparities in incarceration rates for people of different races are complex and depend on a number of factors, some of which may be related to racial discrimination in the criminal justice system, but others of which are not, such as differences in educational and economic opportunities, and family background. Moreover, we must analyze claims of racial disparity or disproportionality in the criminal justice system not only from the standpoint of our inmate population, but also from that of their victims, as Mr. DeGouttes and other members of this Committee have pointed out - victims who are also disproportionately people of color. Indeed, prevalent crime, especially violent crime, is an especially serious impediment to improving economic opportunities for, and the health and safety of, people who reside in vulnerable, disadvantaged communities in our country. Often these communities are communities of color, that is, communities populated predominately by racial and ethnic minorities. Crime also threatens more directly the well-being of our citizens who live in these communities, aggravating their efforts to live, work, go to school, and even worship in relative safety. These tensions and competing concerns are presented in bold relief in the debate over the sentencing guidelines for crack and powder cocaine-related crimes, which many experts have raised concerns about. Different penalties for crack and powder cocaine have been established under the Sentencing Guidelines, to which I referred earlier, based upon extensive study of the relative danger each substance poses to the community. Both the Sentencing Commission and the Attorney General continue to examine the cause of remaining disparities. As noted in the U.S. September 2000 report at paragraph 316, the previous Administration reviewed and ultimately rejected calls to equalize the penalties for crack and powder cocaine offenses. I happen to have personal experience grappling with this very difficult and morally challenging issue. As an Assistant U.S. Attorney in Boston during the 1990s, I argued in cases like United States v. Andrade that the cocaine base sentencing guideline is constitutional. I prevailed in that argument in both the district court (that is, the trial court) and the U.S. Court of Appeals for the First Circuit. I agree with those decisions. Although I continue to be concerned about the conditions that contribute to the number of young men of color who are convicted of selling crack cocaine, and sentenced under the cocaine base sentencing guideline, I am even more concerned about the fact that - as reflected in the U.S. congressional testimony given in connection with the promulgation of the cocaine base sentencing guideline - disadvantaged, urban communities of color are disproportionately (indeed almost exclusively) devastated by the crack cocaine trade and - significantly - violence associated with that trade. Whether this laudable desire to protect especially vulnerable communities is worth the resulting high incarceration rates for African-American young men is a matter of legitimate debate in our country. However, wherever one comes out on this issue, it seems inarguably clear that part of the substantial work before us as a nation is to recommit ourselves to dealing more effectively with issues of poverty, high rates of illegitimacy, substandard education, and other persistent social problems that continue disproportionately to plague people of color in America, especially African-Americans. Q: Please also discuss the Bush Administration's efforts to combat police brutality, racial profiling, prejudice within police departments, and less aggressive prosecutions of cases involving black victims. (also Mr. Hevia, Mr. Rodrigeuz, and Mr. de Gouttes) A: Discrimination on the basis of race or ethnicity within the criminal justice system is prohibited in the United States. All Americans have the constitutional right to be free of excessive force and racially discriminatory police and prosecutorial conduct. This Administration fully intends to investigate and, where appropriate, prosecute cases in which police brutality or racial profiling has occurred. Civil Rights Division lawyers are empowered by statute to undertake these prosecutions. We are aided in this effort by Assistant U.S. Attorneys (federal prosecutors) from the 94 U.S. Attorneys' offices that are spread out across the United States. For example, working with Assistant U.S. Attorneys in Los Angeles, Civil Rights Division lawyers used Title 18, Section 242 of the United States Code to prosecute, convict, and incarcerate the police officers involved in the beating of Rodney King, an African American man who had led police on a long car chase through Los Angeles. The Department of Justice investigates about 2,500 reports of police misconduct every year. In addition to criminal prosecutions, as I mentioned earlier the federal government takes an active role in preventing police misconduct by bringing lawsuits against law enforcement agencies that engage in a pattern or practice of police misconduct. The Department of Justice also provides frequent training to police organizations, emphasizing the serious repercussions for violating basic constitutional rights and stressing that criminal law enforcement must be performed in a nondiscriminatory and fair manner. Moreover, the federal government has also investigated police organizations, several of which have resulted in the adoption of new policies and monitoring procedures designed to reform management practices on a department-wide basis in order to help prevent misconduct, such as the excessive use of force and racial profiling in conducting traffic stops. For example, in 1999, the Department of Justice filed suit alleging a pattern or practice of racial discrimination by the New Jersey State Police, and simultaneously entered into a settlement with the state that provides comprehensive remedies aimed at eliminating police practices that discriminate against racial and ethnic minorities. A good example of the use of both criminal and civil remedies to combat police misconduct involves several New York City police officers who recently brutally assaulted a black detainee. Just this past year, the officers were convicted criminally in a New York federal court on federal civil rights charges. The officer who initiated the assault was sentenced to 15 years, 8 months in federal prison, without the possibility of a parole. He also was ordered to pay more than 25 million dollars in restitution. As a supplement to the criminal convictions of several police officers, a multi-million-dollar settlement recently was announced in the civil lawsuit brought against the police department by the victim of the police attack. Q: What is the United States position with respect to racial disparities in the application of the death penalty to blacks, including black juveniles? (also Mr. Hevia, Mr. Rodriguqez, Mr. de Gouttes, Mr. Tang, Ms. Bardill, Mr. Shahi, and Mr. Bossuyt) A: The United States Constitution and federal law impose strict protections to ensure that race does not affect or influence decisions concerning whether to impose the death penalty. Federal law expressly prohibits the imposition of the death penalty on the basis of race, and requires that each capital case be considered on an individual basis. These prohibitions against racial discrimination apply not only to prosecutors and judges as government officials, but also to jurors, each of whom is a private citizen. For example, Section 3592(f) of Title 18 of the United States Code specifically requires that the judge presiding over a capital case instruct the jury deliberating about a death sentence not to consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim, and not to recommend a sentence of death unless it would have recommended that sentence for the subject crime regardless of such criteria. In addition, federal law further requires that, when returning a verdict, each deliberating jury submit a certificate, signed by each juror, declaring that his or her decision was not based on discriminatory criteria, and that he or she would have made the same recommendation regardless of the race, color, religious beliefs, national origin, or gender of the defendant or victim. Any juror who makes a false statement on this certification may be criminally liable under our perjury laws, and subject to punishment of up to 5 years imprisonment and a $250,000 fine. On June 6, 2001, the United States Department of Justice issued a report titled "The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review," a copy