A coordinated U.S. NGO response to the U.S. Second and Third Periodic Reports and
to CCPR/C/USA/Q/3
Introduction
1.

Upon review of the Committee’s List of Issues to be taken up in connection with the
consideration of the Second and Third periodic reports of the United States of
America, adopted on March 30, 2006, this update was drafted to address the
Committee’s priority concerns. This document also addresses a number of related
matters within the Committee’s jurisdiction. It represents a collaborative effort on the
part of a cross-section of U.S. NGOs, many of which presented information for the
Committee’s consideration during its March 2006 session in New York.

2.

The institutions and individuals involved in this effort welcome the opportunity to
provide the Committee with information to be used in its review of U.S. compliance
with the ICCPR.

3.

This document is an overview of the shadow reports prepared as part of this U.S.
NGO collaboration. It supplements the full shadow reports prepared for the
Committee’s review, copies of which have been filed with the Secretariat.

4.

Copies of the executive summaries of the above-referenced shadow reports are
attached to this document.

Right to self-determination and rights persons belonging to minorities (Articles 1 and 27)1
5.

Due to continuing interference with the self-governance and property rights of Native
Americans, the U.S. government is in violation of Article 1 of the ICCPR. The
government has engaged in long-term mismanagement of Individual Indian Money
(IIM) accounts resulting in major losses from the Indian Trust. Cobell v. Norton, 428
F.3d 1070 (U.S. App. D.C. 2005). The Government continues to attack access and
ownership of traditional lands using methods ranging from “gradual encroachment”
to harassment via fines and property confiscation. These actions constitute breaches
of Indian treaties, violations of indigenous rights to property and culture and
violations of Article 1(2) of the Covenant.

6.

The Federal Government has also failed to recognize specific Native American tribes
as self-governing peoples. The established process for federal recognition was
established by the United States in 1934 under what is referred to as the “Indian
Reorganization Act”. This process, imposed upon Native communities, oftentimes
directly conflicts with long-standing traditional forms of self-government. It has also
created significant obstacles to federal recognition that are not easily overcome. For

1

ICCPR Article 1, Self-Determination and Native Americans Shadow Report, T. Yvette Soutiere with contributions
by Julie Fishel, Western Shoshone Defense Project, and Lucy Simpson, Indian Law Resource Center. see also
Statement of Judge Claudia Morcom for the Meiklejohn Civil Liberties Institute and the International Association of
Democratic Lawyers.

1

example, certain federally required criteria cannot be met because of actions taken by
the Government and majority factions of the population throughout this country’s
history. Refusal to recognize Native American peoples or Nations which do not fit
certain criteria because of historical actions represents a violation of Article 1(3) of
the Covenant.
7.

Moreover, issues regarding self-determination for Native Americas are also implicated in
the case of Leonard Peltier, who was convicted in 1977 for killing two FBI agents (which
Peltier consistently denies). Numerous NGOs and the American Indian Movement that
support the release of Peltier note that even though two FBI officers were killed, the
killings occurred in a “war-like atmosphere” in which FBI agents had been terrorizing
residents of the Pine Ridge Indian reservation in the wake of the Pine Ridge protest in the
early 1970s. In April 2006, the U.S. 8th Circuit Court of Appeals determined that the
U.S. District Court where Leonard Peltier was tried had subject matter jurisdiction even
though the killings occurred on Native American land and even though Peltier was
convicted under statutes that required the crime to take place in special maritime and
territorial jurisdiction of the United States, jurisdictions that do not include Native
American land.

Constitutional and legal framework within which the Covenant is implemented [(Article 2)
including issues related to effective remedies]2
8.

The constitutional and legal framework in which the ICCPR is implemented is
marked by the doctrines of federalism/states rights and separation of powers, as well
as the prerogatives of sovereignty that appear to inform the exceptionalism on which
the U.S. reservations, understandings, and declarations (RUDs), as well as its proviso,
to the Covenant are based. The U.S. constitution is an obstacle neither to recognizing
the full range of rights under the Covenant nor to assuming the Covenant’s
governmental obligations. Rather, these long-standing legal doctrines, and the
constitutional amendments on which they are based, are used to avoid imposing on
individual states a federal obligation to comply with the ICCPR. In addition, the vast
majority of the rights, privileges and immunities of citizenship are, as a matter of
tradition, within the purview of the states. This limits the reach of Congress’ broad
remedial power under §5 of the Fourteenth Amendment, the primary vehicle by
which Congress has held states to account for violating individual rights such due
process and equal protection of the laws. Moreover, the plenary power of Congress
2

Professor Penny Venetis, et al., In Response to the Second and Third Periodic Reports of the United
States of America: Shadow Report on U.S. Exceptionalism and Lack of Implementation. National Campaign to
Restore Civil Rights, The Lack of Access to the Courts to Enforce Civil Rights in the United States: A Violation of
the Right to Effective Remedy Under Article 2(3) of the ICCPR; Report on Women’s Rights under the International
Covenant on Civil and Political Rights; Women’s Institute for Leadership Development for Human Rights, et al.,
Conditions and Conduct in the California Criminal Justice System: A Report on U.S. Government Compliance with
the United Nations International Covenant on Civil and Political Rights; Global Rights and the University of North
Carolina Law School Human Rights Policy Clinic, Domestic Workers’ Rights in the United States: A report
prepared for the U.N. Human Rights Committee in response to the Second and Third Periodic Report of the United
States; National Association of Criminal Defense Lawyers, et al., Report on the Death Penalty. See also Submission
of the Lawyers’ Committee for Civil Rights under Law.

2

to regulate interstate and foreign commerce has been limited where the judiciary has
disagreed with Congress’ legislative judgment regarding the national impact of
matters such as gender-based violence. Rather than grant Congress the high level of
deference its commerce-related decisions historically garnered, the Supreme Court
has chosen to substitute its judgment to conclude that the factual record on which
some laws were based was insufficient. The effect of this federal/state relationship is
seen in areas such as criminal and family law, where legal standards and rights vary
widely from state to state. It also means that federal jurisdiction is triggered only
when federal rights are implicated, and in this case, that federal right is limited to a
right to be free from intentional discrimination at the hands of public actors.
9.

