RACE & ETHNICITY IN AMERICA TURNING A BLIND EYE TO INJUSTICE Cover Photos Top: Farm workers labor in difficult conditions. -Photo courtesy of the Farmworker Association of Florida (www.floridafarmworkers.org) Middle: A march to the state capitol by Mississippi students calling for juvenile justice reform. -Photo courtesy of ACLU of Mississippi Bottom: Officers guard prisoners on a freeway overpass in the days after Hurricane Katrina. -Photo courtesy of Reuters/Jason Reed Race & Ethnicity in America: Turning a Blind Eye to Injustice Published December 2007 OFFICERS AND DIRECTORS Nadine Strossen, President Anthony D. Romero, Executive Director Richard Zacks, Treasurer ACLU NATIONAL OFFICE 125 Broad Street, 18th Fl. New York, NY 10004-2400 (212) 549-2500 www.aclu.org TABLE OF CONTENTS INTRODUCTION 13 EXECUTIVE SUMMARY 15 RECOMMENDATIONS TO THE UNITED STATES 25 THE FAILURE OF THE UNITED STATES TO COMPLY WITH THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION 31 ARTICLE 1 DEFINITION OF RACIAL DISCRIMINATION 31 U.S. REDEFINES CERD’S “DISPARATE IMPACT” STANDARD 31 U.S. LAW PROVIDES LIMITED USE OF DOMESTIC DISPARATE IMPACT STANDARD 31 RESERVATIONS, DECLARATIONS & UNDERSTANDINGS 32 ARTICLE 2 ELIMINATE DISCRIMINATION & PROMOTE RACIAL UNDERSTANDING 33 ELIMINATE ALL FORMS OF RACIAL DISCRIMINATION & PROMOTE UNDERSTANDING (ARTICLE 2(1)) 33 U.S. MUST ENSURE PUBLIC AUTHORITIES AND INSTITUTIONS DO NOT DISCRIMINATE 33 U.S. MUST TAKE MEASURES NOT TO SPONSOR, DEFEND, OR SUPPORT RACIAL DISCRIMINATION 34 Enforcement of Employment Rights 34 Enforcement of Housing and Lending Rights 36 Hurricane Katrina 38 Enforcement of Education Rights 39 Enforcement of Anti-Discrimination Laws in U.S. Territories 40 Enforcement of Anti-Discrimination Laws by the States 41 U.S. MUST TAKE MEASURES TO REVIEW POLICIES AND TO WITHDRAW LAWS OR REGULATIONS THAT CREATE OR PERPETUATE RACIAL DISCRIMINATION 41 U.S. MUST TAKE MEASURES, INCLUDING BY LEGISLATION, TO PROHIBIT RACIAL DISCRIMINATION BY ALL PERSONS, GROUPS, OR ORGANIZATIONS 42 Racial Profiling 43 RACE & ETHNICITY IN AMERICA: Turning A Blind Eye To Injustice 3 TAKE AFFIRMATIVE ACTION TO ENSURE DEVELOPMENT AND PROTECTION OF MINORITY GROUPS IN SOCIAL, ECONOMIC, CULTURAL, AND OTHER FIELDS (ARTICLE 2(2)) 44 FEDERAL GOVERNMENT DIMINISHES INVOLVEMENT IN TRADITIONAL CIVIL RIGHTS WORK 46 FEDERAL GOVERNMENT CREATES BARRIERS TO AFFIRMATIVE ACTION 46 ARTICLE 3 CONDEMN AND ERADICATE ALL RACIAL SEGREGATION 48 ARTICLE 5 EQUAL TREATMENT BEFORE THE LAW 49 ENSURE EQUAL TREATMENT BY COURTS, POLICE & PRISON AUTHORITIES 50 RIGHTS OF THE CRIMINALLY ACCUSED TO COUNSEL 50 Failing Indigent Defense System in Michigan 51 Failing Indigent Defense System in Washington State 51 Failing Indigent Defense System in Louisiana 52 Failing Indigent Defense System in Texas 53 Failing Indigent Defense System in Mississippi 54 A Mended Indigent Defense System in Montana 54 Juvenile Waiver of Counsel in Ohio 55 No Counsel for Asylum Seekers 56 Inadequate Tribunals For Suspected “Enemy Combatants” 57 RACIAL & ETHNIC PROFILING 58 State-Level Policy Changes Fail to Eliminate Profiling 60 Consent Decrees Eradicating Profiling Are Difficult to Enforce 60 Landmark