of which can be found on the Internet at http://www.usdoj.gov/dag/pubdoc/deathpenaltystudy.htm. The report completes a survey and assessment of the federal death penalty system that was begun during the Clinton Administration. The Department of Justice published an initial report setting out the results of that study on September 12, 2000, a copy of which can be found on the Internet at http://www.usdoj.gov/dag/pubdoc/dpsurvey.html. Attorney General Janet Reno had wished to supplement the information that was available at the time of the September 2000 report, and the Department of Justice undertook further information gathering and analysis. Further study was carried out and its results were analyzed. Under existing Justice Department procedures, United States Attorneys cannot decide unilaterally whether to seek the death penalty in cases involving capital charges, but are required to submit all such cases to a central review procedure. These cases are reviewed by a committee of senior attorneys, and the Attorney General personally makes a final decision whether to seek a capital sentence. The September 2000 report found that at no stage of the review process were decisions to recommend or approve the seeking of a capital sentence made at higher rates for Black or Hispanic defendants than for White defendants. The data available in the preparation of the September 2000 report was limited to information concerning cases involving capital charges that were submitted to the review procedure. Data was not available concerning cases in the United States Attorneys' offices which would factually support charging an offense punishable by death, but which were not actually charged as capital crimes submitted for review. Attorney General Reno accordingly directed that more complete information be obtained. The United States Attorney offices submitted this supplementary information subsequent to the September 2000 report. Like the data considered in the September 2000 report, the augmented data provided no evidence that minority defendants are subjected to bias or otherwise disfavored in decisions concerning capital punishment. Within the broader universe of potential capital cases, capital charges and submission to the review procedure for a decision about seeking the death penalty did not occur with any greater frequency in cases involving Black or Hispanic defendants than in cases involving White defendants. While the Justice Department's review of existing federal death penalty procedures produced no evidence of bias against racial or ethnic minorities, it did suggest that changes could be made to promote public confidence in the process's fairness and to improve its efficiency. Some of these changes would effectively broaden the scope of the process, including submission of information concerning a larger class of cases by the United States Attorney Offices. Other changes would simplify and abbreviate the process in cases where the decision is against seeking a capital sentence. Finally, with regard to juveniles, we note that our federal law does not provide for the execution of offenders who were juveniles at the time of the offense. The general issue of the death penalty, and specifically whether it should be applied to juveniles, is a matter of considerable debate, discussion, and discourse in the United States. Accordingly, the law regarding the death penalty varies widely among our 50 states. Some states, including my home state of Massachusetts, have abolished the death penalty entirely, whereas other states have followed the federal model of refusing to extend capital punishment to juveniles. Still others, like Illinois, have responded to the debate by imposing a complete moratorium on the death penalty so that issues relating to its administration can be studied further, and determinations made about the accuracy and reliability of a system that provides for the "ultimate sanction" for murders committed under particular egregious circumstances. Q: Please provide statistics regarding racial discrimination in jails. A: Such statistics are very hard to capture. The federal system, and each state and each state facility, would have to keep track of ever changing cell assignments. We do not have a centralized system that collects this data. There should be no doubt, however, that the United States strongly condemns racial segregation and discrimination in prisons and jails, and that our laws strictly forbid such practices. Racial discrimination in prisons and jails is prohibited by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The United States Department of Justice is authorized to enforce the constitutional guarantee against racial discrimination in state and local correctional facilities under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq., and Title III of the Civil Rights Act of 1964, 42 U.S.C. § 2000b, which prohibits discrimination in public facilities. Under these statutes, the Department of Justice has filed lawsuits to obtain federal court orders to end discrimination and discriminatory practices. Inmates also can bring litigation on their own behalf to remedy racial discrimination in state and local correctional facilities under Section 1983, and the United States Constitution also allows inmates to file suits over racial discrimination in the federal prison system. Although some prisons and jails racially segregated inmates in the past, they no longer do so - in part due to successful litigation filed by the Department of Justice nearly 30 years ago. Q: What efforts is the Administration making with regard to addressing the relative lack of racial and ethnic minority participation in positions of public authority, including, among other things, the judiciary? (also Mr. Rodriguez and Mr. de Gouttes) A: President Bush is committed to an inclusive Administration, one that includes people of high caliber, excellent credentials, and good character from all walks of life. For example, he has appointed the first African-American Secretary of State - Colin Powell, who many of you will recall also served with great distinction as America's first African-American Chairman of the Joint Chiefs of Staff - the highest military position in the United States. The President also has appointed Condoleeza Rice, an African-American, to serve as National Security Advisor; Ms. Rice is the first woman to hold that key post. Another African-American, Roderick Paige, serves as Secretary of Education, which in many meaningful respects is ground zero for many of the President's initiatives for reforming education, and improving dramatically educational opportunities for racial and ethnic minorities, and disadvantaged people all across America. The Secretary of Housing and Urban Development, Mel Martinez, is Hispanic, as is Alberto Gonzales, who serves as Counsel to the President. In a very real sense, Counselor Gonzales is the President's lawyer. And for the first time in American history, a President's cabinet includes two Asian-Americans, Secretary of Labor Elaine Chao and Secretary of Transportation Norman Mineta. The President also has filled many other senior positions in the White House and throughout the government people of high caliber and diverse backgrounds. For example, in the Department of Justice - where I am honored and privileged to serve - Larry Thompson, another African-American, serves as the Deputy Attorney General of the United States. In that capacity, Mr. Thompson is responsible for overseeing the day-to-day operations of the 128,000-person Department of Justice. By analogy, if Attorney General Ashcroft can be seen as the Chairman of the Board, Mr. Thompson is the Chief Operating Officer of the Department. In addition, Viet Dinh, who along with other members of his family immigrated to America from Viet Nam, serves as Assistant Attorney General for Policy, and Charles James, an African-American, oversees - among other matters of tremendous importance - the government's case against Microsoft as Assistant Attorney General and Chief of the Antitrust Division of the Department of Justice. And finally, as you know all too well, I head the Civil Rights Division of the Department, a division which has a distinguished history and played a prominent, if not preeminent role in advancing the cause of the civil rights in America. In addition, the President and those that have been selected to assist him, are determined to ensure that people from all racial and ethnic backgrounds are fairly represented in the federal judiciary as well. Indeed, many of President Bush's very first nominations for vacancies on the federal bench