The recently re-introduced amendment to the Constitution of the United States to ban
same-sex marriage is an example of the arbitrariness with which the federal
government demonstrates is willingness to override state determinations regarding
matters traditionally regulated by individual states. Rather than protect human rights,
this proposed constitutional amendment evinces a federal government engaged in
creating acrimony and facilitating discrimination in violation of the Covenant.

10.

The United States has been intrinsically involved in the development of the United
Nations from its first incarnation as the League of Nations, to the aftermath of World
War II and the development of peaceful diplomacy. The U.S. has also played the role
of watchdog for the implementation of human rights around the world. The U.S.,
however, has faltered in meeting its own international human rights obligations,
including those of the Covenant

11.

Nearly 15 years after the signing of the ICCPR, the United States has failed to
acknowledge the full extent of the treaty’s legal significance and has not taken the
active steps necessary to ensure that treaty obligations are enforced as U.S. law.

12.

When the U.S. signed the treaty, it simultaneously issued broad RUDs limiting the
scope of its obligations and rendering the treaty unenforceable. In essence, the
RUDs strip the ICCPR of all its authority and relevance to the U.S. As such, the
U.S.’s RUDs have been criticized both by this Committee and fellow signatory
parties to the ICCPR.

13.

This Committee criticized the U.S.’s widely formulated reservations. It noted that the
U.S.’s RUDs were “intended to ensure that the United States has only accepted what
is already law in the United States.” Additionally, 11 fellow signatories and this
Committee found the U.S. reservations to Article 6(5) regarding the juvenile death
penalty and Article 7 regarding the use of torture and cruel, inhuman and degrading
treatment, as inconsistent with the Covenant’s object and purpose, and in direct
conflict with the non-derogable provision of the right to life under Article 4(2).

14.

The U.S. ratified the ICCPR in a way that precludes the treaty from having any real
effect domestically. Under the “federalism understanding,” the U.S. government

3

pledges that it will implement the ICCPR to the extent that it has legislative and
judicial jurisdiction, and allow state and local governments to implement the treaty
where they have respective jurisdiction. However, the federal government has yet to
name the types of matters where state and local governments have unique jurisdiction
and therefore specific obligations under the ICCPR treaty. Nor has the federal
government taken steps to pass implementing legislation to ensure that all branches of
government understand their human rights obligations. Finally, should states and
local governments fail to uphold their obligations under the ICCPR, the federal
government has not clarified its authority to ensure the treaty is upheld and enforced.
15.

The U.S. continues to stand by its RUDs, even in situations when the U.S. Supreme
Court has rendered them unnecessary, as in the case of banning the execution of
juveniles. Roper v. Simmons, 543 U.S. 551 (U.S. 2005).

16.

The U.S. also continues to assert that the treaty is non-self executing and that it
cannot be invoked in U.S. Courts to remedy a violation of the human rights
guaranteed by the ICCPR. This failure to implement the ICCPR and the continued
clinging to RUDs violates the ICCPR on its face. Additionally, the U.S.’s failure to
implement the treaty and the U.S.’s failure to ratify Optional Protocol I leaves those
whose human rights have been violated with no remedy.

17.

As a matter of domestic law, millions of individuals in the United States do not have
the right to remedy violations of federal civil rights laws as a result of Supreme Court
opinions that restrict the private right of action of individuals. The inability to redress
these civil rights violations is contrary to Article 2(3).

18.

U.S. Supreme Court decisions have prevented individuals from obtaining an
injunctions to stop ongoing discriminatory conduct violate Article 2(3) because
remedies must be accessible to individuals whose rights are protected.

19.

U.S. Supreme Court decisions that have restricted the ability of individuals to obtain
compensatory damages against state actors violate Article 2(3) and the failure to
compensate an individual for harms caused by civil rights violations means that the
remedy is insufficient and thus inappropriate.

20.

Under the ICCPR, state sovereign immunity cannot be a defense against the
imposition of corrective measures aimed to effectuate the requirements of Article
2(3). This, however, is at odds with the position taken by the U.S. government.

21.

The implementation of the effective remedy requirements of Article 2(3) is
particularly crucial when the individuals involved are vulnerable persons. Among
those groups rendered especially vulnerable are immigrants and those seeking
asylum.

22.

The United States generally recognizes asylum claims based on past persecution or
likely future persecution as a result of an individual’s sexual orientation or gender

4

identity. Nonetheless, U.S. immigration advocates note the difficulty of proving such
claims, and the insensitivity of some immigration officials to sexuality-based cases.
Asylum applicants must also generally seek protection within one year of arriving in
the United States. This short timeline for filing asylum claims can be particularly
difficult for LGBTI asylum applicants who may find it difficult to reconcile the
extreme persecution they faced in their home communities with the possibility of a
more “open” sexual orientation or identity in the United States.
23.

Employers of domestic workers who are protected by diplomatic immunity are not
subject to the civil, criminal or administrative jurisdiction of the United States, a
protection that denies domestic workers the ability to obtain a remedy against them.
U.S. courts have aggravated this problem by interpreting the commercial activity
exception contained in Article 31(c) of the Vienna Convention on Diplomatic
Relations to exclude domestic workers.

24.

The connection between domestic workers’ immigration status and her employment
is exploited by employers to discourage the reporting of violations. The United States
exacerbates this vulnerability by: (1) allowing inquiry into the domestic workers
immigration status should she report a violation; and (2) failing to provide a vehicle
through which domestic workers fired after reporting abuses can obtain another visa
and stay in the United States to pursue a remedy.

25.

U.S. asylum law and practice does not adequately consider or recognize the
protection needs of women fleeing gender-specific persecution. By failing to
specifically accommodate for gender as a contributing persecution ground, the U.S.
stands in violation of its obligations under the ICCPR Articles 2(1), 7, 13, and 26, and
Refugee Convention Articles 3, 31, and 33 at a minimum. Moreover, the US has
increasing limited previously available protections under its asylum law. Where
gender-based violence resulting from conflict or personal situations is the cause of
women’s flight from persecution, the diminishing protections and harshness of the
U.S. restrictions on asylum fall disproportionately on women.