Settlement Banning Consent Searches in California 61 Heightened Profiling in the Wake of Hurricane Katrina 61 Studies Validate Minorities’ Perception of Profiling in Oregon 62 Sharp Rise in Profiling in New York 63 Government Profiling to Enforce Immigration Laws on the Texas-Mexico Border 63 Racial Profiling & the War on Drugs 64 Mass Arrests of African-Americans and South Asians in Texas and Georgia 64 Limitations on Judicial Sentencing Discretion 66 4 RACE & ETHNICITY IN AMERICA: Turning A Blind Eye To Injustice New York’s Punitive Rockefeller Drug Laws 67 Disparate Penalties for Crack and Powder Cocaine Offenses 68 Profiling & the War on Terrorism 69 Profiling Air Travelers 69 Profiling Travelers at the Border 70 Official Policies Create Climate for Ethnic & Religious Profiling 71 Profiling Immigrant Workers 72 Federal Officials Raid Worksites 72 States and Localities Pass Anti-Immigrant Ordinances 73 Significant Legal Victory: Court Blocks Pennsylvania Ordinance 75 New York Ordinance Penalizes Employers 75 Georgia Ordinances Penalize Landlords and Mandate Speaking English 76 Implementation of the Criminal Alien Assistance Program in Texas 77 Federal Legislation to Eliminate Profiling 77 MINORITY OVER-REPRESENTATION IN THE CRIMINAL JUSTICE SYSTEM 78 Disparate Rates of Minority Confinement in Oregon 79 Disparate Rates of Minority Confinement in Texas 80 Disparate Rates of Minority Confinement in Mississippi 82 Disparate Rates of Incarceration of Minority Women 83 Selective Enforcement of the Law Against Native Americans 83 Juvenile Life Without Parole 85 “Three Strikes” Laws 86 CONDITIONS OF CONFINEMENT IN PRISONS & JAILS 87 Juvenile Detention Facilities: Warehouses of Problem Children 87 Girls in New York Juvenile Prisons 88 Disproportionate Minority Confinement in Massachusetts 90 Settlement in Illinois Concerning Conditions at Juvenile Detention Center 92 Missouri’s Model Juvenile Justice System 93 Adult Facilities: Inadequate Medical and Mental Health Care & Deaths in Custody 93 Hurricane Katrina Shines Spotlight on Array of Problems in Louisiana Prisons 94 Inadequate Care & Racially Disparate Commitment to New York Psychiatric Facilities 97 RACE & ETHNICITY IN AMERICA: Turning A Blind Eye To Injustice 5 Immigration Detention 99 Ill-treatment of Children in Immigration Detention 100 Inhumane Conditions Lead to Deaths in Custody 102 Indefinite Detention 102 CAPITAL PUNISHMENT 103 Race Bias in the Application of the Death Penalty 106 DISCRIMINATION IN THE RIGHT TO SECURITY AGAINST PUBLIC & PRIVATE VIOLENCE 108 ROUND-UP AND ARBITRARY DETENTION OF MUSLIM IMMIGRANTS 108 Special Registration Program 109 ABUSE OF NON-CITIZENS DURING DETENTION 110 FEDERAL BUREAU OF INVESTIGATION INTERROGATES MUSLIMS 110 NATURALIZATION DELAYS 111 ABUSE OF MATERIAL WITNESS LEGISLATION 112 VIOLENCE AGAINST MIGRANTS 112 VIOLENCE AGAINST MINORITY WOMEN 114 Exploitation of Women Workers by Diplomats 115 Sexual Violence Against Indigenous Women 117 POLICE BRUTALITY 119 Excessive Force in the Wake of Hurricane Katrina 120 Police Brutality in New York City 123 Police Crimes Against Puerto Rico’s Vulnerable Populations 124 Federal Consent Decree Fails to Deter Police