are people of color. They include Roger Gregory, an African-American lawyer whom the President nominated - and the U.S. Senate promptly confirmed - for a seat on the United States Court of Appeals for the Fourth Circuit, which sits in Richmond, Virginia. Similarly, the President also nominated Miguel Estrada to serve on the United States Court of Appeals for the District of Columbia Circuit. Like Assistant Attorney General Dinh, Mr. Estrada immigrated to America, in his case, from Honduras. They are two examples of the breadth of talented people from varied backgrounds whom the President has chosen to serve as members of our federal judiciary. Similarly, we see today increased representation from racial and ethnic minority groups. On the federal level, there are over fifty members of the United States Congress who are members of the Congressional Black Caucus or Congressional Hispanic Caucus. On the state level, there are now ten times as many African-American legislators as there were in 1970. On the municipal level, as of 1996 there were 290 African-American mayors in the southern region of our country; in 1968, there were only 3. Between 1967 and 1993, African Americans won mayoral elections in 87 cities with populations of 50,000 or more. Two-thirds of those were elected in cities in which blacks were a minority of the eligible voters. Q: What is the United States position on its 1863 treaty with the Shoshone tribe? Is the United States discriminating in the protection of property rights with respect to the tribe, including seizing the tribe's lands and allowing the land to be used for dumping radioactive material? (also by Mr. Tang and Mr. Thornberry) As is the case with the Shoshone, many Native American tribal land claims are based on aboriginal title that creates enforceable property rights in tribes against third parties or states. The doctrine of aboriginal title is a judicially created doctrine rooted in colonial concepts of property ownership that arose from conflicting claims between the European colonists and Native Americans over land which was lightly populated due to the migratory nature of some tribal lifestyles. The claims were first addressed in the U.S. Supreme Court decision Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574 (1823), which held that as a result of European discovery, the Native Americans had a right to occupancy and possession, but that tribal rights to complete sovereignty were necessarily diminished by the principle that discovery gave exclusive title to those who made it. As a result, the tribes' ability to sell or convey the property was subject to the approval of the sovereign. Subsequent cases reaffirmed that the tribes retained enforceable property rights against third parties or states. See United States ex rel. Hualpai Indians v. Santa Fe Pacific Railroad, 314 U.S. 339 (1941). Aboriginal title also can carry with it enforceable hunting, fishing and other usufructary rights confirmed by recent U.S. Supreme Court decisions. While not protected under law by the Fifth Amendment to the U.S. Constitution, Congress has taken measures to compensate tribes directly for the taking of aboriginal rights. Congress, in 1946, established the Indian Claims Commission (ICC), specifically to resolve Indian claims against the federal government that rested on a variety of bases, including claims based on aboriginal title that might not otherwise be compensated at law. Given the detailed nature of the question and legal complexities of the issue, this question will require further research and examination. In order to properly address the a question specific to one of over 560 tribes, the U.S. will need to consult with the Regional Offices of the Department of Interior with responsibilities to the Shoshone tribe. Let me now turn to the questions of Mr. Hevia. Q: The U.S. September 2000 report lists a number of racial disparities in America, including life expectancy, infant mortality, maternal mortality, the receipt of medical services, poverty, and access to educational opportunities. What is the United States doing to address these disparities? (also Ms. Bardill and Mr. Shahi) A: The Bush Administration is committed to eliminating disparities in health care among racial and ethnic minorities and has given the United States Department of Health and Human Services (HHS) primary responsibility for achieving results that reflect this commitment. HHS is actively implementing Healthy People 2010 - the United States's blueprint to eliminate racial and ethnic disparities in health care for all people in America by the year 2010. The overarching goals of the Department's Healthy People 2010 initiative are to increase the quality of life and life expectancy of all population groups, and to advance the knowledge needed to enable the Nation to meet the challenging goal of eliminating disparities in access to, and the quality of, health care afforded to racial and ethnic minorities. HHS has prepared a comprehensive plan to achieve these goals by ensuring access to quality health care, conducting research to prevent and treat diseases that disproportionately affect minorities, and eliminating disparities through community outreach, public education, and public-private partnerships. The Department has issued a number of grant awards to help eliminate health care disparities by expanding access to health care for medically under-served populations and to help poor and uninsured individuals with HIV/AIDS obtain primary care, support services and life-sustaining medications. HHS also has a comprehensive national health research agenda that reflects the current and emerging health needs of racial and ethnic minorities. A National Center on Minority Health and Health Disparities has been established in the National Institutes of Health, which will conduct and support research, training, dissemination of information, and other programs concerning the status of racial and ethnic minorities regarding health care. HHS also is promoting and supporting research capacity-building activities in minority and medically under-served communities, focusing on research infrastructure development, and increasing the number of under-represented minority students with an interest in pursuing careers in biomedical and bio-behavioral research. To assist health care providers in eliminating racial and ethnic barriers in health services, both the Office of Minority Health and the Office for Civil Rights at HHS have developed national standards on providing culturally and linguistically appropriate health care services. The Department also is focusing resources on public education and outreach programs, and sponsoring health disparities conferences and funding community projects. In addition, the Department has established a number of public-private partnerships to address racial disparities in health care. No Child Left Behind (NCLB), President Bush's legislative proposal for reforming federal programs for elementary and secondary education, addresses many of the obstacles that prevent minority students from receiving a high-quality education. NCLB will promote high educational standards and accountability in elementary and secondary schools, which will help to ensure that all students receive a high-quality education. Several components of this proposal will help to improve the educational opportunities of all students, including setting and enforcing standards and accountability, expanding school-wide reform programs, improving teacher quality, and enhancing education through technology. NCLB represents the first time that the federal government
would require states and districts to specifically consider achievement
gaps based on race, ethnicity, and low-income status in determining
whether schools and districts are performing adequately, and whether
they should be subject to corrective actions. This new focus on minority
and at risk students in holding schools accountable encourages educators
to focus their attention on students who all too often are poorly
served by the current educational system. Q: The report also discusses residential segregation. What is the United States doing to address this concern? (also Mr. Rodriguez, Ms. Bardill, and Mr. Shahi) A: Home ownership remains at the heart of the American
dream. The Fair Housing Act, passed in 1968, guarantees that this
right to own a home and to live in a community free of residential
segregation will not be denied on the basis of race or color, as well
as other grounds. One of the purposes of this statute was "to
replace the ghettos 'by truly integrated and balanced living patterns.'"
