NLG IC AND JAILHOUSE LAWYERS SPEAK SUBMISSION TO UN SPECIAL RAPPORTEUR
Submission to the UN Special Rapporteur on Minority Issues in Response to the Call for Inputs
Respectfully Submitted by: Kerry McLean, Esq. & Audrey Bomse, on behalf of the NLG IC and JLS
This submission is presented by the National Lawyers Guild International Committee (NLG IC). The NLG IC supports legal work around the world “to the end that human rights and the rights of ecosystems shall be regarded as more sacred than property interests.” The NLG provides assistance and solidarity to movements in the United States and abroad that work for social justice. With members throughout the US and abroad, the NLG IC plays an active role in international advocacy and ongoing projects in the pursuit of human rights and social justice.
This submission is jointly presented by Jailhouse Lawyers Speak (JLS) International Law Project, a joint project of the JLS and the NLG. JLS is a national collective of imprisoned persons fighting for human rights. It organizes across the US inside and outside of the prisons. It was the organizing force behind the 2018 National Prison Strike.
This submission responds to item 4 in the Call for Inputs: Access to Justice and administration of Criminal Justice. Part I of our submission concerns police violence against people of African descent. Part II of our submission contends that slavery exists in the US today in the jails and prisons and that people of African descent are particularly impacted.
Part I: Police Violence Against People of African Descent
Law enforcement in the United States routinely subjects people of African descent to policing to control their movement and actions, and metes out harsh punishment for any perceived infraction. Law enforcement targeting of people of African descent for control and violence is not something new in the United States. It began centuries ago with the creation of “slave patrols,”1 where whites were tasked with catching enslaved people who had escaped to freedom. Slave patrols also kept watchful eyes on enslaved people that they believed might be planning an escape, and the slave patrols exerted violence over enslaved people deemed defiant.
In modern times there are various scenarios where people of African descent are targeted by law enforcement. For this short submission we will highlight a few.
One common encounter is the pretextual traffic stop, where a Black driver’s car is pulled over by the police for a minor reason or no reason at all, and the driver is questioned and often searched. Many of those encounters end with the Black driver being shot by the police officer
1 https://www.usatoday.com/story/news/nation/2020/06/07/black-lives-matters-police-departments-have-long history-racism/3128167001/
without cause. In the case of Black female drivers, they are often subjected to degrading and invasive strip searches by the police, sometimes in the view of people passing by.2
Another scenario occurs when a Black person is experiencing a mental health crisis, and someone calls the emergency number to get help for the person in crisis. The police do not properly respond to incidents involving people who are having a mental health crisis. When the person having the mental health crisis is Black factors such as racial stereotyping, racial profiling and even racial animus influence the outcome of the encounter.
According to a study by the Treatment Advocacy Center, people with “untreated severe mental illness are involved in at least 1 in 4 and as many as half of all fatal police shootings.”3 There are many cases of Black people suffering a mental health crisis who were killed by police. One database that tracks police violence reports that 216 Black people with mental illnesses have been killed by police since 2015.4
As discussed above, Black women and Black people with mental illnesses are targeted for policing and subjected to forms of police violence. The same is true for Black children. Schools discipline Black students far more than white students. Black students were arrested at three times the rate of white students.5In some states, Black students were eight times more likely to be arrested than white students.6
Black girls were arrested at four times the rate of white girls.7In some states Black girls were more than eight times as likely to be arrested than white girls.8
The disparity in treatment of students based on race begins as early as pre-school. According to a 2014 report by the US Department of Education, Black children account for 18% of preschool enrollment, yet at least 42% of the preschool children receiving suspensions from school are Black.9 By contrast, white students make up 43% of preschool enrollment but only 28% of white preschool children received suspensions from school.10
Black girls as young as 5 years old have been arrested for temper tantrums.11
We share as evidence the final report of the International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States. The Commission
2 https://www.theguardian.com/us-news/2016/aug/11/baltimore-police-gender-bias-women-justice-department 3 https://www.treatmentadvocacycenter.org/key-issues/criminalization-of-mental-illness/2976-people-with untreated-mental-illness-16-times-more-likely-to-be-killed-by-law-enforcement
6Id.