26.

The Bush Administration enacts or narrowly interprets laws in the name of fighting
terrorism that has the effect of disproportionately denying asylum to female victims
of sexual violence, the very victims of terrorists. U.S. imposition of a “material
support” bar to asylum or refugee status adversely impacts women because of their
status as women. “Material support” provided under threat of violence, physical harm
and, inter alia, coercion denies them asylum protection. In conflicts, women become
non-combatant victims. They are raped by invading forces for purposes of
humiliating their men and their nation, for “ethnic cleansing,” or for “recreation.”
They are compelled by captors to perform chores by day, suffering sexual indignities
by night. Although they work under duress, women are denied asylum because the
U.S. will not recognize the gender-specific vulnerability of rape or threat of rape as a
duress defense.

5

27.

The U.S. expedited removal procedure does not provide sufficient due process to
enable aliens with valid asylum claims to effectively pursue their right against
expulsion.

28.

Immigration inspectors fail to consistently do the following: (1) refer asylum seekers
for a credible fear review; and (2) inform asylum seekers of their right to credible fear
review.

29.

Asylum seekers are denied the right to challenge parole decisions. Procedural
changes at the Board of Immigration Appeals (“BIA streamlining”) has undermined
asylum seekers’ due process rights and may be leading to denials of meritorious
asylum claims. Limitations on judicial review deny many aliens the ability to
challenge the legality of detention and removal orders. Whole categories of aliens
(for example, asylum seekers who apply after one year in the U.S.) are denied any
access to federal court review based on an array of procedural bars.

30.

The rights of immigrants facing removal proceedings to effective remedy, including
access to counsel are inadequately protected. The U.S. denies access to counsel in
expedited removal proceedings. The U.S. provides no meaningful access to counsel
for individuals in removal proceedings. Faced with prolonged confinement in poor
conditions, individuals who have valid asylum claims are effectively forced to
stipulate to removal.

31.

The expansion of deportable offenses and limitations on discretionary relief violates
lawful permanent residents’ right to family integrity. Mandatory removal violates
legal permanent residents’ right to individualized review. The U.S. failure to
consider the interests of any minor children violates the right of the child to special
protection.

Counter-terrorism measures and respect of Covenant guarantees (including the
criminalization of dissent and non-refoulement)3
32.

The government monitoring phone, e-mail, and fax communications within and
outside the United States without judicial oversight about which this Committee has
3

Merrilyn Onisko for the National Lawyers Guild and International Association of Democratic Lawyers,
Criminalization of Dissent in the United States: A Shadow Report on the United States’ Obligations under Articles
19 and 21 of the ICCPR; Malcolm X Grassroots Movement, Submission to the United Nations Human Rights
Committee on the occasion of its review of the U.S. Government’s Second & Third Periodic Report concerning its
compliance with the ICCPR, Political Prisoners in the United States; The International Women’s Human Rights
Law Clinic of the City University of New York School of Law, et al., Report on Failure of Compliance with Article
20 Prohibiting Propaganda for War; Submission of Judge Claudia Morcom for the Meiklejohn Civil Liberties
Institute and the International Association of Democratic Lawyers; Minnesota Advocates for Human Rights, et al.,
Problems with United States Compliance with the International Covenant on Civil and Political Rights – Violations
of the Rights of Aliens: A report to the United Nations Human Rights Committee on the Second and Third Report of
the United States of America. See also, Submissions of the American Civil Liberties Union and the Center for
Constitutional Rights.

6

expressed its concern are part of a larger scheme that criminalizes dissent. To this
end, the government is engaged in intelligence gathering that violates Article 17. In
addition to Article 17, the government’s actions violate Articles 18, 19 and 21
because the rights of many are degraded because of their opposition to the “war on
terror.” The United States and local law enforcement agencies have participated in
illegal tactics to disrupt lawful protest and assembly and unlawfully use mass arrests
as a means to sweep political activists off the streets and as a tool for mass
intelligence gathering operations. The Federal Bureau of Investigation (FBI) has
been collecting information on the tactics, training and organizing of anti-war
demonstrators who have done nothing illegal. This violates both the limited
protections provided by the U.S. Constitution and the broader rights recognized in the
Covenant. It follows a historical pattern in the U.S. where dissent is criminalized and
dissenters persecuted for their beliefs. Prior to this most recent reincarnation, the
abuses of the FBI and other law enforcement agencies and officials under the Counter
Intelligence Program (COINTELPRO) led not only to federal laws which the Bush
Administration has chosen to ignore, but also to the politically-motivated trials and
incarceration of scores of political prisoners, many of whom remain imprisoned under
terms and conditions that continue to punish them for reasons including their
opinions, beliefs and associations. The recent nomination and confirmation of
General Michael Hayden to head the Central Intelligence Agency in part because of
his role in the National Security Agency’s surveillance serves as additional evidence
of the Administration’s continuing disregard for both domestic and international law.
33.

Peaceful political demonstrators in the United States have been profiled by
government agencies based on their political or ideological viewpoints; the
organizations to which they belong are being infiltrated by local and federal law
enforcement; and they are being illegally detained, arrested and sometimes beaten
based on their participating in politically expressive activity and/or peaceable
assembly.

34.

This chilling criminalization of the right to assembly by the United States, and its lack
of adherence to its obligations under Articles 19 and 21 can be seen in three instances
in the past five years at which peaceful protesters have been illegally arrested and
interrogated by local and federal agents based on their political opinions: the January
2001 Inaugural protests in Washington D.C., the April 2002 anti-war protests also in
Washington, D.C.; and the anti-Free Trade Association of the Americas (FTAA)
protests held in Miami, Florida in November 2003.

35.

In 1978, a petition to the United Nations filed by the National Conference of Black
Lawyers, the National Alliance Against Racist and Political Repression, and the
United Church of Christ Commission for Racial Justice exposed the existence of
political prisoners in the United States, their political persecution, and the cruel,
inhuman and degrading treatment and punishment they suffer in U.S. prisons. Today,
there are more than 100 political prisoners in the U.S. Some of these prisoners have
been held for over three, and sometimes as long as four decades. Six political
prisoners have died in prison over the last ten years.