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972). The Department of Justice brings lawsuits where there is a pattern or practice of discrimination or a denial of rights to a group of persons. For example, these suits have included actions against predominantly White suburban jurisdictions that tried to block the development of housing likely to attract racial and ethnic minorities from neighboring cities, apartment complexes that turned away minority apartment seekers, lenders and residential insurance providers that refused to do business in minority areas, and real estate companies that steered home-seekers to different geographic areas based on race. The Fair Housing Act also encourages states and local governments to adopt fair housing laws with prohibitions and enforcement provisions similar to federal law. Where HUD has determined that state or local laws are substantially equivalent to the federal provision, the Fair Housing Assistance Program (FHAP) provides federal financial assistance to the state and local enforcement agencies to create a coordinated intergovernmental enforcement effort to further fair housing practices and to encourage the agencies to assume a greater share of the responsibility for the administration and enforcement of fair housing laws and ordinances. Thirty-eight states and 84 local governments have been determined to have substantially equivalent laws and ordinances. HUD also provides funds to private non-profit organizations under the Fair Housing Initiatives Program (FHIP) to assist projects and activities, such as education, training, fair housing testing, and other efforts that combat housing discrimination and increase compliance with fair housing laws. Q: The Committee has concerns about the United States's use of the island of Vieques for naval bombing practice. What is the U.S. position on this matter? A: On June 15, 2001, President Bush announced that the U.S. Navy will leave Vieques by May 2003. This decision establishes a firm date for ending military exercises on the island. Although the United States recognizes that this decision will not fully satisfy those who have demanded that the U.S. Navy leave Vieques immediately, the U.S. is exploring suitable alternatives within the context of the President's decision. Since 1999, the U.S. Navy has funded numerous studies designed to determine if their past, present or future operations pose a health risk either to the residents of Vieques or to the environment. None of the analyses performed to date indicate that their actions represent a risk of this nature. To supplement these past efforts, the U.S. Navy is supporting additional studies being conducted by the Agency for Toxic Substances and Disease Registry and the Centers for Disease Control. In addition, the U.S. government has paid claims of approximately $1 million to the family of David Sanes, the Navy employee who was killed in April 1999 at the Vieques range facility. Q: How does the United States respond to allegations
that the denial of the claims of Alaskan Natives to their ancestral
lands is racial discrimination? Now I will turn to the issues raised by Mr. Rodriguez. Q: How would the United States respond to a recommendation by the Committee that it investigate its compliance with its obligations under the Convention at the state and local level? (also Mr. Hevia) A: At the time of ratification it was determined that the United States was in compliance with our obligations under the Convention with regard to those matters that have traditionally been reserved for state regulation. Nevertheless, we recognize the importance of ensuring that state and local law and, more importantly, actual practices at those levels of government, do not fall below the standards set by the Convention. The Executive Order 13107, entitled "Implementation of Human Rights Treaties," establishes an interagency working group whose purpose is to provide "guidance, oversight, and coordination with respect to questions concerning the adherence to and implementation of human rights obligations and related matters." Among the working group's functions is the development of proposals and mechanisms for improving the monitoring of actions by the various states to ensure that the Convention is being implemented at the state level. The Working Group regularly considers issues related to the implementation of the Convention - and to other human rights treaties - at the state level. As the Committee can see from this Initial U.S. Report,
federal laws addressing racial discrimination are extensive, complex
and multi-faceted. Hence, for our Initial Report, we decided to focus
primarily on federal laws that are most directly relevant and responsive
to U.S. obligations under the Convention. However, in preparation
for our presentation of this report, we contacted state and local
officials throughout the fifty states to request information that
would assist us in understanding how and the extent to which the Convention
is being implemented at the state and local level. We received many
encouraging responses, which we are following up on to include in
our next periodic report to this Committee. A: The Bush Administration is firmly committed to enhancing our nation's efforts to eliminate discrimination. Although his Administration has been in place for only a few months, President Bush and Attorney General Ashcroft have already announced several key civil rights initiatives, some of which I referred to in my opening statement. Those initiatives include voting rights reform, the elimination of the practice of racial profiling, the vigorous enforcement of fair housing laws, the protection of new immigrants by prosecuting those who exploit their vulnerability, and the creation of new opportunities for people with disabilities. Moreover, President Bush has developed a set of broad, comprehensive policies, programs and initiatives that will significantly advance the cause of civil rights. He has called on the federal government to work relentlessly to eliminate educational practices within and among schools that contribute to deficiencies in student achievement and that limit access to quality education. He has emphasized support for faith-based and community-based groups that serve disadvantaged people throughout America. And he is focusing on revitalizing America's economic base and creating increased economic opportunities for all Americans. The Executive Orders described in the United States report remain in effect and are the law of the land. In fact, President Bush announced a significant new civil rights Executive Order that directs federal agencies to swiftly implement the United States Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). Olmstead dealt with people with disabilities who are forced to enter institutions in order to be able to receive needed medical and social services. The President committed the Administration to supporting community-based alternatives for individuals with disabilities. The Executive Order directs federal agencies to work with state and local governments as they implement plans to provide more Americans with the opportunity to live close to their families and friends, and not be confined unnecessarily to institutions. The Executive Order also directs federal agencies to evaluate their own policies, programs, statutes, and regulations to determine whether any should be revised or modified to improve the availability of community-based services for qualified individuals with disabilities. Q: This Committee is troubled by the United States's
reservations with regard to racist speech and the regulation of private
conduct. How does the United States expect to fulfill its obligations
under the Convention to eliminate racial discrimination without addressing
racist speech? Will the United States consider withdrawing these reservations?