7Id.
8Id.
9 https://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf
10 Id.
11 https://www.cbsnews.com/news/handcuffed-5-year-old-sparks-suit/
of Inquiry’s report is the result of extensive research and evidence collected during live hearings conducted by respected, independent jurists from around the world.12 The report makes a thorough examination of police violence against people of African descent.
Part II: The Existence of Slavery in US Jails & Prisons & the Disproportionate Impact on Black People
The NLG respectfully submits that the United States continues to practice slavery, though now it is practiced in its jail cells and prisons. The U.S. criminal justice system is rooted in slavery and Jim Crow, which directly inform the practices and policies of U.S. jails and prisons today. The 13th Amendment to the United States Constitution establishes that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 13 Ever since the Amendment’s ratification over 150 years ago, the United States has relied on this slavery exception clause to profit from prison labor as a form of legalized slavery. While it is in clear violation of international law, the 13th Amendment remains the law of the land in the United States.
In 2021, the United States still practices slavery inside its jails14 and prisons. Incarcerated people are forced to pick cotton on American prison farms and face disciplinary action if they do not produce high enough yields or harvest quickly enough.15 During a global pandemic, prison laborers have been tasked with producing PPE, serving food, sanitizing cells of the sick, and even burying those who have succumbed to the COVID-19 virus, while they themselves are unable to access basic protective gear, masks, or even supplies like hand sanitizer, and can face consequences if they refuse.16 David Fathi, Director of the ACLU’s National Prison Project maintains, that “[t]he inherently coercive nature of the prison environment means that there is very little that is truly voluntary in prison.”17
The federal government rakes in an estimated $500 million annually, and the states over $1 billion from their highly lucrative prison industries.18 Activists and advocates have successfully campaigned to strike slavery-exception clauses from state constitutions in states like Colorado, and there are strong movements to do the same in New Jersey and New Mexico. A bipartisan joint resolution known as the “Abolition Amendment” has been introduced in the U.S. Congress with the same goal. One of the co-sponsors of the congressional resolution, democratic Senator William Lacy Clay, stated: “Our Abolition Amendment seeks to finish the job that President Lincoln started by ending the punishment clause in the 13th Amendment to eliminate the
12 https://inquirycommission.org/report/
13 1 U.S. Const., Amend. XIII, Sec. 1, emphasis added.
14 Most of the people in U.S. jails have not yet been tried or convicted of a crime.
15 Michelle Alexander, The New Jim Crow.
16 https://theappeal.org/prison-labor-is-on-the-frontlines-of-the-covid-19-pandemic/
17 Id.
18 https://www.economist.com/united-states/2017/03/16/prison-labour-is-a-billion-dollar-industry-with uncertainreturns-for-inmates.
dehumanizing and discriminatory forced labor of prisoners for profit that has been used to drive the over-incarceration of African Americans since the end of the Civil War. No American should ever be subject to involuntary servitude, even if they are incarcerated.”19
Courts and politicians have openly acknowledged the fact that prison labor parallels chattel slavery. Prison laborers are largely excluded from human rights and labor protections afforded to other workers, and there is little existing recourse domestically or internationally currently available to them.
Black people are disproportionately impacted. Black men account for approximately 13% of the population in the US, yet represent 35% of those incarcerated.20 One in three Black men in the US will be incarcerated during his lifetime, compared to one in six Latino men and one in 17 white men.21
One in 18 Black women in the US will be incarcerated during her lifetime, compared to one in 111 white women.22
The reasons for the racial disparities in incarceration are well documented. They are a result of systemic racism, flaws in the criminal legal system, and harsh treatment of Black people accused of crimes. Thus, there exists a situation where Black people in the United States are disproportionately imprisoned and subjected to involuntary servitude.
Conclusion
We appreciate the opportunity to share information with you concerning racist policing and racist police violence against a minority population, and about forced prison labor disproportionately affecting a minority population. We hope that the information presented will be useful when meeting with representatives of the United States government and making recommendations.
19 https://www.merkley.senate.gov/news/press-releases/merkley-clay-propose-constitutional-amendment-to closeslavery-loophole-in-13th-amendment-2020.
22 Id.