7

36.

Article 20 implicitly recognizes that the condition of war jeopardizes the integrity and
exercise of all of the political and civil rights elsewhere declared in the Covenant.

37.

The Committee has expressed concern and requested clarification of actions and
policies of the United States which are in apparent violation of even the core, nonderogable protections States Parties undertake to assure under the treaty. The US
government has sought to justify its actions and policies on the basis of the “war on
terror” and the exigencies of its illegal war in Iraq. Because of the pervasive impact of
war the propaganda campaign prohibited by Article 20, the fear and xenophobia it
stoked, and the resulting illegal war have all contributed to violations, both here and
abroad, of many other rights protected by this Covenant.

38.

While federal regulations implementing Article 3 of the Convention Against Torture
allow individuals to raise Article 3 claims for protection from refoulement, the United
States has failed to create an adequate legal mechanism implementing fully the
obligations of Article 3. Among the shortcomings of U.S. law in this area are the
heightened standards that limit the ability of torture survivors to access protection
from refoulement. U.S. law requires a showing that torture “is more likely than not”
and defines government acquiescence so as to exclude “private entities a government
is unable to control.” These standards are contrary to the requirements of treaties
such as the ICCPR and the Convention against Torture.

39.

The fundamental flaw in the U.S. position may be attributed to the way it chooses to
characterize the rights involved. The U.S. analyzes deportation as a matter of Article
13 which not only applies only to those legally within the United States, but also
exempts from coverage those not legally within the country. Article 7, however, is
non-derogable and applies to aliens regardless of their status. Thus, protections based
on the non-refoulement rule should be available regardless of an individual’s
immigration status. Legislation such as the IIRARA and the REAL ID Act strike a
balance in favor of the perceived needs of national security at the expense of the nonderogable human rights of aliens, placing them at risk of refoulement. This is contrary
to the balance struck, for example, in this Committee’s General Comment No. 15,
where the prerogatives of a sovereign to regulate entry to its territory are limited by
the “inherent right to life, protected by law, [which] may not be arbitrarily deprived of
life.”

40.

The traumatic nature of gender-specific persecution of women often makes them
unable to confront their memories in a timely fashion in order to meet the one-year
filing requirement. Failure to recognize that a disproportionate number of women
require additional time to adequately deal with their memories and narrate their case,
denies the reality of their unique situation and constitutes de facto discrimination.
This contravenes ICCPR Articles 7, 13 and 26 and strips women of the
nonrefoulement protections provided for in the Covenant.

8

Non-discrimination and right of equality before the law and to the equal protection of
the law (Articles 2 and 26)4
41.

Persistent racial and gender profiling by law enforcement officers leads to
disproportionate numbers of people of color, immigrants, women, lesbian, gay,
bisexual, transgender, and intersex (LGBTI) people, sex workers, and youth having
their civil and political rights and freedoms violated by law enforcement officers in
the U.S. This contravenes the Covenant’s non-discrimination provisions.

42.

Although death and destruction were inevitable given the magnitude of Hurricane
Katrina in August 2005, a great many deaths were the direct result of the State Party’s
failure to provide adequate evacuation plans, evacuation assistance, and humanitarian
aid. These omissions violated both the right to life and the principle of nondiscrimination. Specifically, the State Party’s evacuation plans amounted to
discrimination on the basis of property ownership, which had a disparate impact on
racial minorities, in general, and on African Americans, in particular.

43.

Further, the failure of the State party to provide appropriate remedies to the victims of
Hurricane Katrina whose rights were violated constitutes a separate violation under
Article 2(3).

44.

Like many of the victims of Hurricane Katrina, homeless people are discriminated
against on the basis of property and other status. Laws prohibiting sleeping, camping
and sitting in public places, as well as the lack of permanent residences make it
difficult to obtain identification cards, and therefore, housing, employment, and other
services.

45.

Domestic violence is a leading cause of homelessness among women. When these
women are denied housing or evicted from their residences because of the violent acts
of their abusers, it constitutes a form a sex discrimination in housing.

46.

Discriminatory animus also permeates nearly all categories of human rights violations
directed at LGBTI Americans, whether committed by state or non-state actors. In
many cases the discriminatory intent behind other seemingly distinct categories of
human rights violations – including deprivations of life, liberty, health and

4

In the Shadows of the War on Terror: Persistent Police Brutality and Abuse in the United States; U.S.
Human Rights Network and Jean Carmalt, Hurricane Katrina and Violations of ICCPR Articles 6 and 26: A
Response to the Third Periodic Report of the United States of America; Submission of Rev. Daniel Buford for the
Meiklejohn Civil Liberties Institute, International Association of Democratic Lawyers, Peoples Institute, and Allen
Temple; LGBTI Shadow Report; Minnesota Advocates for Human Rights, et al., supra note 3; National Law Center
on Homelessness and Poverty, Homelessness and U.S. Compliance with the International Covenant on Civil and
Political Rights. See also Submissions of the Center on Housing Rights and Evictions and the Lawyers’ Committee
for Civil Rights under Law.

9

opportunity – may not be easily or even logically separated from the animus that
encourages the violation.
47.

Since the last periodic examination of U.S. compliance with the Covenant, the U.S.
Supreme Court has significantly altered the legal framework in the United States
through its decisions in Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas,
539 U.S. 558 (2003). The failure of the U.S. to explain such major legal advances in
its most recent periodic report is highly unusual and raises some concern over the
government’s commitment to enforcing the rights protected in those cases and echoed
in the ICCPR.

48.

While the U.S. Supreme Court has now invalidated the country’s sodomy statutes,
police authorities and prosecutors have in many circumstances selectively made use
of other criminal provisions involving morals offenses to target LGBTI individuals.
Other discriminatory criminal provisions also seem to have survived after the
Lawrence decision, raising serious ongoing concerns over the protection afforded to
consensual adult sexual activity in the United States.

49.