(also Mr. de Gouttes, Mr. Fall, Mr. Diaconu, Ms. Britz, Mr. Tang,
and Mr. Thornberry) The First Amendment to the U.S. Constitution sharply curtails the government's ability to restrict or prohibit the expression or advocacy of certain ideas, no matter how distasteful. For American citizens, this is a cornerstone of our democracy which has resonance with regard to all media, from print to the Internet. It has long been a foundation of American society that the most effective way of combating objectionable speech is through more and better speech, not through censorship. The United States has long condemned racism and racial discrimination as a matter of national policy, and it will continue to do so - both domestically and internationally. The Department of Justice has brought criminal prosecutions against defendants for harassing, intimidating, and threatening people on the basis of race. For example, the United States charged defendants with interfering with federally protected rights to education where racist slogans threatening violence were written on the car of an African-American student. Similarly, the United States convicted members of racist organizations for interfering with the housing rights of minorities by distributing threatening, racist leaflets. The Department of Justice frequently charges defendants for threatening people on the basis of race through letters, phone calls, leaflets, and similar speech. In addition, cross burnings intended to intimidate African-Americans in the enjoyment of their property rights have been successfully prosecuted. These prosecutions are consistent with the principles of freedom of speech and association set forth in the First Amendment of the U.S. Constitution. U.S. law can criminalize only speech and conduct, such as threats and acts of intimidation and violence, that are not constitutionally protected. Persons within the United States may speak, but not threaten, and associate, but not conspire to cause harm. Although acts of racist speech and membership in racist organizations cannot in general be proscribed, several U.S. laws do criminalize speech that rises to the level of threatening, harassing, or interfering in the exercise of rights. See, e.g., 18 U.S.C. §§ 241, 245, 247; 42 U.S.C. § 3631. As noted above, where it does, we will act, and vigorously so. Q: What is the United States's position with regard to inappropriate treatment of undocumented migrant workers? (also by Mr. Tang) A: The United States government devotes significant resources to combat the mistreatment of immigrants, both documented and undocumented. Under United States law, immigrants, both legal and illegal, enjoy a broad range of rights shared with others in the country, including many constitutional and statutory rights against racial and national origin discrimination. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution protects all persons, not just citizens. The Fair Labor Standards Act, which provides for minimum wages and overtime pay, applies equally to all employees regardless of immigration status. The Agricultural Workers Protection Act provides special economic and other legal protections for those who travel to the United States to perform seasonal agricultural labor. Moreover, emergency medical care and certain non-cash benefits are available to all persons. In addition to these rights and protections, the Immigration and Nationality Act prohibits employment discrimination based on citizenship status and national origin. The Office of Special Counsel for Immigration-Related Unfair Employment Practices, which I supervise, enforces this Act. Its attorneys work with local communities to seek out and prosecute those who discriminate based on citizenship status. With regard to education, it is unlawful to deny school children in the United States a free public education on the basis of their immigration status. See Plyler v. Doe, 457 U.S. 202 (1982). The Office of Migrant Education (OME) of the United States Department of Education works to improve teaching and learning for the Nation's estimated 700,000 migratory children and youth. Programs and projects that OME administers are designed to enable children whose families migrate to find work in agricultural, fishing, and timber industries to meet the same challenging academic content and student performance standards that are expected of all children. Migrant students also receive educational services under many other Department of Education grant programs. The United States government has several programs designed to stop violence against immigrants. The Deputy Attorney General of the United States is leading an effort to study the extent and nature, if any, of racial profiling by federal agencies. Criminal prosecutions have also been brought against several Border Patrol officers and Immigration and Naturalization Service officers for misconduct, including abuse of illegal immigrants. The Department of Justice has created an "Informal Mechanism" with the Embassy of Mexico to ensure that allegations of civil rights violations along the Mexican border are given their appropriate attention and adequately addressed by the Department of Justice. The Border Patrol has initiated several projects to reduce the dangers faced by immigrants crossing the Mexican border. These include the Border Safety Initiative, which is designed to educate migrants about the risks and dangers of crossing the border illegally and to assist those who do not heed the warnings and whose lives and well-being are endangered as a result. Also, Mexican President Vicente Fox and President Bush have pledged to work together to make crossing the United States-Mexico border safer for Mexican and other immigrants. In June 2001, both countries announced their most sweeping effort yet to prevent deaths of migrants. The United States and Mexico will undertake campaigns to warn migrants of risks, and the two countries will crackdown on smugglers who expose migrants to physical harm while crossing the border, and on bandits who prey on the intending migrants while they are still in Mexico. One of our country's most recent initiatives in this area merits special attention. The Trafficking Victims Protection Act, enacted in October 2000, provides a comprehensive set of tools to combat the trafficking in persons through prevention, prosecution and enforcement against traffickers and by providing assistance for victims. According to estimates, more than 50,000 persons are trafficked into the United States each year. These are typically women or young girls who are forced into domestic servitude or forced into the sex industry. Globally, estimates show that over 700,000 persons are trafficked each year. The Attorney General has made enforcement of anti-trafficking laws a priority. Since January, the Civil Rights Division of the Department of Justice has prosecuted several trafficking cases. We hope to do more, and are increasing the resources that we allocate to this effort. We likewise believe that victims of trafficking are just that - victims. The Attorney General just last month signed new regulations that require law enforcement officers to treat them as victims, providing them access to medical care and other services. In addition, alien victims of trafficking in persons are now offered new protections from deportation, and through two new visa classifications, the possibility of