Abuse in Michigan & New Mexico 125 Overuse of Tasers in Florida 125 DISCRIMINATION IN THE APPLICATION OF POLITICAL RIGHTS 126 U.S. FAILS TO ENFORCE FEDERAL AMELIORATIVE STATUTES 127 VOTING RIGHTS DISCRIMINATION AGAINST SOUTH DAKOTA’S NATIVE AMERICANS 127 FELONY AND MISDEMEANOR DISFRANCHISEMENT BARS MILLIONS FROM VOTING 129 Florida’s Trumpeted But Inadequate Reform 129 Washington and Arizona’s Unfair Monetary Requirements Hinder Voting Rights 130 Mississippi’s Unconstitutional Expansion of Disfranchisement Policy 130 6 RACE & ETHNICITY IN AMERICA: Turning A Blind Eye To Injustice DISCRIMINATION IN THE PROVISION OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS 131 THE RIGHT TO HEALTH: INFERIOR SYSTEM AND MEDICAL TREATMENT FOR MINORITIES & WOMEN 131 THE RIGHT TO WORK: DIMINISHED FEDERAL PROTECTION OF WORKER RIGHTS 132 Government Failure to Enforce Anti-Discrimination Protections for Workers 133 Government Discriminates Against Undocumented Workers & Fails to Protect Them From Employer Discrimination 134 THE RIGHT TO EDUCATION 137 The Federal No Child Left Behind Act 137 Failure to Meaningfully Address Drop-Out Crisis 139 Failure to Ensure Adequate Support for Minority Students Attending At-Risk Schools 141 Racial Re-Segregation of Public Schools 142 White Parents Challenge Integrated School District in Massachusetts 145 Challenges to California School Districts’ Use of Race and Diversity 145 School Districts Drawn to Limit Minority Attendance in Mississippi 145 Rezoning of School District Detrimental to Minority Children in Alabama 146 School-to-Prison Pipeline 146 Inappropriate School Discipline Pushes At-Risk Students Out of Schools 147 Criminalization of School Discipline 149 Involuntary Transfers to “Alternative Schools” 153 Racial Discrimination in Schools 156 ARTICLE 6 ENSURE EFFECTIVE PROTECTION & REMEDIES FOR RACE DISCRIMINATION 159 KEY GUARDIAN OF CIVIL RIGHTS FAILS TO ENFORCE PROHIBITIONS AGAINST DISCRIMINATION 160 PRIVATE ENFORCEMENT OF CIVIL RIGHTS CLAIMS ALSO SCALED BACK 162 ROLLBACK OF CIVIL RIGHTS REMEDIES FOR MINORITY WOMEN 163 INSUFFICIENT REMEDIES FOR DISCRIMINATION 163 RACE & ETHNICITY IN AMERICA: Turning A Blind Eye To Injustice 7 ARTICLE 7 MEASURES IN TEACHING, EDUCATION & CULTURE TO COMBAT DISCRIMINATION & PROMOTE TOLERANCE 164 RACIAL PROFILING OF MINORITIES CONTINUES UNABATED 165 RELIGIOUS AND ETHNIC DISCRIMINATION CONTINUES TO RISE 165 HUMAN RIGHTS INFORMATION IS NOT READILY AVAILABLE 166 APPENDIX 168 END NOTES 169 8 RACE & ETHNICITY IN AMERICA: Turning A Blind Eye To Injustice ACKNOWLEDGMENTS Laleh Ispahani, Senior Policy Counsel of the ACLU’s Racial Justice Program (RJP), is the prin- cipal author of this report. Jamil Dakwar and Chandra Bhatnagar of the ACLU Human Rights Program (HRP) reviewed drafts of the report and provided significant input and editorial com- ments. Lenora Lapidus and Mie Lewis of the ACLU Women’s Rights Project (WRP) also pro- vided substantial material, as did members of the National Prison Project, National Security Program, Immigrants’ Rights Project, and Voting Rights Project. Frank Knaack of the HRP, and Catherine Kim, Reginald Shuford and Aron Cobbs of the RJP provided substantial