In addition, the legal framework for protecting equality in the United States still
contains significant gaps that fail to protect the non-discrimination rights found in
Articles 2 and 26 of the Covenant. The Fourteenth Amendment's equal protection
provision has not been consistently interpreted either to protect against sex, sexual
identity and gender discrimination or to require the highest level of judicial scrutiny
to assess the constitutionality of sex-, sexual identity-, or gender-based
discrimination. The same can be said for those discriminated against on the basis of
their status as immigrants.

50.

The compounded impact of discrimination against women because of their sexual
orientation requires unique attention, as do the various other intersecting forms of
discrimination based on race, disability, health status, gender identity, gender
expression and sexual orientation. Within the criminal justice system, for example,
lesbian and transgender women face significantly heightened risks of sexual violence
from male officers immediately upon arrest and in custodial detention.

51.

The “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” policy in the U.S. is part of
a 1993 law banning LGBTI Americans from serving openly in the military. This
constitutes a discriminatory limitation on freedom of expression that was originally
intended to loosen federal restrictions by allowing lesbians, gays and bisexuals to
serve in the military so long as they did not publicly disclose their sexual orientation.
Hundreds of Americans are still discharged every year under this policy.

52.

The uncertainty of the legal status of transgender people under state law also has a
significant impact on other rights such as rights in area of family life. For example, in
1999, a Texas court not only invalidated a seven-year marriage between a transgender
woman and her deceased husband, but also refused to recognize damage

10

compensation that was awarded to her for her husband’s death in a medical
malpractice case.
53.

In addition, issues regarding women’s rights and equality vis-à-vis men are raised by
the United States Government’s failure to implement the Covenant with respect to
women’s human rights and discrimination. These issues constitute violations under
several Articles of the Covenant in addition to indicating a lack of implementation of
Article 3 and General Comment No. 28.

Right to life (Article 6)5
54.

In its Concluding Observations regarding the initial report of the U.S. under Article
40 of the ICCPR, this Committee noted specific concerns about the way in which
death sentences were imposed. In the eleven years that have passed since then, the
U.S. Supreme Court has taken important measures to prohibit the application of the
death penalty to juvenile offenders and to the mentally retarded. We applaud those
decisions, and welcome the Supreme Court’s newfound willingness to consider
international law in assessing whether certain aspects of the death penalty violate the
Eighth Amendment to the United States Constitution.

55.

At the same time, and contrary to the Committee’s specific recommendations in 1995,
the U.S. has failed to take measures to restrict the death penalty to the most serious
crimes. For example, the “felony murder” rule allows for individuals to be sentenced
to death, even if they did not kill, intend to kill, or even contemplate that another
human being would die as a result of their actions. Moreover, since the U.S. last
appeared before this Committee, it has taken no steps to reduce the number of crimes
for which individuals are “death-eligible.”

56.

There is ample evidence that death sentences in the United States are imposed
arbitrarily and on the basis of impermissible factors such as race and poverty. These
systemic problems are compounded by the poor quality of legal representation
routinely provided to indigent defendants facing the death penalty. In addition, there
are no uniform standards to guide the discretion of state prosecutors in seeking the
death penalty. As a result, there are enormous geographical disparities in the sorts of
crimes for which the death penalty is imposed. The administration of the death
penalty in the United States therefore violates Articles 6(1) and 26 of the Covenant.

57.

Executions of the severely mentally ill are commonplace in the United States, despite
a Supreme Court decision prohibiting the execution of the “insane.” Ford v.
Wainwright, 477 U.S. 399 (1986). In the last ten years, the U.S. has put to death
5

National Association of Criminal Defense Lawyers, et al. supra note 2; National Law Center on
Homelessness and Poverty, supra note 3; Nicole M. Phillips and Connie de la Vega, representing Human Rights
Advocates through University of San Francisco Frank C. Newman International Human Rights Clinic, Report on
Juvenile Criminal Sentences, the Right to Vote, the Right to Life on the Border and Freedom of Association in the
United States: A Shadow Report.

11

dozens of prisoners suffering from schizophrenia, bipolar disorder, and other
incapacitating mental illnesses. Moreover, the United States has allowed at least one
mentally ill prisoner to be forcibly medicated with anti-psychotic medication so that
he could be rendered “competent” for execution. These practices constitute cruel,
inhuman or degrading treatment or punishment in violation of Article 7.
58.

There is mounting evidence that current lethal injection protocols violate Article 7.
Lethal injection is the most common method of execution in the U.S. While lethal
injection was once believed to cause a painless death, experts have testified that death
by lethal injection can cause excruciating agony. Prisoners have sought to obtain
stays of execution while lethal injection is subjected to further study and analysis, but
courts in several states have repeatedly denied them even a temporary reprieve.

59.

Death row prisoners in states such as Texas and California are routinely subjected to
inhuman and degrading treatment in violation of Articles 7 and 10. Of the thirtyeight states that allow for the application of the death penalty in the U.S., Texas and
California have, by far, the largest number of condemned inmates. The prisons
housing death row inmates in these two states have been severely criticized by the
federal judiciary for imposing inhumane and degrading conditions of detention, and
for failing to provide necessary mental health treatment for incarcerated prisoners.
These conditions have had grave effects on death row inmates’ mental and physical
health.

60.

The conditions of death row confinement cannot be viewed in isolation from the
length of time that prisoners spend on death rows awaiting their executions. As
several international tribunals have recognized, prisoners forced to anticipate their
own deaths face a unique form of mental torment. This Committee has stressed that
the mere length of time that a prisoner spends on death row does not give rise to a
violation of Articles 7 and 10, and we do not quarrel with that conclusion in this
report. Rather, we contend that the inhumane conditions on death rows nationwide,
coupled with the cumulative effects of those conditions on prisoners who typically
spend over a decade awaiting execution, amount to cruel, inhuman or degrading
treatment or punishment.

61.

Homeless people suffer serious health problems that are directly related to their lack
of housing. Being subjected to the elements contributes to illness and death among
the homeless population.

62.