remaining in the United States. We will now answer those of Mr. de Gouttes's questions that I have not yet answered. Q: What measures do U.S. authorities intend to take to combat the use of the Internet for racist/abusive purposes? In other words, how far can the United States government go without bumping up against the First Amendment? Please give examples of any cases in which such actions have been taken. (also of Mr. Diaconu) A: Threatening Internet communications directed against individuals because of their race, religion, sex, or national origin may be subject to federal prosecution. The Criminal Section of the Civil Rights Division at the United States Department of Justice prosecutes hate-motivated threats of violence via the Internet under a variety of federal statutes including: (a) 18 U.S.C. § 875(c), which prohibits interstate transmission of a threat to injure; (b) 18 U.S.C. § 245, which prohibits, inter alia, intimidating or interfering with any person by threat of force because of his or her race, color, religion, or national origin and because that person in engaging in a protected activity; (c) 18 U.S.C. § 248, which prohibits, inter alia, intentionally intimidating or interfering with any person by threat of force because that person is or in order to intimidate any person from obtaining or providing reproductive health services; (d) 18 U.S.C. § 844(e), which prohibits willfully making a threat or conveying false information about an attempt - by mail, telephone or other instrument of commerce - to injure a person or destroy property by means of fire or an explosive; (e) 42 U.S.C. § 3631, which prohibits intimidating or interfering by threat of force because of his or her race, color, religion, sex, handicap, or national origin and because her or she is exercising a housing right; (f) 47 U.S.C. § 223, which prohibits using a telecommunications device without disclosing one's identity to threaten or harass the recipient of the communication, and prohibits repeatedly calling or e-mailing someone solely to harass that person. With the Committee's indulgence, I would like to mention two recent examples of prosecutions involving Internet threats. First, in United States v. Quon, the defendant pled guilty to interfering with a federally-protected activity after he allegedly sent a racially threatening e-mail through the Internet to forty-two Latino faculty members at California State University at Los Angeles, twenty five Latino students at the Massachusetts Institution of Technology, a college that receives federal funds, and Latino employees at NASA, Indiana University, Xerox, The Hispanic Journal, and the IRS. And in United States v. Machado, the defendant, a former student of the University of California at Irvine, was convicted of interfering with a federally-protected activity by disseminating to fifty-nine students, nearly all of whom were of Asian descent, an e-mail containing racially derogatory comments and threats. Speech that does not amount to a threat, a direct incitement to imminent violence, or a solicitation for illegal conduct is protected by the First Amendment to the United States Constitution and may not be subject to government regulation or punishment. Q: What measures are contemplated to ensure non-discriminatory access to justice in the United States? Is the U.S. doing everything possible to ensure the provision of fair trials for all of its citizens? A: The United States Constitution strictly forbids racial discrimination in the administration of justice. Existing federal law provides several procedural and substantive protections to assure that criminal and civil trials are not tainted by racial discrimination. Juries and grand juries are selected in a manner to avoid prejudice influencing the verdict. Carter v. Jury Comm'n of Greene Cty, 396 U.S. 320 (1970). Courts are required by the Sixth Amendment to the Constitution to ensure that the pool of potential jurors represents a fair cross-section of the relevant community, including racial minorities, Glasser v. United States, 315 U.S. 60 (1942), and the United States Supreme Court has held that a State's purposeful or deliberate denial of the opportunity to participate (on account of race) as jurors in the administration of justice violates the Equal Protection Clause of the United States Constitution, Swain v. Alabama, 380 U.S. 202 (1965). The United States Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny (e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), and Georgia v. McCollum, 505 U.S. 42 (1992)) that prosecutors, defense attorneys, and also counsel in civil proceedings are prohibited from using race in selecting jurors. Prosecutors and other litigants simply are not permitted to appeal to racial prejudice, or otherwise rely improperly on race in making arguments before the judge or jury. Inflammatory racial remarks could result in a mistrial. Any defendant can seek appellate review of a conviction or sentence on the ground that the evidence was insufficient to support his conviction. Moreover, if a criminal defendant believes that he or she was subjected to a trial in either state or federal court that was in violation of one of his constitutional rights, he may challenge his conviction or sentence afresh by filing a petition for a writ of habeas corpus in federal court. If a federal court determines that the defendant was indeed subjected to unconstitutional racial discrimination in the course of his trial, regardless of where or in what court the trial was held, the conviction or sentence may be vacated. The Supreme Court's decision in Gideon v. Wainwright, 372 U.S. 335 (1963) and its progeny established the right of criminal defendants to be represented by counsel at all critical stages of the criminal proceedings. A defendant may hire any attorney he or she desires. If a defendant cannot afford an attorney, the government will provide counsel without cost to the defendant. In addition, the U.S. Supreme Court also held in Ake v. Oklahoma, 470 U.S. 68 (1985), that the Constitution requires the government to provide payment for other professionals, such as psychiatrists or other experts, when necessary to prepare an adequate defense. To comply with this obligation, pursuant to the Criminal Justice Act, a system of Federal Public Defenders Offices has been established to provide quality representation to indigent defendants. The Constitution also requires, as determined in Griffin v. Illinois, 351 U.S. 12 (1956), and Douglas v. California, 372 U.S. 353 (1963), that state and federal courts in criminal cases provide trial transcripts free of charge and waive filing fees for criminal defendants who cannot afford such fees. The Constitution requires that all counsel meet a minimum threshold of competency to be considered constitutionally effective, and a defendant may challenge his conviction on the ground that his counsel did not meet that threshold. Any defendant can seek appellate review, and then seek a writ of habeas corpus, on the ground that the evidence was insufficient to support his conviction or that he was provided ineffective counsel. In civil cases, federal courts are authorized to appoint counsel for indigent plaintiffs. The federal government has also created the Legal Services Corporation to provide legal assistance to indigent individuals. The United States has appropriate more than $3.3 billion on these services in