The high number of migrant deaths attributed to both the change in U.S. border policy
and the violence of vigilante groups violates Article 6. After the U.S. changed its
border policy in 1994, entry points in major cities closed and migrants were forced to
cross the U.S.-Mexico border in remote areas such as the Sonoran desert. During the
past year alone, the U.S. Customs and Border Protection agency reported that 464
migrants had died as of September 30, 2005, most of who perished from the extreme
temperatures of the Arizona desert. Following the September 11, 2001 terrorist
attacks on the U.S., there was an increase in the number of militia-like groups formed

12

along the U.S.-Mexico border, some of which have gained the support of white
supremacists. Vigilante groups formed and started hunting, detaining, beating, and
sometimes killing immigrants.
Prohibition of torture and cruel, inhuman or degrading treatment or punishment (Article
7)6
63.

Issues relating to domestic policing highlight the widespread violations of human
rights guaranteed by the Covenant which take place outside of courts and prisons, on
the streets, in patrol cars, and in police precincts across the U.S. Additionally, the
persistent and pervasive police abuse and misconduct in the U.S. interferes with the
enjoyment of other rights guaranteed by the Covenant.

64.

Violations of the Covenant continue to take place on U.S. soil, in the shadows of the
U.S. government’s extraterritorial activities, at the hands of local, state, and federal
law enforcement agents. There are significant similarities – in practices, personnel,
targets, and rationales – between the U.S. government’s human rights abuses overseas
and at home.

65.

The overall climate of the U.S. government’s “war on terror” has led to considerable
abridgment of civil liberties in the U.S. It has fostered torture and abuse of
individuals detained by local and federal law enforcement agencies in the wake of the
events of September 11, 2001, as well as the ongoing targeting of Arab and Muslim
populations in the U.S. It has also created a generalized climate of impunity for law
enforcement officers, and contributed to the erosion of what few accountability
mechanisms exist for civilian control over law enforcement agencies. As a result,
police brutality and abuse persist unabated and undeterred across the country.

66.

The U.S. government refers this Committee to the two reports it has submitted to the
UN Committee Against Torture (CAT) for information concerning its compliance
with Article 7 of the Covenant. In its report to the CAT, the U.S. government
concedes that complaints of police violence and abuse continue to be made, but
states, “In a country of some 280 million people with a prison population of over 2
million people it is perhaps unavoidable, albeit unfortunate, that there are cases of
abuse.” This is a conclusion with which we disagree.

67.

The U.S. has a double standard on the use of mind-altering drugs. On the one hand,
the U.S. understands the intentional infliction of mental suffering by administration of
mind-altering drugs on a person as torture; yet on the other hand it condones the
practice of force drugging when the victim is a person with psychosocial disabilities.

6

In the Shadows of the War on Terror, supra note 4; Tina Minkowitz and Al Gaves, with the assistance of
Celia Brown, Myra Kovary and Eve Remba on behalf of New York Organization for Human Rights and Against
Psychiatric Assault, Mind Freedom International and Law Project for Psychiatric Rights, Alternative Report on
Force Drugging, Forced Electroshock and Mental Health Screening of Children: Violation of Article 7

13

68.

A report by five UN special rapporteurs condemned the force drugging of
Guantánamo detainees as a violation of the right to free and informed consent and its
“logical corollary, the right to refuse treatment”.

69.

Force drugging and forced electroshock violate Articles 7 and 18 of the Covenant.
Maintaining separate standards in relation to people with psychosocial disabilities
violates Article 2. A standard of legal capacity that disqualifies people with
psychosocial disabilities from exercising free and informed consent denies equal
protection of the law in violation of Article 26.

70.

Gender and racial disparities intersect with disability-based discrimination.
Electroshock is administered twice as often to women as it is to men, often under
circumstances that demonstrate a gender-related motive. Force drugging in the
community by court order is used in New York State disproportionately against
people of color, mostly African Americans.

71.

A new model of legal capacity being developed by people with disabilities would
eliminate incapacity determinations and instead provide support to all who need it to
facilitate their decision-making. The support model is based on choice in a context of
interdependence, rather than self-sufficiency, as a paradigm for legal capacity. Since
everyone has a will and is capable of making choices, legal capacity is accessible to
all on an equal basis, with the applicable standard for children being articulated in the
Convention on the Rights of the Child Article 12, a right to freely express their views,
which are to be given due weight in accordance with the child’s age and maturity.

72.

Adoption of the support model of legal capacity is necessary to eliminate
discrimination in the right to free and informed consent, which underlies protection
against medical practices amounting to torture or cruel, inhuman or degrading
treatment or punishment.

73.

Mass screening of children for mental illness with only passive consent by their
parents (i.e. parents can opt out but no affirmative consent is required, and there is no
requirement of consultation with the children at all), with the result that children are
drugged with psychotropics, violates their rights under Article 7.

74.

Violence, torture and extrajudicial killings of persons because of their sexual
orientation, whether committed by state authorities or non-state actors, including
deaths in prison that may be attributed to the failure of prison officials to adequately
protect LGBTI inmates, all raise serious concerns under Articles 6, 7 and 10. There is
evidence of state acquiescence to private misconduct that results in severe abuse.

14

Treatment of persons deprived of liberty (Article 10)7
75.

Nationally, the United States sentences more than 1 million people to state and
federal prison every year, and there are currently 7 million people under correctional
supervision, including more than 2 million in prison and jail. Six percent of the
American adult population has been convicted of a felony. As the American criminal
justice system continues to expand, its burden has fallen most heavily on the poor and
people of color. Their powerlessness and lack of resources make even more urgent
their need for human rights protections at trial, at sentencing and while being held in
custody.

76.

The rapid growth of the prison population has taken place at the same time as crime
and punishment has become deeply politicized, with increasing disrespect for the
dignity and humanity of prisoners. As a result, both deliberate policy and inadequate
resources have led to increasingly inhuman conditions within the United States prison
and jail system that frequently contravene both Articles 7 and 10.

77.

The rights enumerated under Article 14 are generally supported by United States
constitutional jurisprudence. This includes the right to be represented by counsel at
trial and, for indigent defendants facing the possibility of imprisonment, to have
counsel provided to them. However, this basic requirement of a fair trial is often not
met. With three-quarters of criminal cases requiring the public provision of counsel,
a system without a vibrant and well-funded indigent defense system is not sufficiently
meeting the requirements of guaranteeing counsel. In practice, the United States does
not make adequate resources available for indigent defense, and there are no
mechanisms to ensure that states provide competent counsel.

78.

Effective counsel is necessary at all stages of a criminal court proceeding. Ninety
five percent of all criminal cases are settled not at trial but through plea bargains.
Defendants facing long mandatory sentences determined by legislation or strict
sentencing guidelines are very vulnerable to pressure from prosecutors and the
assistance of a skilled and knowledgeable attorney during the negotiation process is
essential.
Without adequate resources to meet the growing need for effective
assistance of counsel for indigent defendants, the US cannot meet its obligations
under the Covenant.

79.

Article 26 recognizes that “all persons are equal before the law and are entitled
without any discrimination to the equal protection of the law.”
Despite this
internationally accepted norm, a double standard of justice has been evident in
criminal sentencing in the United States, particularly for drug offenses. The national
prison population has more than tripled since 1980, with nearly half of that population
being black, although African Americans constitute only 12 percent of the U.S.
population. The increase in the prison population is neither in response to rising crime
7

Domestic Criminal Justice Issues and the ICCPR; Women’s Institute for Leadership Development for
Human Rights, et al., supra note 2.

15

nor an indication of more criminal activity by blacks. Instead, it is a reflection of
more stringent penalties in the form of mandatory minimum sentences, particularly
the penalty disparity between crack and powder cocaine.
80.

Endemic overcrowding leads to greater levels of violence, lack of privacy, excessive
noise, inadequate programs and lack of essential services, including healthcare.
Especially at risk in these conditions are the large number of mentally ill within
prisons and jails. The mentally ill are overrepresented among those sent to super
maximum security (“Supermax”) prisons. In these prisons, people spend a minimum
of 23 hours a day in small cells with almost no interaction with other people, limited
activities, sensory deprivation, and harsh security restrictions. Confinement in a
supermax can be devastating for anyone, but for the mentally ill it surely constitutes
torture.

81.

In addition to the inhuman treatment suffered by all prisoners, women are especially
at risk for sexual abuse and humiliation, and inadequate medical and obstetric care,
including shackling during childbirth. Approximately five percent of women
reportedly arrive pregnant in jail, and approximately 2,000 babies are born to U.S.
prisoners every year. Moreover, female inmates frequently are not provided with the
means to exercise their rights to abortion services.

82.

Women prisoners, who are more likely than their male counterparts to be the primary
caretakers of dependent children, are disparately impacted by the loss of contact with
their children. The separation from children and the risk of losing parental rights is
gravest for those in private, for-profit prisons who are often held in different states
from where their families reside making it almost impossible to maintain contact with
their children. Prisons are patriarchal systems which attempt to restrict women’s
choices not only about their bodies but also their offspring. After incarcerated women
bear children, their offspring are placed in either kinship or foster care. If a child is
placed in foster care, mothers often irreversibly lose their children without due
process. Even worse, reunification is often at the whim of individual case workers.

83.

In addition, LGBTI persons in detention are subjected to sexual, physical and verbal
abuses. Abuses carried out under these circumstances constitute intersecting
violations of ICCPR provisions. In particular, violations of Article 9 are most
common when police or custodial officers fail to protect LGBTI persons or
deliberately place them in harm’s way. Police reliance on an individual’s “deviance”
from stereotypical gender norms as a ground for suspicion or police targeting
individuals adds to this risk for LGBTI persons.

84.

California, home to approximately 10 percent of the nation’s prison population, is an
example of the gravity of human rights concerns facing imprisoned populations. The
mistreatment of inmates incarcerated in California prisons has resulted in a spectrum
of abuses that particularly impact marginalized populations including transgender
persons, women, the elderly, youth, the disabled, and the mentally ill. Prisoners face

16

multiple forms of discrimination and are subjected to violence based on their gender
and racial identities, economic status, age and sexual orientation.
85.

In direct opposition to its obligations under the ICCPR, U.S. legislation such as the
Prison Litigation Reform Act (“PLRA”) effectively prevents many prisoners from
seeking redress in federal court. Under the PLRA, federal court supervision over
prison systems failing to maintain humane conditions in their facilities automatically
terminates unless the court can make detailed factual findings of a current and ongoing constitutional violation. This drastically reduces the ability of the courts to
remedy human rights violations in prisons. In addition, the PLRA caps the attorney
fees that can be recovered in cases filed by prisoners and limits the tasks for which
fees can be awarded. In effect, this discourages attorneys from representing even
prisoners with strong cases.

86.

Congressional legislation like the Prison Rape Elimination Act (PREA) of 2003 exists
to address sexual violence. States such as California, however, have not taken action
to implement PREA-based recommendations to provide safety in its correctional
complex or to hold perpetrators accountable for custodial sexual misconduct.

87.

Asylum seekers are detained under unsuitable conditions and personnel at the
institutions where they are detained are not given adequate training to understand and
work with asylum seekers.

Freedom of association (Article 22)8
88.

Employed in private homes to perform household tasks that historically have been
assigned a diminished value, domestic workers frequently face exploitation and
abuse, a problem further exacerbated by their association with particular groups
(women, minorities, and migrants) who suffer multiple forms of discrimination.
Domestic workers experience abuses ranging from verbal abuse and economic
exploitation to physical and sexual assault and forced servitude. Although U.S. laws
should protect them, domestic workers find that they are often excluded from legal
protections or that the laws are not enforced. This reprehensible abuse of domestic
workers violates Articles 2, 3, 7, 8, 9, 12, 17, 19, 21, 22, and 26.

89.

The 2002 U.S. Supreme Court case Hoffman Plastic Compounds, Inc. v. NLRB
violates Article 22’s right to freedom of association, including the right to form and
join trade unions. Hoffman removed the traditional back pay remedy for
undocumented workers whose rights have been violated under the National Labor
Relations Act (NLRA), effectively eliminating any association rights for these
workers. Without these rights, undocumented migrant workers have little incentive to
report workplace abuses, which in turn decreases the accountability of employers who
exploit the migrant workforce. Many employers in the United States have attempted
8

Global Rights and the University of North Carolina Law School Human Rights Policy Clinic, supra note
2; Phillips and de la Vega supra note 5.