the last decade alone. Federally-funded legal services offices closed more than one million cases last year involving issues ranging from domestic violence, wrongful evictions, access to health care, child custody disputes, termination of benefits, and consumer fraud. Almost half of the clients served were African-, Hispanic-, Asian-, or Native Americans. In addition, many law firms across the United States, as well as the federal government, provide pro bono legal services wherein lawyers take on cases without charge to the clients they represent. In this way, many cases that benefit poor persons are well-litigated by highly competent counsel. In addition, advocacy groups across the country, many of which receive federal financial assistance, work to ensure that particular issues particularly affecting minority persons are litigated or brought to the attention of those who can litigate meritorious issues on behalf of people in mind. Q: Has the U.S. government decided to end the use of mandatory minimum sentencing? A: The United States has no current plans to discontinue the use of mandatory minimum sentencing. The sentencing structure in the United States is established by statute, based upon extensive study and consideration of the nature of particular crimes and the societal interest in a certain level of punishment for commission of certain crimes. Q: Why are the murders of blacks enforced less vigorously? Is there any data in this area? A: State and federal investigators and prosecutors in the United States are committed to the full investigation of any murder case, regardless of the race or ethnicity of the victim, as required under our laws and Constitution. Based upon these investigations, if there is sufficient evidence to identify and prosecute the individuals responsible for such crimes, there is a commitment to prosecute these people to the fullest extent of the law. A good example is the brutal murder of James Byrd, Jr., an African-American, by three white men, in Jasper, Texas, in June of 1998. In Texas state court, two of the men - John William King and Lawrence Russell Brewer - were convicted of the brutal crime and sentenced to death, while the third, Shawn Allen Berry, was sentenced to life in prison. This case is far from unique in demonstrating that, across our country, Americans insist on justice for all our people, regardless of race. We do not have a centralized system that collects data in this area, however. Q: Will the U.S. consider imposing a moratorium on the death penalty while it determines whether U.S. implementation of the death penalty is tainted by racial discrimination? A: The federal government has no plans to impose a moratorium on the death penalty. Study of federal cases over several years has not suggested any basis for imposing such a moratorium at this time. There are procedures in place, both in the state and the federal system, to monitor the imposition of the death penalty to ensure that it is not tainted by racial discrimination. The Governor of Illinois has imposed a moratorium on that state's use of the death penalty, pending a review of its procedures and the reliability of its capital verdicts. We will now answer the unanswered questions of Mr. Fall. Q: Please provide a breakdown of the racial and ethnic population of the U.S., including indigenous populations. A: According to the 2000 United States Census, just over 12 percent of the United States population are African-American, just under 12 percent are Hispanic and about 4 percent are Asian-American. The American Indian population, on and off tribal lands, enrolled and not, is 2.6 million. There are 4.1 million multi-race United States citizens who identified themselves as Native American, among other races. According to the Bureau of Indian Affairs at the United States Department of Interior, there are currently 1.6 million enrolled tribal members. A Native American tribe has power to grant, deny, revoke and qualify tribal enrollment. Q: What did the United States do in the cases of police brutality against Rodney King and Amadou Diallo? A: As I mentioned in our earlier answers to other questions, in 1993 the United States Department of Justice obtained criminal civil rights convictions of Sgt. Stacey Koon, the supervising police officer at the scene of the beating of Rodney King, and Officer Laurence Powell, the police officer who delivered numerous blows to Mr. King. Both defendants were sentenced to 30 months in federal prison, without the possibility of parole. The investigation into the death of Amadou Diallo was closed earlier this year by the United States Department of Justice because, after careful review of the available evidence, the Department concluded that the likely admissible evidence was not sufficient to establish beyond a reasonable doubt that the police officers acted with the requisite criminal purpose, as required by federal law, when they fired at Mr. Diallo. In other words, Department attorneys concluded that there was not sufficient evidence to refute, beyond a reasonable doubt (a very high standard of proof that applies to all criminal cases), the officers' likely testimony that they acted out of fear for their lives in the mistaken belief that Mr. Diallo was reaching for a gun, which, in fact, he was not. Indeed, certain of the officers were indicted in state court on manslaughter charges, but were acquitted by a jury of their peers. The police officers were mistaken in their belief that Mr. Diallo, who was unarmed, was reaching for a weapon, but the commission of such a mistake is insufficient to establish criminal purpose. There were no credible witnesses to disprove the police officers' accounts that they fired their weapons in fear for their lives, and the physical evidence was not inconsistent with the police officers' story. Q: Is the United States considering making a declaration under Article XIV of the Convention? A: The United States has no intention at this time of making a declaration under Article 14 of the Convention. We will now answer the unanswered question of Mr. Aboul-Nasr. Q: Please review and consider the recent report, entitled,
"1996-1997 Report on Hate Crimes Against Arab Americans,"
published by the American-Arab Anti-Discrimination Committee and provide
the response of the United States to that report. We want to emphasize that the prosecution of misconduct involving deprivation of rights based on race is one of the highest priorities of the Department of Justice. Federally-collected data indicate that the level of such crimes - not just crimes against Arab-Americans, but against all racial, religious and ethnic groups - in the United States has remained constant in recent years. The Department of Justice works closely with other law enforcement agencies to ensure that criminal civil rights violations are aggressively pursued where there is sufficient evidence to prove a violation has occurred under the law. The conviction rate of defendants charged with racial violence is in excess of 90 percent. In addition to investigations by the United States government, many states have laws and have undertaken special efforts to combat such crimes. The Attorney General has pledged to take all reasonable, appropriate, and sensible steps to combat crimes involving the deprivation of rights based on race, and, where appropriate, to assist state and local law enforcement agencies to combat