17

to use the Hoffman decision as a way to weaken other workplace protections for
migrant workers. This decision has both directly and indirectly affected the rights to
equal protection and nondiscrimination for this vulnerable group of migrant workers
in irregular status. The Supreme Court’s decision represents an impermissible
favoring of immigration policy and national security over even the limited human
rights protections afforded the right to associate under the NLRA. The U.S. has also
failed to protect the existing labor rights of migrant workers on the Gulf Coast
following Hurricane Katrina.
90.

The Inter-American Court of Human Rights and the ILO’s Committee on Freedom of
Association have issued opinions stating that the Hoffman decision violates the
country’s international and regional treaty obligations.

91.

Twenty-two states in the U.S. have further undermined the right to freedom of
association by enacting so-called “right to work” laws. These laws prevent unions
from collecting fees from nonmember employees, while still guaranteeing those
employees the benefits of union membership. The result is weaker unions with
inadequate resources to represent their members. Consequently, workers in states
with so-called “right-to-work” laws have lower wages, fewer people with health care,
higher poverty and infant mortality rates, lower workers’ compensation benefits for
workers injured on the job, and more workplace deaths and injuries.

92.

The U.S. Government offers as examples of its protection of the right to “expressive
association” two highly controversial decisions of the U.S. Supreme Court in Boy
Scouts of America v. Dale, and Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston. In both cases the Supreme Court was required to balance freedom
of expressive association, which protects the right of individuals to associate freely
with those expressing similar political, social or cultural views, with state prohibitions
on discrimination based on sexual orientation. The outcome in each of those
decisions raises serious non-discrimination concerns, and it is particularly offensive
that the U.S. Government’s periodic report raises the decisions within such a positive
context and without a more complete discussion of their impact on LGBTI
Americans.

Protection of children (Article 24)9
93.

The United States fails to recognize the right of children in conflict with the law to
procedures that take account of their age as required by Article 14 or the more general
requirements for the special protection of minors required under Article 24 of the
ICCPR. State legislation routinely allows children, in some cases as young as ten
years old, to be subject to adult criminal proceedings. Once in the jurisdiction of
criminal court, child offenders lose the protections that they would have received in

9

LGBTI Shadow Report supra note 4; Women’s Institute for Leadership Development for Human Rights
supra note 2; Phillips and de la Vega supra note 5; Domestic Criminal Justice Issues and the ICCPR supra note 7.

18

the juvenile court which takes account of their status as children and are eligible for
adult sentences including life in prison without the possibility of release.
94.

While the number of new commitments of children to adult prisons has declined from
its peak, the Department of Justice’s latest figures show more than 9,000 children in
adult prisons and jails with more than 4,000 children per year entering the adult
system, 70 percent of them youth of color. When the United States ratified the
ICCPR, it attached a limiting reservation stipulating that it “reserve[d] the right, in
exceptional circumstances, to treat juveniles as adults.” Clearly, however, given the
numbers involved, the circumstances in which children are treated as adults is far
from exceptional. It is a routine and everyday occurrence.

95.

Confining children within adult prisons and jails not only contravenes Article 14 but
also Articles 7 and 10 as their youth and vulnerability make the conditions they face
particularly inhuman and damaging. Children in adult prisons and jails are at
increased risk of suicide and sexual and physical abuse by guards and other prisoners.
The sentence of life without the possibility of release for children is an extreme form
of cruel and inhuman punishment that denies any possibility of rehabilitation.

96.

Children’s detention facilities fail to meet the requirements of the ICCPR. The
manner in which children are detained discourages them from pursuing their right to
seek asylum and other forms of relief. Juvenile aliens’ access to counsel is
insufficient.

97.

Discrimination, abuse and misconduct against LGBTI youth remains particularly
severe. Verbal, physical and sexual violence directed at LGBTI youth in schools, in
juvenile detention facilities and in foster care is prevalent. The government’s failure
in this context to guarantee adequate protection to LGBTI youth raises serious
concerns under Article 24 of the ICCPR. LGBTI associations in schools have also
come under attack. And an increasing number of children face economic challenges
due to the government’s failure to recognize same-sex relationships involving their
parents, or their same-sex de facto step-parents. If a parental figure is unable to
establish a legal relationship, a child is often unable to claim health insurance or
social security survivor benefits.

Voting and Political Participation (Article 25)10
98.

In the United States, felony disfranchisement laws are adopted at the state level and
thus have resulted in wide disparities in both the terms and the application of the
laws. Serious problems exist in the procedures for removing voters from electoral
databases because of a felony conviction, as well as in the education of public

10

Terry M. Ao, et al., Violations of Article 25: A response to the U.S. Second and Third Periodic Reports
and to CCPR/C/USA/Q/3: On issues related to the right to vote and participate in public affairs. See also
Submissions of the American Civil Liberties Union and the Lawyers’ Committee for Civil Rights under Law.

19

officials charged with upholding the laws. There is also significant variance in state
determinations of which crimes will result in disfranchisement.
99.

In the April 2006 elections in Orleans Parish, tens of thousands of voters were denied
access to voting because the U.S. Government failed to take actions to accommodate
those displaced by Hurricane Katrina. Despite precedents set by the responses to
other disasters including the September 11, 2001 attacks in New York City, the
federal government chose to provide only a fraction of the financial assistance
requested by the Louisiana State government to hold these elections. Of particular
concern, the impact of the denial of voting rights for the displaced population was
racially disparate. A review of the April voter turnout shows a significant drop
among African-American voters and an actual increase in the percentage of white
voter turnout.

100.

The residents of Washington, D.C., pay taxes like any other U.S. resident, but they
are denied representation in the federal legislature. In December 2003, the InterAmerican Commission on Human Rights ruled that the U.S. Government is in
violation of international law because Washington, D.C., residents have no
representation.

20