them at the local level. We turn now to Mr. Diaconu's questions. Q: Please confirm that state and local laws do not undermine federal laws against discrimination. A: It is true that, in our federalism-based system of government, Congress often allows state and local governments to legislate first. However, the major federal antidiscrimination laws apply nationally. Moreover, state and local efforts to combat discrimination frequently strengthen, supplement, and sometimes expand upon federal efforts. Q: What is the U.S. position on the "last in time" rule, whereby acts of Congress overrule previously ratified treaties? A: Under U.S. law, treaties and acts of Congress stand on equal footing. Just as a treaty can be overriden by a subsequent Congressional enactment, a Congressional enactment can be overriden by treaty. Under our laws, however, our federal courts generally try to construe subsequent treaties or acts of Congress not to overrule prior laws. Mr. Pillai has asked a few questions relating to education, to which we will now turn. Q: Paragraph 412 discusses federal laws that apply to educational institutions in the area of bilingual education. Do these laws apply to educational institutions more broadly than just bilingual education? A: Yes. Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial assistance from engaging in discrimination on the basis of race, regardless of the actual program or activity receiving the funds. The Division I head works closely with the Office of Civil Rights at the Department of Education to work with recipients of federal funds to comply with our laws against discrimination. The Justice Department is also authorized to seek injunctive relief in federal court when necessary to ensure compliance, such as when cooperative and administrative efforts have failed. Q: What is the position of the United States with respect to the ability of American colleges and universities to engage in affirmative action efforts? (also of Ms. Britz, Mr. Shahi, and Mr. Bossuyt) A: The Bush Administration's position is the focus of ongoing consideration and deliberation. However, relatedly, the Department of Justice's brief is due to be submitted to the U.S. Supreme Court in the Adarand case at the conclusion of this week. The issues in Adarand concern whether our Congress stated a constitutionally adequate compelling governmental interest when it enacted the U.S. Department of Transportation's Disadvantaged Business Enterprise program, and whether the program, which uses certain race-conscious factors, is sufficiently narrowly tailored to advance that interest. At that time, the Administration's position on these issues will be elucidated in detail. We now turn to the questions asked by Ms. Britz which have not yet been addressed. Q: What is the status of disparate impact law in the United States today? (also of Mr. Yutzis) A: As we noted in our September 2000 report, the disparate impact prohibitions embodied in various federal civil rights provisions are consistent with Article 2(1)(c) of the Convention. For example, Title VII of the Civil Rights Act of 1964 prohibits covered employers, including state and local governments, from employment practices which impose an unjustifiable disparate impact on individuals of certain races. Similarly, regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964 similarly forbid practices resulting in disparate impact by recipients of federal funds. These regulations remain in place following the U.S. Supreme Court's recent decision in Alexander v. Sandoval, which held only that there is no private right of action to enforce those disparate impact regulations. These regulations are subject to enforcement by the Division of the Department of Justice that I now head. Q: What is the justification for the denial of voting rights to residents of the District of Columbia, who are predominantly African-American? A: Congress established the District of Columbia in 1801 to assure that the seat of the federal government is subject to exclusive federal control, pursuant to the express terms of the Constitution. At that time the population of D.C. was approximately 8,000 in number and predominantly White. That same Constitution provided that representation in the national legislature and executive branch be apportioned through the states, not including D.C. The 23rd Amendment of the Constitution, ratified in 1961, authorizes the District to participate in the election of the President of the United States. And since 1970, the District has been represented in the House of Representatives by a delegate who may serve on standing, special and conference committees with the same powers and privileges of representatives from the states. Residents of the District of Columbia also elect a mayor, and members of the District's city council. Several of Mr. Tang's questions have already been addressed. We address a remaining question that has not yet been addressed. Q: What is the United States position with regard to immigrants from Communist countries? A: Our federal laws against discrimination generally prohibit discrimination on the basis of national origin. Those laws apply regardless of whether the nation of origin is Communist or non-Communist. It should further be stated that, over the last several decades, the United States has warmly accepted many immigrants from Communist and former Communist countries. Mr. Yutzis has asked a few questions to which we now respond. Q: It would be interesting to know what percentage of GDP is allocated to combat racial discrimination, though obviously it cannot be provided in such a short time period. A: Such data would indeed be difficult to obtain, but we can say that over ten thousand federal, state and local employees actively enforce civil rights laws in the United States; indeed, the staffing of the Civil Rights Division which I head has increased dramatically over the past few decades. Moreover, the vast majority of major corporations have established equal employment opportunity offices to ensure that their employees do not engage in unlawful discrimination. Mr. Thornberry and Mr. Bossuyt each asked a series of important questions that, as he indicated, Mr. Fall had also asked. We hope and believe that our answers given thus far are responsive to his concerns. Mr. Shahi has asked a question, in addition to a number of other questions asked by previous members of this Committee, which we would like to respond to next. Q: A number of federal laws prohibit state and local government programs that receive federal funds. But what about those programs that do not receive federal funds? A: First, state governments are required under the Equal Protection Clause of the Constitution not to discriminate on the basis of race in all of its functions. Most state constitutions also contain such provisions. In addition, these federal prohibitions against discrimination apply not only to the specific use of federal funds, but to the entire entity receiving federal funds. * * * We thank you, Mr. Chairman and distinguished members of the Committee, for the opportunity to appear before you, hear your concerns, and answer your questions. We look forward to having a continuing dialogue with you, one which the United States hopes and believes will help advance the elimination of racism in America and throughout the world. |
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